HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David McLarry
Applicant
-and-
Universal Supply Group Inc. and Peter Hall
Respondents
DECISION
Adjudicator: Kaye Joachim
Indexed as: McLarry v. Universal Supply Group
APPEARANCES BY
David McLarry, Applicant ) On his own behalf
Universal Supply Group Inc. and Peter Hall, ) Andrea Risk, Counsel
Respondents )
1This is an Application filed June 23, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A hearing was held on March 1, 2010 in Kingston.
2The applicant filed a human rights complaint with the Ontario Human Rights Commission on May 17, 2006 alleging discrimination in employment on the basis of colour. The applicant was hired as a driver of the corporate respondent in August 2005 and his employment was terminated in May 2006. He asserts that one of the factors in his termination was that a customer who considered him a “Paki” complained about his work performance. The applicant is not a person of colour, but believes that the customer may have perceived him as such given his colouring.
3I should address early on the fact that the applicant does not self-identify as a person of colour. However, he asserts that he was perceived, wrongly, as a person of colour and referred to by the racial slur of “Paki” a term often used in a derogatory manner to refer to persons from the South Asia.
4The human rights jurisprudence has established that a person who is perceived to be a member of protected group is also protected against discrimination on a prohibited ground under the Code.
5The respondents assert that the applicant was terminated solely for performance related reasons and they were unaware of the “Paki” comment prior to the decision to terminate.
6I heard from the applicant, the personal respondent Peter Hall, store manager, Keith Graham, President, Keith Brousseau assistant manager, Peter Penfold, operations manager, and Art Sweeney, driver.
Assessment of Credibility
7All the witnesses testified in a straightforward believable manner and appeared to give credible testimony. However, some of the testimony was inconsistent in a manner which cannot be explained by failing memories or misperceptions. Thus I must make a decision about credibility.
8There were two key areas where the parties’ evidence was diametrically opposed. First, the applicant asserts that he had never been counselled about his performance prior to the termination of his employment in May 2006. The respondents claim that they had spoken to the applicant numerous times about his attitude and performance.
9While the applicant may not have perceived the discussions as formal disciplinary sessions, I accept the respondents’ evidence that the discussions took place and the respondents expressed some concern about the applicant’s attitude or driving. The applicant’s total denial that these conversations took place troubles me. To accept the applicant’s evidence would require me to find that four of the respondents’ witnesses were fabricating their evidence. While that scenario is certainly one that can occur, in this case, I do not believe that the preponderance of probabilities supports that conclusion. The respondents’ witnesses made several concessions and put forth a witness who supported part of the applicant’s evidence. In my view, if the respondents were intent on presenting a false defence, all five witnesses would likely have participated and the respondents’ evidence on their failure to investigate would not have been given so forthrightly.
10Second, the applicant submitted a letter, dated April 26, 2006, addressed to Mr. Hall in which he raises the customer’s reference to him as a “Paki.” The first time the applicant submitted that letter to the Commission, the Tribunal, or the corporate respondent, was in 2009. The respondents deny having seen that letter prior to 2009.
11I find that the failure to make reference to this extremely relevant letter in either the original complaint or the applicant’s reply to the respondents’ response in March 2007 is telling. It seems to me that the letter is so relevant that while it may not have appeared to be necessary to attach it to the original complaint, it would certainly have been important to attach it to the reply to the respondents’ response. The letter directly refutes the respondents’ assertion that they were unaware prior to termination that the applicant had been referred to by a customer by the term “Paki.”
12Accordingly, the following chronology is based primarily on the respondents’ evidence. I accept the applicant’s evidence where it is uncontradicted by the respondents.
The Evidence
13The applicant testified that, in October 2005 when he made a delivery to a customer in Westport, the client told a racist joke about “Pakis.” The applicant was not particularly offended although he did not laugh. On two other undated occasions, the client made negative comments about “Pakis.” The applicant did not report these comments to anyone at the corporate respondent and he did not perceive these comments as being directed at himself. This evidence is uncontradicted and I accept the applicant’s evidence.
