Chi Nghiem v. Frendel Kitchens Ltd., 2011 HRTO 717

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chi Nghiem Applicant

-and-

Frendel Kitchens Ltd. Respondent

DECISION

Adjudicator: David Muir

Date: April 13, 2011

Citation: 2011 HRTO 717

Indexed as: Nghiem v. Frendel Kitchens

APPEARANCES

Chi Ngiem, Applicant ) Jennifer Mendolson, Counsel

Frendel Kitchens Ltd., Respondent ) Kevin Coon, Counsel

1This is an Application filed on June 24, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A hearing was held in this case on February 17, 2011 in Toronto in accordance with the expectations expressed in the Code and the Tribunal’s Rules that these applications be adjudicated in a fair, just and expeditious manner. I heard from the applicant, and three employees of the respondent, Mike Draganjuc, Drago Dolic and Rob Deltin. A Cantonese interpreter was provided by the Tribunal for the applicant who stated that he did not speak English.

3In the human rights complaint forming the subject matter of this Application (the complaint) the applicant alleged that his right to be free from discrimination in employment on the basis of disability was infringed by the respondent. The applicant made the following particular allegations:

a. On October 25. 2004 he developed “terrible pain through my neck and my left arm and my legs” and requested permission from a supervisor, Drago Dolic, to go to his doctor which was granted;

b. Dr. Dang diagnosed tendonitis and prescribed rest from October 25 to October 30, 2004. The applicant alleges that he provided a note to this effect to his supervisor on October 25;

c. Despite the doctor’s note his employer begged him to report for work on October 26;

d. He reported to work on October 26 believing that, because the employer knew of his disability, he would be assigned light duties;

e. The applicant states that he worked a lighter job in the morning but that this caused him pain. The applicant alleges that after lunch Dolic moved him to a very physically demanding job. The applicant states that he advised his supervisor that he could not comply with the request because he had barely been able to keep up with the less physically demanding work in the morning. The applicant alleges that he told Dolic that he could not work because of the pain. He claims to have reminded Dolic of the doctor’s note and the fact that he had only come to work because of his sense of loyalty to the employer;

f. The applicant was ordered to report to the office where he met with Mr. Draganjuc who refused to acknowledge his pain or the doctor’s note. The applicant was terminated at the meeting;

g. At a subsequent meeting on November 2, 2004 the owner observed that the applicant’s supervisor could not operate the very heavy physically demanding drill press and said that the company should let both the applicant and his lead hand work the machine or they both should be fired. The applicant alleges that he was fired and the lead hand was not.

4The Application is dismissed.

5I am not satisfied that the applicant ever advised the respondent that he was experiencing pain or that the pain he might have been experiencing was preventing him from performing his normal duties. Accordingly, when the respondent terminated the applicant’s employment on October 26, 2004 for what it perceived to be an unreasonable refusal to perform his normal duties, the employer had no reason to be aware that the applicant was claiming to be a person with a disability and seeking an accommodation. My reasons for these conclusions follow.

6In some ways this was a difficult case to decide, largely because the circumstances surrounding the applicant’s termination are so odd. For example while I have concluded that the applicant did not advise the employer that he was a person with a disability and requiring some form of accommodation, it is also reasonably clear that at the material times the applicant may have been experiencing some difficulty at least to the extent that his family physician prescribed rest and a muscle relaxant which he may or may not have taken.

7A partial explanation might be that, as the applicant repeatedly said during the course of the day, if his English was better he would not have lost his job. The applicant’s English appears to be very limited. As a result an interpreter, another employee, was made available to the applicant at the critical junctures in the narrative of this unravelling employment relationship. However it remains a possibility that the language barrier interfered in communications between the applicant and his employer.

8Ultimately however the resolution of this dispute turns on the credibility of the applicant’s evidence in contrast to that of the respondent’s witnesses. After considering all of the evidence and materials filed in evidence I prefer the evidence of the respondents on the key issues in dispute. I have come to that conclusion based on a number of significant internal inconsistencies in the applicant’s versions of events as well as what I find are stark contrasts in some respects between the allegations made in the complaint and the evidence the applicant gave at the hearing.

