Pritchard v. Commissionaires Great Lakes, 2012 HRTO 1466

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Pritchard Applicant

-and-

Commissionaires Great Lakes, Donna D’Arcy, James Watts, Karen Courser, Richard Kedzierski and Tom Prins Respondents

DECISION

Adjudicator: Brian Eyolfson Date: July 26, 2012 Citation: 2012 HRTO 1466 Indexed as: Pritchard v. Commissionaires Great Lakes

APPEARANCES

Timothy Pritchard, Applicant Self-represented

Commissionaires Great Lakes, Respondent Phillip Day, Representative

Karen Courser, Respondent Karen Courser, Self-represented

Donna D’Arcy, James Watts, Richard Kedzierski and Tom Prins, Respondents No one appearing

Introduction

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 16, 2010, and alleges discrimination with respect to employment on the basis of disability. The Application names the Commissionaires Great Lakes (the “Commissionaires”), and members of the Commissionaires’ “executive” at the time the applicant’s employment was terminated, as respondents.

2The applicant began employment with the Commissionaires on March 10, 2008. He indicates in his Application that he was employed as a Director of Professional Services. He alleges that he was diagnosed with severe arthritis, and on May 6, 2010 he informed his employer that he would be having hip replacement surgery on June 16, 2010, and that he would require 8 to 12 weeks off work. He proposed that his time off be funded by 23 days of accumulated sick time, two weeks of accumulated vacation, and an advance of his annual vacation time.

3The applicant alleges that, on June 9, 2010, he was verbally advised that his employment was terminated, and he received a termination letter on June 22, 2010. He believes that the respondents did not want to pay him during his sick time and terminated his employment as a cost saving measure.

4In their Response to the Application, the respondents explain that, at the time the applicant was employed, his duties included responsibility for the Commissionaires’ training academy, which was a relatively new and untested venture. Based on the uncertainty of this venture, the applicant’s “letter of appointment” was clearly crafted to allow either party to end the employment relationship on short notice.

5The respondents assert that, in time, the applicant’s job requirements were changed, and, over the succeeding months, the results achieved by the applicant were found to be less than expected. They submit that a decision was made to totally restructure various functions and departments, and, over a period of time, three positions were eliminated. As well, in June 2010, the applicant’s position was made redundant. The Commissionaires deny both that the termination of his employment was “untimely”, as alleged by the applicant, and that the termination was designed to avoid any obligation for sick pay or medical leave. The respondents submit in their Response that two other employees recently took extended sick leaves for hip and knee replacements.

Request for an Order During Proceedings

6One week prior to the hearing, the applicant filed a Request for an Order During Proceedings (“Request”) to amend his Application with respect to his requested remedy. The Tribunal addressed the Request at the outset of the hearing. As there was no objection to the requested amendment from the respondents in attendance at the hearing, the Request was granted.

EVIDENCE

7The applicant and the individual respondent, Karen Courser, gave evidence at the hearing. The parties also provided the Tribunal with several documents.

Background

8Ms. Courser explained that the Commissionaires employ front-line security guards, and provide security services and training. It appears from Ms. Courser’s evidence, and documents provided by the parties, that the Commissionaires have Central, Western, and Northern Region offices in Toronto, London, and Barrie, Ontario, respectively. It also appears from the evidence that, although the Commissionaires’ “Offer of Employment” to the applicant stated that his normal place of business would be at their Central Region office in Toronto, he worked in London, Ontario.

The applicant

9With respect to the respondents’ Response to his Application, the applicant testified that he understands and believes their position regarding restructuring; however, he disagrees that there was any performance issue.

10In his evidence, the applicant largely questioned the timing of the termination of his employment, relative to his hip replacement surgery. He testified that he was hired on March 10, 2008, and his employment was terminated on June 9, 2010, four business days before his scheduled surgery.