14Although the applicant passed the three month probationary period, the store manager, Peter Hall detected early signs of unsatisfactory work performance by the applicant. On one occasion he observed the applicant resisting being sent on a delivery by the dispatcher on the basis that it was not the applicant’s turn. Mr. Hall advised the applicant that it was not his job to question the dispatcher and he should accept assignments from the dispatcher without complaint.
15On another occasion, Mr. Hall received a complaint from a member of the public who asserted that a driver driving unsafely had almost caused a collision on a specific highway. Mr. Hall learned from the dispatcher who was driving on that highway at the time and learned it was the applicant. When he asked the applicant about the incident, the applicant’s response was that “it wasn’t that close”. He did not appear to accept any responsibility for his actions.
16Another incident occurred when a driver notified Mr. Hall that the applicant had been stopped by police near a school crossing. When Mr. Hall confronted the applicant about this, the applicant responded that it was not an issue as he had not received a ticket, only a warning. Mr. Hall testified that the applicant appeared unable to understand that, when driving vehicles with the respondents’ corporate logo, he had a duty to be extra vigilant.
17Mr. Brosseau also testified about an occasion when the applicant appeared to be resisting a dispatch assignment. Mr. Penfold testified about an occasion in March 2006 when the applicant had allegedly been rude to a person in the benefits department when deductions began to be made from his pay for mandatory benefits. The person in the benefits department had written a letter of complaint dated March 26, 2006, prior to the filing of the complaint.
18As I stated earlier, the applicant denied each of the above incidents and any conversations with anyone about them. For the reasons expressed above, I prefer the respondents’ evidence to that of the applicant and accept that the applicant was advised that the respondents perceived his conduct to be unacceptable.
19In April 2006 a colleague, Art Sweeney, advised the applicant that a client (the “Westport client”) had referred to the applicant as a “Paki.” Mr. Sweeney testified that he understood the comment to be a nickname, similar to Mr. Sweeney’s nickname of “smoothie” in reference to Mr. Sweeney’s baldness. Mr. Sweeney agreed that there may have been other drivers around when he mentioned this. He denied that the client had expressed any view against having the applicant attend at his workplace, which is not consistent with the applicant’s evidence. It is not necessary to resolve this particular inconsistency.
20On May 7, 2006, Mr. Hall received a telephone call from that same client in Westport, asking that the applicant not be dispatched to the client’s premises again. Mr. Sweeney advised Mr. Hall that the applicant had expressed reluctance and “sighed heavily” when asked to return a product to the store.
21Mr. Hall determined that this was the last straw and after consulting with Mr. Penfold, decided to terminate the applicant’s employment for poor performance. Mr. Hall reported the customer’s complaint and reviewed his prior concerns about the applicant’s performance and advised the applicant that his employment was terminated. The applicant was reluctant to accept the decision, questioning whether the latest complaint was that serious and necessitated his dismissal and asking whether he could attend other clients instead.
22Mr. Hall explained that it was not the corporate respondents’ intention to avoid the issue by sending him on different routes, and that his employment was terminated. The applicant seemed reluctant to accept the decision. Almost as an afterthought, the applicant stated, “You know he calls me a “Paki.” The applicant’s evidence is somewhat different, as he suggests that he immediately questioned whether the customer complaining was the one who called him “Paki.” It is unnecessary to resolve this discrepancy.
23Mr. Hall’s reaction was extreme surprise and he stated something to the effect, “what does that have to do with anything.” The meeting ended. Mr. Hall testified that he did not ask himself whether or not the allegation might be true, as he did not perceive it as relevant.
24Similarly, when the applicant filed the human rights complaint immediately after his termination and it was delivered to the respondents in August 2006, despite the applicant’s assertion that other workers could confirm that he had been referred to as a “Paki,” neither Mr. Hall nor anyone in the corporate organization thought the allegation was relevant. From their perspective, the applicant was raising this allegation as a last ditch effort to somehow save his job.
25The client who made the alleged racial slur was not called to testify to explain that, either he had not made the racial slur or that, notwithstanding his racial slur about the applicant, the complaint about the applicant’s work performance was justified.
