Keating v. Thompkins, 2011 HRTO 220

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Keating

Applicant

-and-

Myles Thompkins

Respondent

case Resolution Conference DECISION

Adjudicator: Ailsa Jane Wiggins

Date: January 31, 2011

Citation: 2011 HRTO 220

Indexed as: Keating v. Thompkins

AppearanceS

Anthony Carlos Keating, ) Self-represented Applicant )

Myles Thompkins, ) Self-represented Respondent )

INTRODUCTION

1This Application was filed on November 20, 2008, under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on April 28, 2007 and abandoned upon filing this Application with the Tribunal.

2The applicant alleges that he was discriminated against in his employment on the basis of disability.

3By Interim Decision, 2009 HRTO 298, the Tribunal advised the applicant that as a result of a Receivership Order this Application was stayed against the corporate respondent, CPI Plastics Group Ltd. In response, the applicant indicated that he no longer wished to proceed against the corporate respondent, but wished to continue the Application against the personal respondent, Myles Thompkins. By Interim Decision, 2009 HRTO 1173, the Application against CPI Plastics Group Ltd. (the “employer”) was dismissed.

4The Tribunal sought submissions from Mr. Thompkins on the applicant’s request to continue the Application against him personally. Mr. Thompkins did not provide any submissions. The Tribunal scheduled a Case Resolution Conference (“CRC”) in this Application as against Myles Thompkins.

SUMMARY OF ALLEGATIONS AND EVIDENCE

5At the CRC I heard testimony from the applicant and the respondent. Both were unrepresented and there were no other witnesses. At the time of the incidents that lead to the Complaint, the respondent was the manager of the employer’s plant where the applicant worked.

6In May 2005 the applicant injured his thumb at work. The employer offered him modified duties but he had difficulties performing those duties. He testified that when he told the respondent about his problems the respondent yelled at him and told him that he had to perform the modified duties. The respondent would then telephone the Workers Safety and Insurance Board (“WSIB”) and the WSIB would side with the employer.

7The respondent testified that as plant manager he was responsible for health and safety and he participated in return to work programs with the assistance of the employer’s human resources department. He said that it was the employer’s obligation to accommodate an injured employee by offering modified duties. He described how the process was handled by the WSIB.

8The respondent testified that after his injury the applicant came to him with more and more tasks that he said he could not perform. The respondent and the employer’s human resources department spoke to the WSIB about alternate positions for the applicant but the WSIB did not approve any other position for the applicant. The respondent said that there were conference calls with the WSIB and that during one of those calls the adjudicator explained the return to work process to the applicant. The applicant was emotional, loud and angry, but when the process was explained to him he would settle down, only to get angry again later.

9On January 4, 2006, the applicant wrote to the WSIB appealing their decision that he could perform the modified duties at 100% capacity. In the letter he refers to the WSIB’s suggestion that he was “creating animosity” with his employer and to the fact that in a conference call with the WSIB he was warned that his WSIB claim may be disallowed if he refused to perform the modified duties approved by the WSIB.

10The applicant testified that in August 2006, after speaking to 50 or 60 of his co-workers, he believed that everyone in the plant except him had received a raise. He asked the respondent about it and was told that he would not be getting a raise because he was on modified duties. The respondent testified that it was corporate policy that “employees on WSIB” did not get wage increases because they were not working at full capacity. It was not the respondent’s decision. Who did and did not get an increase was determined by employer management more senior than the respondent. The most he could do was influence the amount of an increase, not who was eligible for an increase. He said that in fact not everyone at the plant got an increase.

11In August 2006 the applicant was one of a number of employees laid off. The employer consulted the WSIB and believed that it had the right to lay the applicant off. Later, after further discussions with the WSIB, the applicant was reinstated and paid for his missed time.

12After surgery on his thumb in September 2006 the applicant was advised by his doctor to take some time off work. This lead to a dispute with his employer and the WSIB. Both refused to compensate him and he claimed to have lost approximately 300 hours since July 1, 2006. He said that he did not speak directly to the respondent about this but he believed that it was the respondent who made the decision not to pay him.

13The respondent testified that this was between the WSIB and the employer’s human resources department, he was not involved. The respondent testified that he had no payroll responsibilities and has no knowledge of any money that may be owing by the employer to the applicant for lost time.

14In November of 2006 the applicant was finding his 12 hour shifts painful and his doctor recommended that he work only 8 hours per day. As his normal work week was 42 hours, the employer required him to work 6 days a week.

15On November 22 and 28, 2006, mediations were held at the WSIB and a return to work agreement was prepared but it was not clear whether all parties executed the agreement. The respondent attended the mediations as did representatives from the employer’s human resources department. After the second day of mediation the respondent told the representatives from the human resources department that they should be taking the lead and dealing with the applicant.

16In December 2006 the WSIB advised the employer that there were no objective clinical findings to support the reduced hours while on modified duties. The employer wrote to the applicant on January 2, 2007 advising him that in light of the information from the WSIB he should return to seven 12 hours shift per two week period, effective January 3, 2007. The applicant was upset with this decision but did return to the 12 hour shifts. He began to take time off due to pain and the medication he took for it. He had a second operation in February 2007.

17A letter from the employer’s human resources department dated April 3, 2007 refers to a recent WSIB decision regarding lost hours and ongoing modified duties. The letter indicates that a copy was sent to the WSIB.

18The applicant continued to be unhappy with the modified position provided by the employer and approved by the WSIB. He testified that he had a trade and that the modified position, extrusion operator, is not a tradesman position. He found the job stressful and complained about exposure to chemicals. He believed that the employer was trying to get him to quit.

19The applicant filed his Complaint on April 28, 2007. The respondent resigned from the employer about six months later, on November 7, 2007. The applicant also resigned from the employer having found employment elsewhere. On January 28, 2009 the employer was ordered into receivership.

Decision

20The applicant’s allegations of discrimination relate to the incidents that occurred during the employer’s attempt to implement a return to work through the WSIB process following the applicant’s workplace injury. The employer is no longer a party to this Application. Even if actions of the employer were discriminatory, the respondent, as plant manager, can only be held responsible if he personally discriminated against the applicant. I find that he did not.

21The applicant claimed damages for failure to get a raise in August 2006. The decision not to give the applicant a raise because he was on modified duties may have been discriminatory but I accept the testimony of the respondent that he did not make that decision. It was a corporate decision made at a level of management above him. At the CRC the applicant also appeared to accept that explanation. He did not suggest that it was the respondent’s personal decision not to give him a raise.

22The applicant claimed damages for lost hours. I accept the respondent’s testimony that payroll was not part of his responsibility. It was handled by the employer’s human resources department. The respondent was not personally involved in the disputes over lost hours. Even if the applicant was owed money for lost hours, he was owed that money by his former employer, not by the plant manager personally.

23There is no doubt that the applicant found the WSIB return to work process upsetting. The modified duties were in a new position that he did not like. He was angry with his employer and the WSIB. I do not accept that the respondent was the only person who raised his voice. I think it more likely that all those involved in the various meetings and conference calls raised their voices at each other at one time or another. As noted above, the applicant’s own letter to the WSIB refers to the WSIB’s suggestion that he was “creating animosity” with his employer. In my view the evidence did not support a finding that the respondent discriminated against the applicant.

24For these reasons the Application is dismissed.