11The applicant testified that, as of May 6, 2010, his direct manager and everyone around him knew his surgery was coming. He referred to his email dated May 6, 2010 to Rick Kedzierski, confirming his hip replacement was to take place on June 16, 2010. In his email, the applicant states that the surgeon indicated it would be 12 weeks before he could return to work, but “everyone” he spoke to said he would likely be back in the office in 8 weeks. He therefore proposes in his email to use 23 sick days, as well as vacation days, to cover 41 work days for the period of June 16 to August 13, 2010. He testified that he was also going to use an “advance” on vacation days which was not uncommon in the organization. In his email, he also raises the possibility of working from home for periods, once he recovers, in an effort to save vacation time. He testified that he did not receive a “denial” in response to his email.

12The applicant testified that on June 7, 2010, Mr. Kedzierski contacted him for a copy of his job offer, stating the purpose was to review the applicant’s role at an executive meeting the next day (June 8, 2010). The applicant testified that he asked Mr. Kedzierski if he was “looking for the termination clause” in his job offer, and Mr. Kedzierski said that was “not the case”.

13The applicant testified that on June 8, 2010, he called Mr. Kedzierski, and Mr. Kedzierski did not respond to his phone calls and emails. Later that day, Phillip Day, Human Resources Manager, asked the applicant if he would be in on June 10, and the applicant said “no” because he had to go to Hamilton. Mr. Day asked the applicant if he would be in the following day (June 9, 2010), and the applicant confirmed he would. Mr. Day said that he wanted to discuss “sold training” with him.

14The applicant testified that on June 9, 2010, Mr. Day arrived around 10:30 a.m. and acknowledged that the applicant knew why he was there, and they had a discussion. The applicant testified that he asked to see “the letter” but there was no letter, as the CEO was not around to create one, so he did not get a letter that day. The applicant testified that Mr. Day said that he was sent down to do it “verbally”. He testified that Mr. Day said the executive had “voted”, and his employment ended on June 9, 2010.

15A letter to the applicant dated June 9, 2010, and signed by the Commissionaires’ President and CEO, James Watts, states, in part, as follows:

A thorough evaluation of the business direction of the company indicates a need to re-structure some functions and departments. This letter will confirm that today, you were advised that Commissionaires Great Lakes (the company), has decided to apply the termination provisions detailed in the accepted ‘Offer of Employment’ provided to you in March 2008.

In accordance with the terms of the original agreement, you have been paid three months salary in lieu of statutory notice. You have also received all payroll monies owed to you to date, both as salary and vacation payout. …

16The applicant testified that on July 20, 2010, the Commissionaires posted an “Account Executive” position, which was a broad sales position for all sales and services. The position required location in either the Toronto or London areas, with travel in central and southwestern Ontario. The applicant explained that, in late 2009, the Director of Operations in London submitted a sales plan that included having the applicant do general sales in the Western Region, but he was kept to just sales of training. He testified that some of his numbers with respect to sales were greater on products other than training. He testified that this was the first job ad he saw that was reasonably close to what he had done with the Commissionaires.

17The applicant testified that the job he was recruited to do with the Commissionaires changed somewhat over time, in that his duties changed to focus on the sale of training.

18The applicant also testified that a “Manager, Sale of Training” position was posted by the Commissionaires on September 28, 2010. He testified that this position was very directly related to the position he held, and that there were “many correlations” between his job and this posted job. He questioned why there was a need to fill his position if they were restructuring.

Karen Courser

19Ms. Courser testified that she was part of an executive team of five individuals with the Commissionaires, and that the applicant was part of the management level below the executive level. She explained that when business declined, they needed to reduce overhead. She testified that business declined in 2009, and referred to an Account Manager and a Manager of Identification Services positions being eliminated during that period. Ms. Courser explained that, in providing security services, the product is the front-line workers, so management, instead of front-line workers, are cut.

