Isam Sarraf v. The Regional Municipality of Niagara and Normans Taurins, 2012 HRTO 2293

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isam Sarraf

Applicant

-and-

The Regional Municipality of Niagara and Normans Taurins

Respondents

DECISION

Adjudicator: David Muir

Date: December 6, 2012

Citation: 2012 HRTO 2293

Indexed as: Sarraf v. The Regional Municipality of Niagara

APPEARANCES

Isam Sarraf, Applicant

Self-represented

The Regional Municipality of Niagara and Normal Taurins, Respondents

John Cruikshank, Representative

Canadian Union of Public Employees, ) Dave Steele, Representative

Affected Party )

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”), alleging discrimination with respect to employment because of disability, family status and record of offences.

2The applicant makes two allegations that potentially engage the Code. The applicant alleges that the respondents failed to accommodate his family status needs on one occasion. He also alleges that in response to his being absent for one day due to illness, his employment was ended on January 22, 2010.

Allegations and Responses

3The applicant began his employment with the organizational respondent on January 11, 2010. The applicant alleges, although this is also not disputed, that the applicant has a son who is a person with a disability. The applicant alleges that the personal respondent was “well aware” of his son’s disability but he does not allege that he specifically asked for accommodation of his need to attend to his son’s needs. The applicant alleges in his Application that on January 12, 2010, his second day of work he was unable to attend work because he needed to attend with his wife at his son’s doctor’s appointment. The applicant states that he told a colleague of this possibility the night before but agrees that he did not advise his supervisor until the end of the day on January 12, 2010.

4He also alleges that when he attended at work the following day the personal respondent “tore a strip” off him. When I asked him what had been said to him he stated that the personal respondent was not happy and advised him that when he needed time off work the protocol required that he advise the respondents in advance. The applicant objects to this protocol because his son’s needs are unpredictable. However as indicated the applicant knew the night before that he likely would not be at work the following day and advised a co-worker. The applicant agrees that there was an agreement about how to treat the day off work which he missed on January 12, 2010.

5The applicant missed more time off work on January 18 and 19, 2010 while attending to projects for his prior or other employer at the time. He asked in advance and received prior approval to be absent from work on January 17, 2010. On the afternoon of January 18, 2010 the applicant sent an email to the personal respondent advising that he “found himself in a very difficult and conflicting situation that’s causing great discomfort in moving forward. I have a hearing at City Hall this evening from 6:30 p.m. to 8:00 p.m.” and asked to discuss this with the personal respondent later that evening.

6The respondents state in their pleadings that there was a discussion that evening. The personal respondent reminded the applicant that he was under contract to perform work for the Niagara Region and that any work performed for others would have to be undertaken on his own time. The respondents also state that the personal respondent further advised the applicant that there was no possibility that the organizational respondent would counter any employment offer made by his former or other employer.

7On January 19, 2010 the applicant called the personal respondent early in the morning to advise that he would not be in for work. The respondents allege that the applicant indicated that he was struggling with a counter offer by his prior or other employer had made. The respondents state that the applicant was reminded that he was under contract to the respondent and needed to report for work. He was also advised that he needed to make a decision. According to the respondents, the applicant indicated that he would call in later that day and advise them. Apparently he did not. The applicant did not dispute the respondents’ allegations.

8The applicant and the personal respondent met on January 20th where they discussed his absences and his obligations as an employee. The personal respondent advised that he would not be paid for the three days he had been absent from work and was asked to make a decision about his future. The applicant does not dispute these allegations by the respondents.

9On January 21, 2010 the applicant was absent from work and did not contact the respondents until the end of the day when he called to advise that he had not attended work due to illness and had gone to his doctor. The respondents state that the personal respondent indicated to the applicant that he should have called in immediately when it became clear that he could not come in to work and that he wanted to meet with the applicant immediately when he came into work.

10The applicant attended work on January 22, 2010 and was dismissed from employment for excessive absenteeism.

11At the summary hearing the applicant also alleged that he was unfairly paid – he was paid less than another employee who was less qualified than he. Although it is not clear how this allegation is connected to the other allegations in the Application it is clear that the applicant’s remuneration was an important issue to which he returned several times during the hearing.

12There are no allegations that related to the ground of record of offences.

Analysis

13This Application is dismissed because it has no reasonable prospect of success. Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

14Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

15As was pointed out in my July 12, 2012 Case Assessment Direction the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. So for example the applicant’s unhappiness with his remuneration and his dismay when an alleged agreement on the part of the personal respondent to get him some more money was dropped, raises no Code grounds.

16It is significant to my analysis that the applicant has not responded to the central allegation of the respondents that he was reluctant to leave his prior employer because of the pay cut he would have to take. Rule 9.1 reads as follows:

An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

17The applicant only filed a Reply after the July Case Assessment Direction was issued. It does include the applicant’s response to the section 45.1 issue raised by the respondent in their Response. More importantly it does not address any of the respondents’ assertions in particular he provides no answer to their contention that he was conflicted over whether or not he should leave his former employer. Nor did he make any response at the hearing.

18Based on the pleadings of the parties and the submissions made at the summary hearing, I am satisfied that the Application as it relates to an allegedly discriminatory termination has no reasonable prospect of success. The applicant can point to no evidence linking the decision to terminate his employment to an alleged disability. The applicant was terminated because the respondents believed that he was unable to make a decision about who to work for and was not showing up for work. The fact that his final absence, only reported after the fact, may have been related to an alleged disability in the nature of an undisclosed one day illness does not change the fact that as they allege the respondents had every reason to believe that the applicant was not sure what he should do about what he appears to have considered competing offers of employment. In all of the circumstances the allegation that the decision to terminate his employment was informed by his being absent one day due to illness is pure speculation, even assuming that a one day absence from work due to illness could be considered a disability meriting the protection of the Code.

19The applicant alleges a number of times that the respondent violated the emergency leave provisions of the Employment Standards Act which provide for up to 10 days of job protected emergency leave. I have no jurisdiction to apply the Employment Standards Act. In any case the question remains the same as above, is there any evidence reasonably available to the applicant to show that he was dismissed from his employment because he was allegedly ill on January 21, 2010. As indicated above, the applicant’s allegation is mere assertion and speculation. As indicated earlier it is at least as likely that the appropriate inference to be drawn from the unchallenged assertions of the respondents is that the applicant could not make up his mind and so they made it up for him, to his relief.

20As regards the other allegation of family status discrimination which the applicant clarified that he objected to the requirement that he give advance notice of the need for time off, because sometimes would not be able to do so. Assuming without deciding that the respondent had an obligation to accommodate the applicant’s need to attend to his son’s medical appointment and that a failure to do so would be discriminatory on this ground, I find that the applicant’s claim is entirely hypothetical on the facts he alleges. To begin with there is no evidence that he had advised the respondents of an alleged need to take time off unexpectedly and without notice. As well the urgent need the applicant alleges sometimes arises did not arise here because the applicant knew that he would not likely be attending work the day before and was able to advise a co-worker of this fact. The applicant did not also advise his supervisor. If as he says the protocol requires advance notice of an absence, on the facts of this case, this could have been provided with little difficulty.

21For all of these reasons I find that this Application should be dismissed because it has no reasonable prospect of success. In light of this conclusion I need not deal with the section 45.1 issue.