Stewart v. Groms Inc., 2012 HRTO 2162

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jaime Stewart

Applicant

-and-

Groms Inc.

Respondent

DECISION

Adjudicator: Yasmeena Mohamed Date: November 16, 2012 Citation: 2012 HRTO 2162 Indexed as: Stewart v. Groms Inc.

APPEARANCES

Jaime Stewart, Applicant Self-represented

Groms Inc., Respondent No one appearing

Introduction

1This is an Application filed under Section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant in this Application alleges discrimination with respect to employment on the basis of “family status”. The applicant alleges the respondent’s termination of the applicant is discriminatory against the applicant on the ground of the applicant’s family status for the following reasons:

a. The applicant, a parent, enquired whether the respondent had any calling in policy or protocol to address absenteeism from work occasioned by sick children; and

b. The applicant alleges that references by the respondent to the applicant being a “skater” dad impart a negative inference to his parental responsibilities.

3The hearing was held on May 30, 2012. The applicant was self-represented. The respondent did not attend at the hearing. A review of the Tribunal’s records indicated that a letter entitled “Notice of Confirmation of Hearing” was sent from the Registrar to the respondent on November 28, 2011. The respondent replied to the Registrar’s letter by email dated December 19, 2011, respondent confirming receipt of the Registrar’s letter and providing the Registrar with copies of documents that the respondent intended to rely upon at the upcoming hearing. The respondent’s email, dated December 19, 2011, confirms that the respondent had sufficient notice of the hearing and that their election to be absent at the hearing is at their own volition. Accordingly, the hearing proceeded in its absence as scheduled and the applicant testified on his own behalf. The applicant did not call any witnesses or tender any documentary evidence in support of his Application.

FACTS

4The applicant’s testimony is summarized as follows:

a. On August 23, 2011, the applicant commenced employment as a sales representative with the respondent.

b. On September 23, 2011, at approximately 11:25 a.m., the applicant dispatched a text message to his Manager, Dani Gagnon (“Gagnon”). The text message informed Gagnon that the applicant was ill and unable to attend work at 3:00 p.m.

c. Gagnon’s reply by text was that if the applicant did not attend work, the applicant would be considered no longer employed by the respondent.

d. The applicant replied also by text to Gagnon, that if the applicant’s job was on the line, the applicant would attend at his scheduled 3:00 p.m. shift.

e. The applicant attended work at 3:00 p.m. Upon his arrival at work, the applicant reviewed his daily emails including an email from an employee to Gagnon enquiring from Gagnon why she had fired the applicant.

f. The applicant immediately dispatched a text to Gagnon enquiring whether he was being fired.

g. Gagnon replied by text and informed the applicant that he was not being fired. Gagnon did, however, advise that there were issues concerning the applicant’s work habits and his unreliability at work. Gagnon directed the applicant to continue working until the end of his shift.

h. In response to Gagnon’s text, the applicant telephoned the store owner, Laura Harrington (“Harrington”). The applicant asked Harrington if there were weekend work hours available. The applicant also enquired whether Gagnon had the right to fire him if he called in sick. Harrington’s reply was that there were weekend work hours available and that Gagnon did not have the right to fire the applicant for calling in sick.

i. At approximately 6:30 p.m., just prior to the completion of the applicant’s shift, Gagnon arrived at the store. Gagnon asked the applicant why the applicant considered it okay to call in sick, when Gagnon herself had to come into work when she was sick. The applicant’s response was that Gagnon that was the manager, and had to come into work.

j. The applicant then asked Gagnon if the store had a policy or protocol on calling in sick. Gagnon’s response was that the applicant had to attend work. The applicant also enquired what would happen if his children fell ill and the applicant needed to call in for time off work. Gagnon’s reply was that “maybe we made a mistake to hire a ‘skater’ dad”.

k. At that point, Gagnon got upset with the applicant and started berating the applicant about his work performance, lateness, job behaviour, frequent unauthorized absences and lack of communication. Gagnon raised issues of being irresponsible with respect to keeping the stores neat and tidy. Gagnon also alleged that the applicant had left one of the respondent’s new stores in disarray, failed to clean up the store and performed his job duties improperly.

l. The applicant and Gagnon, both angry, exchanged words. The applicant testified that he could not recall the exact nature of the conversation and or the dispute at this point, except that Gagnon said “I have had enough, you are done here”.

m. The applicant was summarily fired before the completion of his shift.

