Graham v. Wal-Mart Canada Corp., 2012 HRTO 1817

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linton Graham Applicant

-and-

Wal-Mart Canada Corp. Respondent

DECISION

Adjudicator: Judith Keene Date: September 24, 2012 Citation: 2012 HRTO 1817 Indexed as: Graham v. Wal-Mart Canada Corp.

APPEARANCES

Linton Graham, Applicant Self-represented

Wal-Mart Canada Corp., Respondent Kathryn Bird, Counsel

Introduction

1This is a Decision in respect of an Application filed on May 12, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment, because of race, place of origin, age, ancestry and colour. The main allegation was differential treatment; the applicant alleged that, during his employment, all of the cleaning staff except him were given a rotational schedule that allowed each person to get one weekend off per month. The respondent asserted that it adopted a policy in 2002 that required regular weekend work for staff in the applicant's position, that the only cleaners who were not required to work regular weekends are staff who worked "with Woolco prior to Wal-Mart opening in 1994" and staff hired before 2002, and that the applicant knew in 2006 that he was being hired to work weekends. The Response indicates that only three of the ten overnight cleaners were not required to work every weekend, that this was because these three were hired prior to 2002, and that the applicant was given this explanation when he asked. As noted below, the evidence given by the respondent at the hearing indicated that there were in fact four overnight cleaners who were not required to work every weekend, but I do not find this to be a material discrepancy.

2The Notice of Application had been sent by mail to the respondents on May 25, 2009. The applicant's employment was terminated after this. The respondent's Response, documentary evidence and witness will-say statements indicate that the decision to terminate the applicant's employment was the last stage in a period of progressive employment discipline, that the decision to terminate was taken on May 28, 2009, and that the persons who took the decision to terminate had no knowledge of the Application at that time. The applicant, who was unrepresented, had not alleged that the loss of his employment was a reprisal for the purposes of s. 8 of the Code. Pursuant to Rule 1.7 h of the Tribunal's Rules of Procedure, I raised this as an issue and dealt with it in the course of the hearing in this Application.

3This matter was heard as summary hearing, with the focus on whether there was a reasonable prospect that the applicant could prove, on a balance of probabilities, that his Code rights were violated. The summary process was the result of the failure of a lengthy attempt to allow the unrepresented applicant a reasonable opportunity to meet his pre-hearing disclosure obligations.

4As noted above, the Application was filed May 12, 2009. Mediation did not result in a settlement, and the matter was scheduled for a hearing on October 26, 2010. On October 18, 2010, the applicant requested and received an adjournment because of serious illness in his immediate family. Over the following months, the Tribunal made several unsuccessful attempts to contact the applicant, who had not updated his contact information, before finally hearing from him and setting further dates for hearing to commence on October 13, 2011.

5Despite reminders in Case Assessment Directions dated September 15, 2010, and September 9, 2011 of their obligation under Rule 17 of the Tribunal's Rules of Procedure to file witness lists and statements of each witness' expected evidence, the respondent did not file its documents until October 11, 2011; counsel for the respondent later indicated that filing was delayed because the applicant could not be contacted for personal delivery. The applicant did not meet his filing obligations.

6The applicant did not attend the hearing on October 13, 2011. At the hearing, counsel for the respondent brought to my attention e-mail correspondence from the applicant that had been sent to the respondent on October 10, 2011, and to the Tribunal on October 12, 2011 at 7:15 PM. The correspondence, which included a letter from a doctor dated October 10, 2011, indicated that the applicant's wife was hospitalized in Intensive Care. I refused a request that the Application be dismissed, but issued a CAD on October 17, 2011 directing the applicant to file specified information on or before October 31, 2011, failing which the Application might be dismissed as abandoned. The October 17, 2011 CAD outlined the issues as follows:

The Application is clearly written but does not contain much detail. The applicant alleges that he was treated differently from others during his employment on the grounds of race, colour, ancestry, place of origin and age. The parties agree that the applicant was employed on the cleaning staff on the overnight shift from September, 2006. The applicant describes himself as a Black person. His Application states that he was the only Black person on the cleaning staff, and that, during his employment, all of the cleaning staff except him were given a rotational schedule that allowed each person to get one weekend off per month. "However, a few months after I started I only got Wednesdays and Thursdays off every week..." The applicant indicated that, when he discussed this with the "night managers", he was told that "they started this rotation a long time ago and do not plan on changing it...they also said that the other employees had been there a long time". The Application states that the applicant had "been told that an employee who was hired after me who just finished his probation period is now on the weekend rotation schedule."

The applicant also stated that he discussed this with the "night managers" several times, most recently in September 2008. He alleges that a manager named Roy asked "Linton, how old are you? Why don't you just quit?"