Analysis and Decision
26The respondents assert that the issue before me is whether the applicant’s employment was terminated because of colour and urged me to accept the evidence of their witnesses that the termination was based solely on performance issues. They also urge me to accept that management did not know of the alleged “Paki” comment prior to communicating the decision to terminate. I do accept their evidence that Mr. Hall terminated the applicant’s employment because of perceived performance problems.
27The respondents further assert that, having terminated the applicant’s employment on May 7, 2006, the applicant’s assertion, immediately after his termination, that a client called him “Paki” is not relevant and does not oblige the respondents to conduct any investigation as the employment relationship had ended.
28I do not agree with that assertion. Where the culminating incident involves a customer complaint and the applicant has told the employer that the customer who complained had previously referred to the employee as a “Paki”, the employer has a duty to investigate that allegation and consider whether the customer complaint is legitimate, notwithstanding the racial slur.
29This employer did nothing to investigate, either following the applicant’s assertion or the filing of the complaint.
30I find that the employer had an obligation to investigate the legitimacy of the complaint having been informed that the client who made the complaint apparently believed that the applicant was a person of colour and that the client apparently referred to the applicant as “Paki.” A reasonable person might question whether the client’s complaint might have been influenced by his negative views of persons of colour if he was inclined to refer to them by derogatory terms.
31While Mr. Hall testified that he thought the issue was simply irrelevant, Mr. Graham, the owner was more blunt. He simply did not believe the applicant at the time he received the complaint and thought the applicant was raising this allegation falsely to obtain a financial settlement.
32Accordingly, no one in the company bothered to ask the applicant who the co-worker was who had allegedly told him about the “Paki” comment. Neither did anyone in the company do their own internal investigation of employees to determine whether the allegation was true.
33When the applicant identified the co-worker who advised him of the client’s comment in his statement of additional facts filed in 2009, the respondent did speak to this co-worker, Art Sweeney. Mr. Sweeney confirmed that at least on one occasion, the client had referred to the applicant as a “Paki.” This information could and should have been discovered in 2006 upon a simple inquiry to the applicant’s co-workers or the applicant himself.
34At this point in 2009, the corporate respondent implemented a new Code of Conduct and instructed all employees of their obligation to report such comments. However, no one has ever spoken to the client about the inappropriateness of referring to the respondents’ employees in such terms.
35I find that the corporate respondent was advised by the applicant at the time of the termination meeting that the customer who had made the complaint had also called the applicant a “Paki.” This ought to have raised a concern in the respondents’ mind whether the complaint was justified. While this customer complaint was consistent with Mr. Hall’s own experience with the applicant, it should nonetheless have been investigated. While the customer complaint was not the sole reason for the termination, it was nonetheless a factor in the decision to terminate.
36I recognize that Mr. Hall was somewhat surprised and taken aback by the sudden allegation raised by the applicant. Nonetheless, he had time to reflect after the applicant left the workplace and he could have consulted with superiors and conducted an investigation even at that stage. He did not do so. As was subsequently learned, the applicant’s allegation was in fact true, and the very client who had complained was the same one who referred to the applicant as a “Paki.”
37Accordingly, I find that the final culminating factor, tainted as it was by an apparent racial bias on the part of the client who made the complaint, should not have been taken into account and used in the decision to terminate the applicant, until a further investigation into both the alleged comment and the role if any it played in the final complaint was determined. This was never done.
38I find that the applicant’s right to be free from discrimination in employment was infringed on the basis of colour (or in this case, his perceived colour), contrary to section 5 of the Code and that the applicant’s termination of employment was contrary to the Code.
Remedy
39The applicant sought a remedy of one year’s wages in the amount of approximately $17,000, damages of $10,000 for breach of his rights under the Code, a letter of apology, reinstatement or a letter of reference, and human rights training for the respondents.
40The applicant’s evidence of job search was extremely vague and unsatisfactory. The respondents did not cross examine the applicant on his claim for damages or make any submissions on remedy. I have considered whether the parties should be given a second opportunity to address the remedial aspects of this Application.