20Ms. Courser testified that, in order to improve business, the executive focussed more on sales to drive up business again. With respect to sales, she testified that the Commissionaires had a Director of Sales and a fluctuating level of sales persons. She believed they had one direct sales person selling guard services, primarily. She testified that the applicant was hired to be the Director of the Commissionaires’ training academy, which was a vehicle to sell training products (the applicant’s Offer of Employment is for the position of “Director Commissionaires Security Training Academy”). She testified that, essentially, sales and product development were based in Toronto, whereas the applicant was based in London and it was not a successful endeavour.

21Ms. Courser confirmed that the applicant’s responsibilities changed during his employment. At some point, he also managed their internal training and had some role in the sale of guard services as well. She testified that, in the spring of 2009, the applicant changed back to the training academy, and internal training was taken away. She testified that the new emphasis on the training academy was not successful.

22Ms. Courser testified that they needed to reduce overhead in the London region, or it could have meant the demise of that region. She testified that they could not continue to operate at a loss. She referred to a re-focus on sales, primarily in the Greater Toronto Area, as opposed to London.

23Ms. Courser testified that the executive discussed overhead costs in London, including training, the training academy, administrative staff, and account managers. She testified that they discussed the applicant’s initial letter offering employment, including the termination and severance provision. She confirmed that the applicant was paid three months severance, and testified that the sales position in London was never re-filled.

24Ms. Courser testified she was aware, in the spring of 2010, that the applicant needed a hip replacement. She testified that the executive team talked about it, in the context of any health issue regarding any employee, and were aware he would need time off, but it was not a factor in the decision to eliminate his position. She testified that, in the spring of 2010, they had a big project for a short period of time, but other business was declining at the time.

25Ms. Courser testified that two other staff required hip replacements and their employment was not terminated. They were off for a number of weeks and returned to work. She also testified that, after the elimination of the applicant’s position, and the two other positions she referred to in 2009, they reduced staff in the Northern Region. She testified that two more account manager positions were eliminated.

26With respect to the Sale of Training Manager position posted on September 28, 2010, Ms. Courser testified that they sought to replace that position in the Greater Toronto Area, but not in London, and the position was filled in Toronto.

27Lastly, Ms. Courser confirmed that there was no monetary value for sick days when employment was left (the applicant’s Offer of Employment indicates that sick days are earned at the rate of one per month, and may be accumulated indefinitely, but unused sick days have no monetary value).

ANALYSIS AND DECISION

Relevant Code provisions

28Sections 1 and 9 of the Code state as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of… disability.

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

29In addition, “disability” is defined in s. 10(1)(a) of the Code, in part, as follows:

10. (1)(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…

Assessment of credibility

30To the extent that any issues addressed in this Decision turn on my assessment of the credibility of the parties, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

Does the applicant have a disability within the meaning of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

31The applicant indicated in his Application that he was diagnosed with severe arthritis, and confirmed, at the hearing, that he had hip replacement surgery on June 16, 2010. The applicant testified that following his surgery, had his employment not been terminated, he would have been able to return to work around the beginning of September 2010. The respondents did not dispute that the applicant has a disability within the meaning of the Code.

32In the circumstances, I am satisfied that the applicant’s medical condition requiring him to have hip replacement surgery, and be absent from work for approximately 2.5 months, constitutes a disability within the meaning of the Code.

Was the applicant subjected to discrimination on the basis of disability when his employment was terminated?

33In his submissions, the applicant acknowledged that the respondents were allowed to restructure, but he repeatedly questioned the timing of the termination of his employment as occurring just before he went off on sick leave. He also questioned why the respondents then took steps to fill a very similar position.

34The respondents maintained that the sole reason for terminating the applicant’s employment was financial, and submitted that it was unfortunate that it occurred at the same time that he was about to have surgery.

35Having carefully considered the parties’ evidence and their submissions, for the reasons that follow, I find that the applicant’s pending disability-related absence from work was a factor in the termination of his employment.

36I accept the applicant’s evidence, which appears to be undisputed, that he was asked for a copy of his job offer on June 7, 2010, and told that his role would be reviewed at an executive meeting the next day. Later the next day, when the applicant indicated that he was not available on June 10, 2010, Mr. Day arranged to meet with him on June 9, 2010. When they met on June 9, 2010, the applicant’s employment was terminated.