The very detailed Response has now been augmented with the respondent's witness statements. The respondent generally denies breaching the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondent asserts that it adopted a policy requiring weekend work in 2002. The respondent states that the only cleaners who are not required to work weekends are staff who worked "with Woolco prior to Wal-Mart opening in 1994" and staff hired before 2002.

The Response describes the hiring process and states that the applicant knew that he was being hired to work weekends. The Response indicates that only three of the ten overnight cleaners were not required to work every weekend, that this was because these three were hired prior to 2002, and that the applicant was given this explanation when he asked. The respondent also indicates that the applicant was told that overnight staff could request in advance a particular weekend off for a special occasion, and that, subject to the business needs of the store, the request might be granted. The respondent asserts that the applicant never made such a request in advance.

The Response indicates that Roy (identified as Roy Cordingley) denies making reference to the applicant's age at any time during his employment.

In the interests of dealing with this matter more expeditiously, I will modify the requirements on the applicant to the minimum. The applicant must undertake the following:

a) If the applicant intends to bring any witnesses to testify about his allegations, he must send the respondent and file with the Tribunal a witness list and a brief statement summarizing each witness' expected evidence. If he does not intend to bring witnesses, he must state this.

b) The applicant must identify any employee whom he alleges was treated differently from him in respect of being able to take weekends off, giving the name if possible and indicating, to the best of his knowledge, when the person was hired and what job the person performed.

c) If the applicant intends to rely on any documents, he must deliver to the Tribunal and the respondent a list of those documents and a copy of each document on the list. If the applicant has already delivered those documents to the respondent, he need not deliver copies of the documents again to the respondent but must file the documents with the Tribunal together with a confirmation that each document has already been provided to the respondent.

If the applicant does not submit the above-noted information in writing to the Tribunal, with proof that he has also copied the respondent, on or before October 31, 2011, the Application may be dismissed as abandoned.

7The applicant did not comply with the October 17, 2011 CAD. On November 11, 2011, the applicant sent an e-mail to the Tribunal, informing the Registrar that his wife had died and requesting an extension of time. The message was forwarded to the respondent, who took no position on the request. By CAD dated November 23, 2011, the applicant was given an extension for filing to December 16, 2011. In view of the fact that the respondent had not had the disclosure to which it was entitled, the respondent was afforded an opportunity to make any response in writing on or before January 16, 2012.

8The applicant did respond to the November 23, 2011 CAD, but his filed material was largely taken up with assertions of fact, some of which were untimely, had not previously been mentioned, or were unrelated to the assertions in his Application. One of the applicant's assertions referred to an allegation that was part of the Application, but which the applicant now alleged took place at a different date and location. His materials gave no information about whether he planned to call witnesses. He asserted that an employee identified as "Eddie", whom he alleged was hired after he had been, had weekends off on two occasions, but gave no information as to what job this individual performed. There was no information about any documents upon which the applicant might intend to rely.

9In view of the applicant's incomplete response to his disclosure requirements, an in-person summary hearing was scheduled. Having heard from both parties, I conclude that the applicant has not demonstrated that the Application has a reasonable prospect of success.

The Evidence

10The applicant did not call any witnesses. The respondent's witness, other than the corporate representative instructing counsel, was excluded until he had given his evidence. The parties and witnesses gave their evidence under affirmation.

11In this case, it was important to hear evidence from the respondent, as most of the evidence was under the control of the respondent. I heard evidence from the applicant and from Roy Cordingly, the assistant manager who hired the applicant.

12The applicant's evidence focussed on the allegation of discrimination because of race, ancestry and colour. He did not pursue the issues of place of origin or age at the hearing.

13The applicant agreed that he had been hired in September of 2006. He asserted that, for the first "several months", he had received weekends off. Having said that, he also agreed on cross-examination that he had signed a document when he was hired (Exhibit 1) that indicated he was available for work all seven days of the week, and that, on review of a printout of his written attendance schedule (Exhibit 2), he had worked regular Saturdays and Sundays from the time he was hired. The applicant admitted that he did not have any records to support his assertion that his working schedule was different from what was indicated on the respondent's printout.

14More importantly for the issues arising in this Application, the applicant agreed with counsel that other employees named as part of the cleaning staff, including three individuals whom he agreed were not Black, also worked regular Saturdays and Sundays.

15Counsel for the respondent submitted in evidence a document (Exhibit 3) entitled "Scheduling and Reporting Pay". The document indicated that "with the exception of the overnight team", "Full-time Associates" would "normally be scheduled off one two day weekend every two weeks, depending on the needs of the business...The overnight team will normally be scheduled off two consecutive days every week, depending on the needs of the business." The applicant agreed that he was a member of the "overnight team" although he maintained he had never been shown this document.