n. Following his termination from his employment, the applicant sent several emails to Gagnon, enquiring whether his termination fell under the Employment Standards or Human Rights regime. The applicant also made several written requests for compensation as a result of his termination from employment. Gagnon responded that the applicant’s termination was because he was a “bad” employee.

o. The applicant alleged that his relationship with Gagnon was good, until he called in sick and until he inquired about the store’s sick leave policy with respect to employees and their children.

p. The applicant testified that he went to work late on two occasions but that they both related to medical appointments. The applicant alleged that Gagnon was aware of the medical appointments and had permitted him to attend at his medical appointments.

q. The applicant testified that there were occasions when he opened the store late or left the store unattended for short periods of time. However, the applicant testified that his conduct should be considered acceptable to the respondent because of the culture of any skateboarding store was casual and that the adherence to strict time protocols was not expected. The applicant also acknowledged that prior to his dismissal Gagnon had spoken to him about the issue of opening the store late. The applicant did not provide any evidence of the content of prior conversations. He just made mention of the fact that Gagnon had spoken to him.

r. The applicant testified that after the termination from his employment, he was unable to find work for six months and that he had experienced family and financial problems.

5The respondent elected not to attend at the hearing or tender any rebuttal evidence. Accordingly, the evidence before me is unchallenged, uncontradicted and must therefore be assumed to be true.

ISSUE

6Is the applicant’s termination from his employment discriminatory on the grounds of his family status?

ANALYSIS

7Subsection 5(1) of the Code provides that:

“(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, and age, record of offences, marital status, family status or disability.

8Subsection 10(1) of Code defines “family status” as:

the status of being a parent and child relationship.

9Section 5 of the Code expressly includes protection from discrimination on the basis of “family status”.

10The purpose of s. 5 of the Code generally is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping or prejudice.

11The Supreme Court of Canada in Andrews v. Law Society of British Columbia 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at p. 174, defines discrimination as follows:

any distinction, conduct or action whether intentional or not, but based on a person’s family status, which has the effect of either imposing burdens on the individual or group that are not imposed upon others, or withholding or limiting access to opportunity, benefits, and advantages available to other members of society.

12In cases of discrimination, the applicant bears the onus of establishing discrimination. Proof of intent to discriminate is not necessary to establish a prima facie case for discrimination. A prima facie case for discrimination may also be established in instances where the respondent has engaged in conduct that has a discriminatory impact on an applicant. A prohibited ground need only be one factor in a respondent’s actions for discrimination to be found.

13In response to the question of whether the termination of the applicant was discriminatory on the grounds of his family status, an examination of all the events leading up to the termination is warranted.

14The evidence provided by the applicant established that on September 23, 2011, the applicant informed Gagnon by text that he would not be attending his 3:00 p.m. shift because he was ill. Gagnon replied by text that the applicant’s absence from work would be viewed as a termination. In fear of being terminated, the applicant attended his 3:00 p.m. shift on September 23, 2011. While at work, the applicant discovered an email that alluded to his termination of employment. The applicant dispatched a text to Gagnon enquiring about his employment status. Gagnon replied by text that the applicant’s employment was secure, but there were issues regarding the applicant’s work habits and unreliability at work that needed to be addressed. The applicant then called Harrington and enquired whether Gagnon could terminate him for calling in sick. Harrington confirmed that Gagnon could not fire the applicant for calling in sick. The applicant continued to work his shift. Just prior to the end of his shift, Gagnon attended the store to discuss the applicant’s work performance. During the discussions with Gagnon, the applicant enquired whether the respondent had any policy or protocol on calling in sick. Gagnon responded that the applicant had to attend work. The applicant further enquired what would happen if his children fell ill and he needed to call in for time off work. Gagnon responded that “maybe we made a mistake to hire a ‘skater’ dad”. Gagnon then berated the applicant on the his work performance, which included: the applicant’s late attendances; job behaviour; unauthorized absences; lack of communications; irresponsibility with respect to keeping the stores neat and tidy; leaving one of the new stores in disarray; and failure to clean up the new store and improper performance of job duties. Gagnon’s berating of the applicant’s work performance led to an angry exchange of words between Gagnon and the applicant. This led to Gagnon firing the applicant with the following words “I have had enough you are done here”.

15The evidence provided by the applicant further established that prior to the applicant’s enquiry into the respondent’s policy or protocol on calling in sick, the respondent’s reference to him being a “skater dad” and his termination of employment on September 23, 2011, the applicant and the respondent had discussions about the applicant’s work performance and/or lack thereof. The evidence established that the applicant had opened the store late on several occasions, had left the store unattended on several occasions and that Gagnon had spoken to him about this issue. In addition, the evidence established that Gagnon had informed the applicant by text on September 23, 2011, that the applicant’s work habits and unreliability at work were issues that needed to be addressed.