37The applicant also testified that he did not receive a termination letter when his employment was terminated on June 9, 2010, as the CEO was not around to create a letter. The applicant’s allegation in his Application that he received a termination letter dated June 9, 2010, on June 22, 2010 was not disputed by the respondents, and the applicant agreed in cross-examination that he “eventually” received the letter.

38Also, it appears that the applicant’s main responsibility at the time his employment was terminated was to sell training. The applicant testified that his duties changed to focus on the sale of training, and Ms. Courser testified that the applicant was hired to sell training products, and while his responsibilities changed during his employment, there was a change back to an emphasis on the training academy. Although it is not entirely clear from the evidence, it appears that the applicant’s main responsibility of selling training was transferred to a “Manager, Sale of Training” position in the Toronto area. The applicant testified that this position was very directly related to, and had many correlations with, his position. Ms. Courser testified that they sought to replace the position in Toronto, but not London. However, this position was not posted until September 28, 2010, close to 4 months after the applicant’s employment was terminated, and was later filled in 2011.

39In my view, the decision to terminate the applicant’s employment, and the communication of that decision to him, appears to have occurred with considerable haste, and his employment was terminated approximately five business days before his scheduled hip replacement surgery. At that point, the applicant had been employed by the Commissionaires for over two years. In addition, the respondents do not appear to have taken steps to find a replacement for the applicant’s primary responsibility of selling training until more than 3.5 months after his employment was terminated, and I note that this occurred during a time after which Ms. Courser testified the executive was focussing more on sales in order to improve business. I also note that, while the Commissionaires paid the applicant 3 months severance in accordance with the terms of his Offer of Employment, they were not required to pay him for over 4 weeks of accumulated sick days that he had proposed to use while recovering from his surgery, when they terminated his employment. Although Ms. Courser denied that the applicant’s hip replacement surgery was a factor in the decision to eliminate his position, she testified that she was aware the applicant needed a hip replacement, and the executive team talked about it and were aware he would need time off. In my view, there is sufficient evidence to draw an inference, on a balance of probabilities, that the applicant’s pending time off work for surgery was a factor in the decision to terminate his employment.

40With respect to the respondents’ position that the applicant’s employment was terminated due to restructuring, it appears from the evidence that it is quite possible that, had the applicant’s employment not been terminated when it was, his position in the Western Region would nevertheless have been restructured at a later date. In particular, I have no reason to doubt Ms. Courser’s evidence that there was a need to reduce overhead in the Western Region, and that other positions with the Commissionaires were eliminated. In addition, it appears that many of the applicant’s responsibilities were transferred to the “Manager, Sale of Training” position in the Toronto area, and Ms. Courser testified that they replaced that position in the Greater Toronto Area, but not in London. The position in the Greater Toronto Area, however, was not posted until September 28, 2012, and not filled until sometime in 2011. In the circumstances, I do not find that the respondents have established that, had the applicant not informed them that he required time off for surgery, restructuring of the applicant’s position would have occurred prior to his scheduled departure for surgery.

41In any event, as set out below, I have found that the applicant was provided with 3 months severance when his employment was terminated on June 9, 2010, and that he commenced comparable employment within 3 months of the termination of his employment. In the circumstances, it is not necessary for me to determine if the applicant’s employment would nevertheless have been terminated at a later date due to restructuring, or if there were other positions with the Commissionaires that he could have and would have taken, had his employment not been terminated when it was, such as the “Manager, Sale of Training” position that was later filled in the Toronto area. I note that when asked if the applicant could have been employed by the Commissionaires in the Greater Toronto Area, after his surgery, Ms. Courser testified that she did not know.