9There are really two key issues that need to be resolved in this case. First whether the applicant was a person with a disability at the time and in need of accommodation. Second, was the respondent made aware of the applicant’s need for an accommodation. I am not prepared to accept the applicant’s evidence going to either of these two issues.

10There is little doubt that the applicant may have been experiencing some level of physical difficulty at the time or just prior to his termination. However the extent of his injury or impairments are unknown as the only evidence to support it are the clinical notes and records of the applicant’s doctor which record that he attended there on October 25, 2004. The clinical notes which are not entirely legible indicate that the applicant was complaining of arm pain bilaterally. There does not appear to be a diagnosis despite the claim in the complaint, but the notes indicate that the physician prescribed rest, including that the applicant should be off work until October 31, 2004. The physician also seems to have prescribed celebrex which I understand is a muscle relaxant. The doctor’s note the applicant gave to the employer adds nothing as it advises only that the applicant will be off work for several days due to illness, despite the claim in the complaint that the note would have informed the employer of a diagnosis of tendonitis.

11I also note that the physician’s clinical notes do not correspond to the applicant’s allegation in the complaint that on the 25 he was experiencing terrible pain “through my neck and my left arm and my legs”. As indicated the applicant complained to his physician of arm pain bilaterally, there is no reference at all to leg pain.

12The applicant’s evidence was also devoid of any explanation for why he felt unable to perform his normal duties at any material point in time other than stating that it caused him pain. Based on this limited evidence there is some considerable doubt about the extent of his disability, if any, at the material times. I am also troubled by the quite different claims of pain in the complaint as compared with the clinical notes of his physician. The applicant did not call his physician as a witness to clarify these issues.

13More troubling are significant differences between the allegations made in the complaint about the actions of the respondent employer and the evidence ultimately offered by the applicant at the hearing. For example, in his complaint the applicant alleged that when he returned to the workplace on October 25 and gave the doctor’s note to his supervisor, Mr. Dolic, he “emphatically requested, almost begged” the applicant to return to work because the company was so busy. A slightly less emphatic version of this allegation was repeated at the hearing in his evidence in-chief but completely abandoned when challenged in cross-examination. In the end the applicant agreed that Mr. Dolic told him to stay home if he was ill and to return to work when he was feeling better. This is entirely inconsistent with the allegation made in the complaint. I also note that the word invariably used by the applicant to describe his physical situation at the time was that he was sick. Mr. Dolic confirmed that his understanding was that the applicant was not feeling well or was ill on October 25.

14The applicant also stated in his complaint that because Mr. Dolic knew he was disabled based on the doctor’s note, he expected that would be assigned light duties when he came to work. On the contrary the note does not indicate that the applicant was disabled only that he should be off work due to an undisclosed illness.

15More significantly the applicant did not testify that there was any discussion of light duties, only that Mr. Dolic told him that he should go home if he was feeling unwell and return to work when he was feeling better. In fact the applicant attended work the next day because, as he said to me in response to a question, he was feeling better and resumed his regular duties.

16The applicant stated in his complaint that on October 26 his supervisor Mr. Dolic approached him after lunch and asked him to move to from a light duty job to a “very physically demanding” machine. This allegation was contradicted by the evidence of the applicant in several respects. At first the applicant testified that he worked until 11 a.m and then the pain became too much and he asked to rest but was told that he had to speak to Human Resources about that. In this version of events it is at this point that the applicant testified he was asked to move to the Koch machine. Later in his evidence he testified that no one approached him about moving to the Koch machine but that he had done it on his own and then finally he agreed that the lead hand Miro, made the initial request to set up and operate the Koch machine. He then agreed initially, that Miro brought Dolic to the work area and that Dolic had repeated the request but then changed his evidence again to state that no one ever asked him to set up and operate the Koch machine that he did it on his own after lunch and then he left.