16From a review of the events, discussions and the actual words used by the respondent to terminate the applicant’s employment, it is reasonable to infer that, on a balance of probabilities, the termination of the applicant’s employment was based on a culmination of factors, which included: the applicant’s intended absence from his 3:00 p.m. shift on September 23, 2011; the applicant’s enquiry of whether the respondent had any formal policy or protocol that addressed absenteeism on account of sick children; and the applicant’s work performance and/or lack thereof.

17The evidence indicating Gagnon’s prior warnings to the applicant about his work performance, the applicant’s awareness that the respondent had outstanding issues with his performance, and the berating by Gagnon of the applicant’s work performance, all inclusively corroborate the inference that the applicant’s alleged poor work performance was what led to his termination.

18In addition, the evidence indicating that Gagnon and the applicant got angry, exchanged words and Gagnon fired the applicant by saying “I have had enough, you are done here” corroborate the inference that the words uttered by Gagnon suggests that it was made in response to the work performance issues and the culmination of the overall discussions ensued before and after the applicant’s enquiry into the respondent’s formal calling in policy and protocol or the respondent’s reference to the applicant as a “skater” dad.

19Therefore, I conclude that the applicant’s enquiry into whether the respondent had a formal calling in policy and protocol on absenteeism on account of sick children and the respondent’s reference to the applicant as being a “skater” dad with negative parental abilities, are among the factors that led to the applicant’s termination.

20Having concluded that the applicant’s enquiry into the whether the respondent had a formal calling in policy or protocol on absenteeism on account of sick children and the respondent’s reference to the applicant as a “skater” dad, may have been factors that led to the applicant’s termination, the question is whether this enquiry and the respondent’s reference to the of “skater” dad relates to the ground of “family status” under section 5 of the Code.

21There is no obligation under the Code that compels the respondent to provide any formal calling in policy or protocol on absenteeism occasioned by sick children, although the Code may require that absence be permitted in such circumstances. However, given that the applicant focused on the existence of a formal policy, there is no protection afforded to the applicant’s enquiring about the respondent’s calling in policy and protocol on absenteeism on account of sick children. The applicant seems to be of the view that the ground of family status applies merely because he is in a parent and child relationship and his enquiry about the about the calling in policy have some relationship to his children. For this reason, the applicant believes it is within the power of the HRTO to deal with the allegations. This, however, is not the case. The HRTO can only deal with applications that allege a violation of the grounds prescribed under the Code. The applicant’s enquiry into the existence of a respondent’s formal policy and protocol on absenteeism on account of sick children, in this context does not fall within the ground of family status under section 5 of the Code.

22Similarly, there is no protection under the enumerated grounds of the Code for a person’s occupation. The applicant alleged that the respondent’s termination from employment was discriminatory, because of the reference to the applicant as being a “skater” dad, which imparted a negative impact on his parental abilities.

23Section 5 of the Code bars discrimination on the enumerated grounds of family status. Section 10 of the Code defines “family status” as “the status of being a parent and child relationship”. Section 10 of the Code therefore, protects the applicant’s status of being a parent and dad. Section 10 of the Code does not protect the applicant’s status of being a “skater” dad. The nature of the comment in the context described by the applicant was not about the fact the applicant was a father, but on him being a “skater” dad. In the entire context, the comment does not relate to the applicant’s family status under ss. 5 of the Code.

24The HRTO can only deal with applications that allege a violation of the Code. The respondent’s lack of a sick leave policy or protocol, whether applicable to all employees or to employees with children, is not a violation of the Code. An inquiry about the existence of a formal policy does not fall within the enumerated ground of family status under subsection 5 (1) of the Code. Similarly, the respondent’s reference to the applicant as a “skater” dad in the context of the applicant’s occupation is not a violation of the Code. It does not fall within the ground of family status under subsection 5 (1) of the Code.

25The applicant’s evidence therefore failed to establish an alleged contravention of the Code on the basis of his family status.

CONCLUSION

26I conclude that the applicant failed to prove discriminatory treatment at the hands of the respondent on the basis of his “family status”. I further conclude that the applicant’s allegations do not establish a breach of the Code and do not fall within the protected category of “family status” under section 5 of the Code.

DECISION

27For all of the above reasons, the Application is dismissed.