42As I have found that the applicant required time off for surgery due to a disability within the meaning of the Code, and that this was a factor in the decision to terminate his employment, I find that the applicant was subjected to discrimination, contrary to the Code, when his employment was terminated approximately 5 business days prior to his scheduled surgery. Although it is not clear who, besides Ms. Courser, was involved in the decision to terminate the applicant’s employment, the decision appears to have been made by members of the Commissionaires’ executive team at the time. I also note that the applicant does not dispute that the individual respondents were acting on behalf of the organization. In the circumstances, I find the Commissionaires, and not the individual respondents, to be liable for the violation of the Code when the applicant’s employment was terminated.

REMEDY

43The Tribunal’s remedial powers are set out in s. 45.2(1) of the Code, which provides, among other things, the power to order monetary compensation and restitution for loss arising out of the infringement, including compensation and restitution for injury to dignity, feelings and self-respect. The Tribunal may also direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.

44The applicant seeks monetary compensation in respect of lost income and interest, and for a career coach and other financial burdens. He also seeks compensation in respect of mental anguish, reputation damage, family stress and embarrassment.

Lost income

45While the applicant seeks compensation for ongoing lost income, he testified that, at the end of his convalescence, he was recruited to go back to a former employer. He signed a contract on the Friday before Labour Day weekend 2010, and began employment the day after Labour Day, working as a branch manager of security operations. He testified that he worked there until January 27, 2011, and his salary was approximately $7,000 less than what he submits he earned with the Commissionaires. When asked why he left that employment, the applicant was not very clear, and testified that the employment was in Cambridge.

46It is also undisputed, and I find, that the applicant was provided with 3 months severance when his employment with the Commissionaires was terminated on June 9, 2010. In my view, the applicant fully mitigated any losses with respect to income when he commenced comparable alternate employment the day after Labour Day 2010, and the evidence does not support a finding of liability on the part of the Commissionaires for any lost income after that point.

Injury to dignity, feelings and self-respect

47Prior to section 45.2(1) of the Code coming into force, the Tribunal had identified the relevant criteria to be used in assessing the appropriate award of damages to compensate for the infringement of rights enumerated in the Code which have an intrinsic value and for mental anguish. See Sanford v. Koop, 2005 HRTO 53. Although the remedial provisions of the Code no longer refer to “mental anguish”, the Tribunal has found the criteria developed in previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect. See S.H. v. M(…) Painting, 2009 HRTO 595, and Hughes v. 1308581 Ontario, 2009 HRTO 341. The Divisional Court, in ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425, held that the following are among the factors that Tribunals should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

48The applicant submits in his Application that, as a result of the respondents terminating his employment, he was not able to fully and properly look for work during his convalescence. He submits that this placed him under a significant financial burden, and created a significantly high stress level on him and his family, and left him with a feeling of embarrassment, despite knowing that he did nothing wrong. It was also apparent from the applicant’s demeanor, when giving evidence at the hearing about the dismissal, that the termination of his employment had upset him.

49I accept that the applicant felt embarrassed when his employment was terminated. I also accept that it would have been stressful for the applicant to have lost his employment approximately five working days prior to his hip replacement surgery, and that his recovery from surgery would have impacted his ability to search for other employment. In all of the circumstances, and considering that the applicant ultimately did find and commence alternate employment at the end of his convalescence, I find an award of $10,000 to be appropriate compensation for for the impact of the discriminatory termination of his employment, attributable to the Commissionaires, on the applicant’s dignity, feelings and self-respect.

Future compliance

50The applicant did not request any remedy with respect to future compliance. I note that the Commissionaires indicate in their Response that they have a complaint process to deal with discrimination and harassment. I also note that Ms. Courser testified that she is no longer with the Commissionaires, and only one of the five executive team members from the time the applicant’s employment was terminated is still with the Commissionaires. In these circumstances, I decline to order any remedy with respect to future compliance.

ORDER

51The Tribunal orders as follows:

1. Within 30 days of the date of this Order, the respondent, Commissionaires Great Lakes, shall pay the applicant $10,000.00 for injury to dignity, feelings and self-respect, inclusive of pre-judgment interest; and

2. Post-judgment interest is payable on any of the above amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act.