16Roy Cordingly, the assistant manager who hired the applicant, denied that the applicant was the only overnight cleaning staff member to work regular weekends. He stated that the decision to require that cleaning staff work regular weekends was made before he started employment in 2002. Of the ten permanent overnight-shift cleaning staff, four were "grandfathered" because they had been hired prior to 2002. Those employees could get regular weekends off. Mr. Cordingly indicated that employees who regularly worked weekends could get weekends off under special circumstances and with sufficient notice but that the schedules were made three weeks in advance. Mr. Cordingly indicated that he stressed in the applicant's initial interview that he was being hired to work weekends and that willingness to do so was an important criterion in determining whether he was a suitable candidate.

17Mr. Cordingly gave evidence that the applicant was often late, that he habitually failed to notify his managers if he was going to be late, and that he was absent without adequate reason an excessive number of times. Mr. Cordingly stated that the applicant was formally "coached about his misconduct". As noted above, Wal-Mart has a discipline process whereby employees are provided with two verbal warnings, two written warnings and a one-day suspension (a "Decision Day"), prior to termination. After the Decision Day, any further misconduct is grounds for termination. Mr. Cordingly stated that in fact the applicant went through this disciplinary process twice before he was dismissed, because it was difficult to get and retain staff for that position.

18The applicant agreed that his 90-day performance appraisal, dated October 26, 2006, while generally favourable, indicated that he must pay more attention to punctuality, and that his performance appraisal of August 26, 2007, indicated that attendance and punctuality must improve. He also agreed:

• that he was given a first written warning for absenteeism and tardiness on October 13, 2007;
• that he was given a second written warning on October 27, 2007;
• that he had further problems with attendance and lateness, and that he was sent home for a "Decision Day" on December 8, 2007, and wrote a letter outlining how he intended to improve his attendance and punctuality, and
• that his performance appraisal of July 22, 2008, indicated that his attendance and punctuality was "unacceptable".

19The applicant disputed the conclusions reached in two further "coaching forms" respectively dated March 24, 2009 and April 30, 2009, but did not deny that he had received them. The March 24 document indicated 17 "no-shows" and tardiness on five occasions. The applicant's written comment at the end of that document was that he had not missed five shifts. In respect of the April 30 "coaching form", he indicated that he did not agree with "anything on this paper". The applicant agreed, however, that he had been late or absent in May of 2009 on a number of occasions after his second "Decision Day" on May 11, 2009.

20Mr. Cordingly stated that, following his second Decision Day, the applicant was more than four hours late for his shift and provided no reason for his lateness. He then failed to attend work as scheduled from May 28 to June 7, 2009. His employment was terminated on June 9, 2009, the next day that he reported to work.

21The respondent submitted in evidence a number of e-mail messages (Exhibits 4 and 5) starting on May 14, 2009 in which Mr. Cordingly summarized the applicant's most recent poor attendance record, and obtained advice from the corporate respondent's Human Resources personnel about how to effect the termination.

22Mr. Cordingly stated that he would have terminated the applicant's employment on May 28, 2009, but for the fact that the applicant did not come into work as scheduled until June 9, 2009. He testified that he was not aware that the Application had been filed prior to taking the decision to fire the applicant. He maintained in cross-examination that he had no intention to retaliate against the applicant, but had decided to terminate his employment because after two progressive disciplinary processes he was still persistently unreliable in regard to attendance at work.

23The Application was filed on May 12, 2009. The termination of the applicant's employment occurred almost a month later. Section 8 of the Code prohibits reprisal against persons asserting their rights under the legislation:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

24The Form 23 (Statement of Delivery) filled out by the applicant on May 12, 2009, indicates that the Application was sent to the attention of a named individual at two of the respondent's addresses, but neither of the addressees was Mr. Cordingly or any of the names that appear on the e-mails involving Mr. Cordingly and the respondent's Human Resources staff. The respondent received notice from the Tribunal that the Application had been accepted for filing on May 25, 2009.

25Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, the applicant alleging reprisal must establish that the action was taken with an intent to punish or retaliate. (See Noble v. York University, 2010 HRTO 878.)

26Mr. Cordingly gave his evidence in a straightforward manner, and did not qualify his statements in any way on cross-examination. Further, his evidence is consistent with the evidence, much of which was not contested by the applicant, of the applicant's disciplinary record.

27The applicant has alleged differential treatment in regard to weekend work assignments. However, he also admitted that three other employees in his job classification, whom he did not identify as Black, had the same work assignment situation. I appreciate that the applicant regards the corporate respondent's policy as unfair, but I consider that he has no reasonable likelihood of establishing differential treatment on the basis of grounds of discrimination under the Code. The applicant has not provided any evidence or suggested that any other evidence might exist that would establish such discrimination. In the circumstances of this case, he also has no reasonable prospect of success in establishing reprisal for the purposes of section 8 of the Code.