HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zina Tamburello
Applicant
-and-
2010665 Ontario Ltd. o/a Tim Hortons
Respondent
DECISION
Adjudicator: Mary Anne McKellar
Indexed as: Tamburello v. 2010665 Ontario Ltd.
APPEARANCES
Zina Tamburello, Applicant
Self-represented
2010665 Ontario Ltd. o/a Tim Hortons, Respondent
Andrew Mae, Counsel
INTRODUCTION
1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (“the Code”). It was filed with the Tribunal on March 2, 2010, and was heard on July 6, 2012.
2A corporation under the control of Frank and Barbara Smith operates three Tim Hortons franchises in Woodbridge, Ontario. The Application was commenced against “Tim Horton” and the Response was filed on behalf of “Tim Horton” owned by Frank Smith. Correspondence with the Tribunal from the respondent identified the responding party as “2010665 Ontario Ltd.”, referred to in my reasons as the “employer” or the “respondent”, as did the appearance sheet completed at the hearing.
THE FACTS
2The applicant and one of her former co-workers (“L.S.”) testified on her behalf. Frank Smith, Barbara Smith, Jawid Mahboob and Naeem Izbal testified for the respondent.
3The applicant worked for the employer for approximately seven years. Her employment was terminated effective immediately by written notice dated February 2, 2010, which she acknowledged receiving on February 3, 2010. The applicant complains that discrimination on the basis of age, colour, race and ethnic origin, contributed to the decision to terminate her, and she also complains of differential and discriminatory treatment on the same grounds during the course of her employment.
4The respondent is owned and operated by the Smiths. According to Barbara Smith, it commenced its operations in December 2002 with a single restaurant location, and expanded a few years later to include two kiosk locations. Although the applicant recalled that she commenced her employment with the employer in October 2002, it appears from Barbara Smith’s testimony and from copies of various documents the applicant acknowledged receipt of in writing at the commencement of her employment that her start date was in October 2003. No part of my decision requires that I conclusively resolve this discrepancy, so I merely note it.
5At all times relevant to this Application, both Frank and Barbara Smith attended the restaurant location on a daily basis. They had an office in that location, and Barbara Smith spent virtually all of her time in there engaged in administrative duties. In addition to any responsibilities Frank Smith may have had in the office, he also spent a considerable amount of time circulating among the employees. The respondent employed approximately 75 to 80 people at the three locations. Normally, the kiosks were staffed by two persons and the restaurant by four or five at a time. The restaurant is a 24/7 operation, but the kiosks close at 11:00 p.m.
7Jawid Mahboob was the manager of the respondent’s operations when the applicant commenced her employment, and he remains its manager, with responsibility for all three locations. Mr. Mahboob (the “manager”) identified himself as Afghani.
8The applicant was a full-time employee. She worked 40 to 44 hours per week, and was not assigned to any particular shift, or to any particular location. She identifies herself as a white Italian-Canadian. She was born in 1956. She was not the oldest employee of the employer, but no witness suggested that there were more than a couple of others who might have been older. She was also not the only Italian-Canadian or the only white employee. She characterized the ethnic and racial make-up of the workforce as “mostly Indians like Jawid”.
9The applicant has no complaint about the conduct of Barbara Smith. Her only complaint about Frank Smith’s conduct relates to his alleged inaction when she complained to him about the manager. I address the evidence relating to this allegation a bit later on. The bulk of her complaints in this proceeding relate to the alleged conduct of the manager.
10Sometime in 2004, the applicant provided her boyfriend with a coffee and did not put any money in the till. She maintains her employment was terminated by the manager as a result of this incident, but that Frank Smith decided she should be rehired. The employer’s witnesses deny that she was terminated in fact, but agree that it was a possibility they considered, and further agreed that it did not occur because Frank Smith wanted to give her a second chance. The applicant does not deny that the incident occurred (although she had an explanation for how it came about). She also testified that she had no trouble with the manager prior to this incident, and no reason to believe any desire he had to terminate her employment on this occasion involved any consideration of her age, colour, race or ethnic origin.