17In addition to these internal inconsistencies in the applicant’s evidence I also note the applicant’s claim in the complaint that that he was asked to move from a light job to a very heavy job is not supported by the evidence at all. Although the evidence is limited on this point, it would be impossible to conclude that the Koch machine was heavier than the applicant’s regular duties and indeed it appears, as asserted by the respondent’s witnesses, to have been lighter work.

18Another factor affecting my assessment of the applicant’s credibility is the un-contradicted evidence that the respondent had accommodated many individuals in the work place, some for extended periods of time. The applicant acknowledged that the respondent had accommodated his spouse before his termination, indeed the evidence of the respondent is that she is still employed there and is still being accommodated with light duties due to a medical condition. The applicant acknowledged these facts at the hearing and expressed his gratitude. Of course this does not necessarily mean that the employer did not ignore the applicant’s request for an accommodation as alleged but I have considered the applicant’s allegations against that background.

19In contrast the evidence of the respondent’s witnesses was given in a straightforward manner and was for the most part internally consistent and did not contradict other statements made by the respondent at different times. The respondent’s witnesses readily conceded when they could not remember a detail and on occasion conceded that the applicant’s recollection of an event might be more accurate than their own. In this regard I have also considered that the respondent’s witnesses conceded that after the applicant’s termination he did tell the employer that he had refused to do the work because he was mad and his arm hurt, which as I suggested to one of them was perilously close to what the applicant claimed was said albeit at an earlier point in time.

20For all of these reasons I am unable to accept the applicant’s evidence on the key material points in dispute unless corroborated by other evidence or the surrounding circumstances.

21Following from this central conclusion on credibility the material facts based on the evidence are as follows. The applicant was employed by the respondent employer for approximately 18 years. He was a skilled and valuable employee. The respondent manufactures kitchen cabinetry.

22There is no dispute that the applicant was absent from work on October 25 and, although the respondent states that it did not know it at the time it does not dispute that the applicant attended at his family doctor that day. The clinical notes and records of his family physician indicate that the applicant did attend his doctor on October 25. The respondent also does not dispute that the applicant’s physician provided him with a note from his doctor that indicated that the applicant should be off work for several days due to illness the nature of which is not identified in the note. The respondent also acknowledges that the applicant provided a doctor’s note to that effect on October 25.

23The respondent largely disputes the remainder of the applicant’s allegations. The respondent denies that the applicant approached it and asked to leave the workplace to attend at his doctor on the 25. On the contrary it states that the applicant disappeared from work and then reappeared later in the day with his children apparently to pick up his wife and drop off the doctor’s note.

24It is agreed that the applicant reported for work the next day. As indicated he testified that he was feeling better, again there is no real evidence of what his difficulties were the day before. In any event he resumed his normal duties. Mr. Dolic recalls seeing the applicant and asking him how he was doing. The applicant denies that this occurred, but given the passage of time it is possible that he has forgotten.

25The applicant worked the morning at his regular job – the through feeder. This machine process panels for kitchen cabinetry. At some point late in the morning the applicant was approached by his lead hand to set up and operate another machine the Koch machine. As indicated above, despite the applicant’s claim that this was a very heavy job, the available evidence suggests the opposite and at a minimum it was no heavier work than the work the applicant had been performing that morning.

26Beyond the fact that he resumed his normal duties the applicant’s evidence of what happened that day is confused as set out above. It is common ground that the applicant at some point refused to set up and operate the Koch machine. In chief as indicated earlier the applicant initially testified that the refusal to work did not occur on the shop floor but in the human resources offices, however I find that an initial discussion took place in the work area. It is agreed however that there was a further discussion in the office of Mr. Draganjuc.

27The applicant’s evidence of what was said here was initially quite limited. He testified that he explained the situation to the employer and reminded them of the doctor’s note. He testified that Mr. Draganjuc responded that this (the note) was different. When specifically asked if he told the employer why he would not do the work, he responded that he told them that he would not do it because of pain in his hand and foot. Unlike other aspects of his evidence the applicant did not withdraw or significantly vary his evidence that he told the employer on October 26 that he would not do the work because of pain in his hand and his foot. I note again that there is no mention of foot pain in the family doctor’s notes at the material times.