41I note that I did question the applicant about his claims for damages both in chief and in reply. There was no request by the parties or decision by the Tribunal to bifurcate the hearing to separate remedy from liability. It is the practice of the Tribunal to hear all issues relating to liability and remedy, unless the Tribunal makes a decision otherwise.
42I have concluded that both parties had the opportunity to call evidence and make further submissions about remedy and they chose not to do so.
43Accordingly, I make the following remedial decisions.
Lost Wages
44The applicant’s documents establish that he earned approximately $666.50 every two weeks, based on an hourly rate of $7.75 over a 44 hour work week. The applicant testified that he was unemployed for approximately one year following his dismissal from the corporate respondent and that he eventually found work in the restaurant business as a kitchen helper in April 2007. He testified that he looked for work unsuccessfully throughout the year. He did not look for work as a driver in Perth as he had been fired from his previous job as a driver and instead chose to look for work in the restaurant field.
45The applicant did not submit any evidence of his efforts to find alternative employment, nor did the respondents submit any evidence of employment opportunities which the applicant could have obtained during that year of unemployment. I do not accept that the applicant could not have extended his search to alternative driving opportunities and I find that his failure to do so is demonstrative of a failure to mitigate his losses. I also find it difficult to believe that the applicant was not able to find any employment at the level of kitchen helper in the restaurant field for a period of one year.
46Accordingly, I assess the applicant’s lost wages as a period of 16 weeks, as I find that had he looked for work as a driver or a kitchen helper he would likely have found it within 16 weeks. I calculate the applicant’s lost wages at $665.50 every two weeks for 16 weeks as $5,324.00.
Reinstatement
47The applicant testified that he was seeking reinstatement because his employment at the corporate respondent was unique. The applicant had previously experienced a workplace injury and had been given labour market training to perform work in recording and scheduling and distribution. His work as a driver with the corporate respondent met those labour market goals and his medical restrictions.
48I did not hear any evidence from the applicant that his job as a kitchen helper since 2007 was not within his medical restrictions or incompatible with his long term future prospects. On the contrary the evidence submitted by the applicant was that he was still successfully employed by his current employer in December 2009.
49Further, in light of my conclusions with respect to the applicant’s lack of credibility, I cannot find that it would be appropriate to place the applicant back in that workplace. He has made allegations that I have held to be unfounded and that would seriously and negatively affect any effort to reintegrate him into that workplace.
Monetary Compensation for Injury to Dignity
50The applicant’s evidence was that he was not offended by the client’s comments about “Pakis” until he understood that the client perceived him as one. When he believed his employment was terminated because of a comment by a person who may have been prejudiced against persons of colour (which he was not), he felt that this was unfair.
51The applicant’s evidence of impact was minimal despite my questions to him to on this point.
52In the unusual circumstances of this case, I am unable to conclude that the applicant suffered any degree of injury to his dignity because of his colour or perceived colour.
53I do not find that this is an appropriate circumstance to award any compensation for breach of the Code beyond lost wages.
Letter of Apology and Training
54I do not find that a letter of apology would be appropriate in these circumstances. The respondents sincerely believed they were dismissing the applicant for performance issues. I have accepted that the alleged performance issues were largely legitimate The fact that the final incident was tainted by the respondents’ misunderstanding of their obligation under the Code to investigate the specific allegation raised in this case is not one that should attract the serious remedy of a letter of apology, even if I were authorized to make such an order.
55I am also not satisfied that this is a case where the respondents require further re-training to understand their obligations to comply with the Code. I understood from the evidence of the President that they now fully understand their obligations under the Code and have taken steps to educate themselves and their employees.
Order
56The respondents are ordered to pay the applicant the sum of $5,324.00 as lost wages, plus interest in accordance with the Courts of Justice Act, less applicable statutory deductions within 30 days of the date of this Decision.
57If the respondents do not pay this amount within 30 days, post-judgement interest at the rate of 2%, in accordance with the Courts of Justice Act will begin to accrue from 30 days after the date of this Decision.
Dated at Toronto, this 9th day of May, 2011.
“Signed By”
Kaye Joachim
Member