11The theme of the applicant’s testimony was that every time a theft occurred in the workplace, the manager suspected her. She made brief reference to an incident that occurred very shortly after the one recounted in the preceding paragraph, but as she had made no mention of it in any of her material filed, and the respondent’s counsel objected on that basis to its introduction, I ruled that evidence with respect to that incident was inadmissible. The applicant then went on to describe an incident that occurred in 2006, when $800.00 went missing from the till on an evening shift where she was working. She was questioned about the missing money. She had no knowledge of whether other employees on shift were also questioned. The employer witnesses testified that they were. Naeem Izbal, who was an Assistant Manager, testified that he had offered the opinion that no one could be disciplined or dismissed over the incident as there was no proof as to who had taken the money. Although the applicant may have felt that she was singled out for special treatment on this occasion, the evidence does not establish that to have been the case.
12The incident that led to the applicant’s termination occurred on January 31, 2010, when she was working at a kiosk location with one other employee. By this time she had been promoted to a supervisor position and received the corresponding wage increase. During her shift, the applicant provided her niece with a sandwich and did not receive any payment in exchange. The incident was captured on video tape and Mr. Mahboob reviewed it. When Mr. Mahboob confronted the applicant with the footage, she confirmed what he had seen on it, but explained that she was exchanging a sandwich purchased by her niece at another Tim Hortons location (possibly owned and operated by the respondent and possibly not) because it was bad, and that the bad sandwich had been thrown out in the parking lot while she was on a cigarette break with her niece and was not brought into the store so it did not appear on the camera. The manager did not believe her and recommended or decided that she be terminated. A written notice of termination was prepared and signed by Frank Smith. There was no dispute before me that what I have set out in the preceding narrative accurately describes both the applicant’s conduct and the employer’s response to it.
13The applicant appeared to suggest that discriminatory considerations prompted either the manager’s failure to believe her explanation, or his decision to treat her more harshly than other employees, whom she described as frequently taking home food – for themselves or other family members to eat – that they were only entitled to consume on their shifts. Although this was her testimony, and she may have seen co-workers leaving with food, it is not at all clear to me that she had any direct knowledge of who may have consumed that food once it left the premises. When asked why she thought there was a causal link between the manager’s treatment of her and the fact that she was Italian-Canadian or an older employee, she said “because I was singled out”. Aside from comments about her age, which I discuss below, the applicant testified that the manager had never said anything to her or in her presence to suggest that he had a problem with her, or disliked her because she was a white Italian-Canadian.
14The applicant testified that the manager always made negative comments about her age, and greeted her with them at the beginning of almost every shift. The least offensive of them to her was “budi”, which was described to me as a Punjabi word meaning “old lady”. Punjabi is not the first language of either the manager or the applicant. Further, there was evidence that the applicant sometimes replied to him in kind. Although Mr. Izbal, whose first language is Punjabi, testified that the term could be considered an endearment or nickname or an insult, depending on who said it and the context, even on the applicant’s own testimony, there was nothing to suggest that she found “budi” particularly offensive. What she did find offensive were comments she attributed to the manager (and which he denied making), such as “at your age you should be dead by now”, “Wrinkled Ass”, and “pretty soon you are gonna need crutches”. She further testified that she told him at the time these alleged remarks were made that they were not nice.
15I asked the applicant if Mr. Mahboob made these comments to her during the whole of her employment and she indicated that he had not done so initially, but that after she had been employed for about 2½ years, he started to feel quite comfortable and wanted to join in the banter among the employees, which included a lot of teasing and joking and discussion of their sex lives and other personal matters. The applicant was an active participant in this banter, but her view was that the manager’s participation was not appropriate because he was a manager. Her view also was that he went too far, and crossed the line. L.S., another former employee of the respondent, described the manager in her testimony as always joking, and said he was particularly fond of dirty jokes and often crossed the line and that she had told him on occasion when he had done so. This witness also testified that the manager had made a negative comment about her husband’s Italian-Canadian heritage, and that she chastised him for that. This witness’ employment was terminated by the respondent for theft. Subsequent to her termination, she testified that she had had a conversation with the manager in which he told her he was going to get rid of the applicant and several other employees and replace them with people “from his own culture”. The manager denied having made these statements.