28The respondent’s witnesses who were in attendance at this meeting, Dolic and Madjurac, gave different and largely consistent accounts of what occurred that day. There is no need to describe their evidence in detail, suffice it to say that their evidence was that the applicant offered a number of different reasons for his refusal in a meeting that lasted up to an hour. Both witnesses testified that in their view the applicant’s actions were inexplicable to them, however because he was a valued employee they took the time to try and understand what was going on. Both also testified that in the end the applicant said that he would do the work if they gave him a raise. This proposal was refused and the applicant was told that he should report to the Koch machine or he would be considered to have abandoned his employment. The applicant said that he was not quitting but that they could fire him. In the end his employment was terminated that day. Mr. Draganjuc testified that after he was fired the applicant said something to the effect that he would go home and made a passing reference to his arm being sore.

29The respondent met again with the applicant on November 2, 2004 a little more than a week later. There is a dispute about a number of things regarding this meeting, but in my view none of these disputes are material as the applicant’s employment had already been terminated at that point. From the perspective of the employer they were prepared to hear the applicant out and if there was some reasonable explanation for his refusal to perform his duties on October 26 and/or some acknowledgement of what he had done he might have been rehired.

30It is common ground that the applicant did not apologise for what the respondent perceived to be insubordination. It is agreed by the respondent that the applicant when asked directly why he had refused to do the work by the owner of the respondent, Tony Deltin, the applicant began his response by speaking about another incident several weeks prior to October 26 but then did say that his arm had been hurting, that he was on medication and that he was angry about that. Mr. Draganjuc testified that, when he heard that, he told the meeting that this is not what had been discussed at the time with no apparent response from the applicant. In the end the respondent did not accept the applicant’s explanation and he was not re-hired.

31The applicant states that whatever happened before the November 2 meeting, it is clear that as of that point in time the respondents had sufficient information to at least make enquiries and that their failure to do so was a violation of the Code. I do not agree in these circumstances. I do agree that if the applicant had said that his arm was sore and he was on medication and he was angry about that on October 26, there likely would have been an obligation to inquire further. However this limited information was only offered after the applicant’s employment had been terminated. There may be situations where post-termination information provided to an employer might give rise to an obligation to reconsider an employment decision such as a termination but I am not persuaded that, on these facts, the respondent has violated any obligation under the Code in not doing so.

32It is fair to say that as a long term and valued employee the respondents were puzzled by what they perceived to be his insubordination on October 26. . In an effort to try to understand what had happened and to give the applicant a chance to win his job back they chose to engage with him one last time. In the end the respondents simply did not accept the applicant’s explanation and believed that the claim that he was angry about a sore arm was simply another excuse.

33The decision to terminate had been made based on the information the applicant made available to the respondent at the time. It is not the Tribunal’s job to second guess that decision except to the extent that it might have engaged the protections of the Code. What was said that day by the applicant must be considered in context – the applicant had been terminated for insubordination when the applicant did not provide a reasonable explanation for his behaviour although given an extensive opportunity to do so. He did not tell the applicant that he could not perform his work because he of an injury or impairment. I also note that the nature of the alleged disability is such that if it was sufficient to interfere with his work it would have been evident to the applicant and perhaps others. It is not an “invisible” disability such as depression or diabetes that might not be as readily apparent to the applicant or others. Given the overall weakness in the applicant’s evidence on the nature of his physical difficulties and the other issues I have found with the applicant’s credibility it may be that the respondent’s judgement that there never was a significant issue with the applicant’s ability to perform his work duties is accurate.

34It is in the end not my task to try to explain the inexplicable behaviour of the applicant. My task is simply to determine if the respondent was made aware of the allegation that the applicant was a person with a disability and in need of accommodation at any point before his employment was terminated. For all of the reasons set out above I accept the respondent’s evidence that they were not made aware of such a claim in a timely way. As such there is no basis to allow this Application and it is dismissed.