16Counsel for the respondent submitted that I should disbelieve the testimony of L.S., particularly having regard to the fact that her employment was terminated. I do think it unlikely that a manager would tell a former employee whose employment he had terminated that he was planning to “get rid” of others. I also think it extremely unlikely that he would have said he was doing so in order to replace them with people “from his own culture”, which both the applicant and L.S. appeared to think might be described as “Indian”. By contrast, Mr. Mahboob’s conduct towards the applicant in evaluating her work performance bolsters the credibility of his denials that he made the statements attributed to him, or that consideration of any prohibited ground of discrimination was a factor in his treatment of the applicant. Part of Mr. Mahboob’s duties as manager involved doing performance appraisals of employees. One part of the appraisal is qualitative and one part is quantitative. His 2008 appraisal of the applicant rates her at 94 out of 100 on the quantitative scale and awards a $1.00 per hour pay increase. Although the qualitative ranking has not been marked, the legend on the form indicates that a quantitative score of 75 to 94 means an employee “Meets Standard/Expectation”. This appraisal post-dated the incident involving the missing $800.00, and post-dated the alleged conversation with L.S. If the manager had really been motivated to get rid of the applicant (for any reason), one might have expected to see that reflected in a negative performance review.
17Following the October 2008 performance review, the applicant claims she had some issues with the shifts the manager was assigning her, and in particular the fact that she would be assigned to day shifts, evening shifts, and night shifts in the same week. She says that she complained to him and was prepared to quit over it. He denies it. She also said she complained to Frank Smith, and that he persuaded her not to quit and said he had “something in mind” for her. Mr. Smith recalled having a conversation with the applicant, but had a somewhat vague recollection of its content (including whether or not the applicant had threatened to quit), although he agreed that what he “had in mind” was making the applicant a supervisor, which he did. That promotion and salary increase (an additional $1.75 per hour) took effect on March 31, 2009, and was communicated to the applicant by the manager in a performance appraisal that is dated March 21, 2009. The applicant stated that the manager had made it clear to her that it was “Frank’s decision” and he did not agree with it. The manager did not recall telling the applicant that he did not agree with the decision, but he did agree that Mr. Smith had made the promotion.
18The applicant was paid the supervisor rate immediately upon her promotion. She was not, however, provided with any visible markers of her promotion, which she said should have included: a different-coloured uniform; and a name badge. By contrast, she asserted that an employee she identified as Amy and “Indian like Mahboob” received her uniform and name badge within a few days or weeks of promotion. The employer’s witnesses provided various possible explanations for this differentiation in treatment: Amy was a supervisor at the restaurant and such individuals had distinct uniforms whereas those at kiosks did not; at most, kiosks were staffed by two individuals at a time, one of whom was a supervisor, so signs of authority were not important in that situation; and uniforms were only ordered after an employee’s probationary period as supervisor had been successfully completed, and that could be any length of time. What I gathered was that there was no clear set practice with respect to: what constituted a supervisor’s uniform; whether all supervisors got the same uniform; and how long the waiting period between appointment and receipt of uniform was.
19The manager did treat the applicant differently from the other new supervisor, but I am not persuaded that it occurred on the basis of any prohibited ground under the Code. My impression is that the applicant was correct in her assessment of the fact that the manager did not like the fact that Frank Smith appeared to favour the applicant and made decisions that advantaged her, and with which the manager did not necessarily agree, or which were decisions that would normally have been made by the manager himself. It may simply be that denying the applicant the markers of the status that would normally have attached to her promotion (or delaying their delivery) was his way of reasserting his authority. But the evidence provides no link between these acts and the applicant’s age or origin.
20At the time her employment commenced, the applicant signed various corporate documents, acknowledging that she had read them. Among these documents was one entitled “Respect in the Workplace – Workplace Harassment Policy”. The Smiths also posted in the workplace in June 2009 a document entitled “Harassment Policy”, signed by them, which is virtually identical to the document that the applicant signed. In particular, both of these documents detail the steps to follow in the event an employee feels s/he has been harassed:
If you have been the victim of harassment please follow these steps:
Make it known to the person(s) involved that their behaviour is not wanted and ask them to stop;
Keep a written record of dates, times, what happened and who was involved, and witnesses to the incident(s), if any;
In the event that the unwelcome behaviour continues after telling the person(s) to stop, discuss the matter with the store owner, and/or your district manager; and
If they are not able to resolve your concerns, call the human resources department of the TDL Group Ltd. at 1-800-919-2325 for a prompt and confidential response.
21In addition to the harassment policy, the applicant also signed a copy of a store “Open Door Policy”, inviting employees to express any concerns by contacting their immediate supervisor or manager, or, if they did not feel comfortable doing so or did not like a response they had already received, by directing their complaint to the next level of management or completing a complaint form. The applicant acknowledged in testimony her awareness of the “Open Door” concept and her right to speak to one of the Smiths if she had a complaint. Although the applicant asserted that the manager would not “let” her talk to Frank Smith, she did not indicate what he did to stop her from doing so. Furthermore, the applicant struck me as an assertive individual who would not have been deterred, as evidenced by her testimony that she went right to Frank when she did not like the hours being scheduled by the manager.
22The applicant did not use the “Open Door Policy” to complain about the manager’s comments to her that she now claims were unwelcome and discriminatory. She also did not make a complaint under the “Workplace Harassment Policy”. When she claimed in this proceeding that she complained about the manager and Frank Smith did nothing about it, she was referring to an occasion when Frank Smith was on the floor and employees were engaged in some kind of banter, and she turned to Frank Smith and said (in her words): “look at the abuse I get around here”. There was no indication that she specified what was said that was abusive, who said it, or that she asked for anything to be done. Frank Smith’s testimony was that, while the applicant may have said something of the kind to him, in the absence of any more formal approach, he just thought it was employees kidding around. Given what everyone said about the level of familiarity in the workplace and the kinds of conversations that took place, his response was not so inadequate that I would characterize it as similar to those cases in which the Tribunal (or its predecessors) have found that a “failure to investigate” a complaint itself constitutes a breach of the Code.
23Immediately after her termination, the applicant applied for jobs at two other Tim Hortons franchises. She disclosed that she had been fired and was not offered employment. She undertook no further job search. In her testimony, she repeatedly indicated that she “loved” working in the stores operated by the Smiths, and would still be there today, but for the termination.
ANALYSIS
24This case turns exclusively on my findings of fact.
25As summarized above, there was no evidence to support the conclusion that any prohibited ground of discrimination was a factor in the decision to terminate the applicant’s employment. The final decision to terminate the applicant’s employment was Frank Smith’s to make. The applicant acknowledged engaging in the conduct for which she was terminated, providing product without receiving payment in return. She had previously been made aware that that was not acceptable. Although the applicant compared the incident with her niece to situations in which she claimed other employees took home food they were entitled to eat on their shifts, she did not identify in her evidence any employee who had, to the knowledge of management, provided food or drink to a relative or friend without receiving payment and not been disciplined for it. Further, in the absence of her identifying any particular employee who had taken home food, I have no basis for inferring that what she says was her differential treatment was related to a prohibited ground of discrimination.
26There is no dispute that Mr. Mahboob made some remarks about the applicant’s age, and that she responded by making remarks about his age. There is a dispute about whether certain other age-related comments were made by him. He denied making them, but even if I believe the applicant rather than him on this point, the response she claims to have made to those alleged remarks suggests that they were not in fact offensive to her at the time, or that he could not reasonably have understood that they were. First of all, any remarks made occurred in a workplace where banter about a lot of subject matters that might otherwise be offensive was tolerated and in which the applicant was an active participant. Secondly, the applicant testified that, if she had not been fired, she would still be working at the job because she “loved” it. Thirdly, on her own evidence, the applicant only ever characterized a few of the manager’s remarks as “not nice”. Finally, beyond one off-hand exchange, the applicant took no steps to complain to Frank Smith about the comments, although she was not shy to approach him directly about other issues, including her hours of work.
27Finally, as already indicated, I do not think the applicant’s offhand reference to “look at the abuse I get around here” in the context in which it was uttered and in the circumstances of this workplace to be sufficient to have triggered an obligation on Frank Smith’s part to investigate, such that his failure to do so amounted to a contravention of the Code.
28For all of the above reasons, the Application is dismissed.
Dated at Toronto, this 13th day of November, 2012.
“Signed by”
Mary Anne McKellar
Vice Chair