Konstantinos Gidopoulos v. Weston Bakeries (Distribution Centre) and Ralph Robinson, 2012 HRTO 437

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Konstantinos Gidopoulos Applicant

-and-

Weston Bakeries (Distribution Centre) and Ralph Robinson Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: March 9, 2012 Citation: 2012 HRTO 437 Indexed as: Gidopoulos v. Weston Bakeries

APPEARANCES

Konstantinos Gidopoulous, Applicant (Self-represented) Weston Bakeries (Distribution Centre) and Ralph Robinson, Respondents (Robert Weir, Counsel)

1This Application, which was filed on October 19, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), describes the termination of the applicant's employment with the corporate respondent. The personal respondent is named by the applicant because he is the president of the corporation. The personal respondent is not mentioned in the Application's description of the incidents which allegedly establish discrimination.

Background

2The applicant, whose ethnic origin is Greek, worked for the corporate respondent since 1987 until his employment was terminated in 2009 because he refused to sign a form acknowledging receipt of a new security pass card that he needed in order to replace one he had misplaced. The corporate respondent required the applicant to attend a meeting on November 13, 2009, with members of management and a union representative present, and was again advised to sign for the pass card. He refused and told his manager that he or his methods were "nazi like" and that he was anti-Greek. The corporate respondent terminated the applicant's employment on November 25, 2009, because he refused to sign for the pass card and had a history of suspensions justifying termination.

3On November 30, 2009, several days after his employment was terminated, the applicant wrote a letter to the personal respondent. In the letter, the applicant complains of generally bad and insensitive management, and states:

I do firmly believe that the decision to terminate me was based on my philosophical differences with management and not in any way due to my job performance within the organization.

4The only mention in the letter of possible violations under the Code is:

In fact, some of the people I have mentioned [the applicant's supervisors] have adopted policies that border on being discriminatory to my race, religion and birth place of origin.

No mention is made of disability, association or reprisal. At the hearing, the applicant testified that the contents of the letter he wrote are not true because he wrote it in anger.

5The applicant's union grieved the termination, and the arbitrator who heard the matter dismissed the grievance, finding that the termination was justified:

I also agree with counsel for the Union that I should restrict my decision to the events of November 13, 2009. Therefore, an issue such as whether the grievor said on November 23, 2009, "I am going to shoot you motherfuckers", is irrelevant to my decision. The actions of the grievor and the comments he made at the meeting of November 13, 2009 are worthy of serious discipline. The request to sign a form acknowledging receipt of a new security pass card is a trivial matter. The request was reasonable and should have been complied with. It was repeated a number of times and reinforced by the Union. The grievor's continuing refusal to sign is mystifying. His words at the meeting are not. His words are completely inappropriate and offensive. They should not have been said. His subsequent retraction was not genuine and his apology at the hearing did nothing to change to [sic] that. His words demonstrated his true conviction as to the approach and attitude of members of management. There was not, however, any evidence that such convictions were anything but "figments of his imagination". Given the disciplinary record of the grievor, which includes three suspensions culminating in a five day suspension, the decision to terminate the employment of the grievor is appropriate.

6The Application alleges that the termination was not only discrimination because of ethnic origin, as expressed in the applicant's words to his manager on November 13, 2009, and as alluded to in his November 30, 2009 letter to the personal respondent. It also alleges that the termination was also because of the applicant's "association" with an application at the Tribunal filed by another employee against the corporate respondent, and because of his "association" with another proceeding before the Ontario Labour Relations Board where the applicant expects to testify in relation to a matter involving the corporate respondent, the workplace union and yet a different employee. The Application also alleges discrimination because of disability, but, other than stating that the management wanted to get rid of the applicant because of his injuries at work, the Application provides no description of events respecting the allegation. The applicant attached several documents pertaining to injuries he incurred prior to the termination of his employment but none of them appeared linked to the termination of his employment. Finally, the Application also alleges reprisal because of association, being disabled and being a Union Stewart and Health and Safety Inspector.

7In an Interim Decision, 2011 HRTO 1925, the Tribunal dismissed the allegation of discrimination based on ethnic origin. The Application does not appear to describe any evidence to link the termination of employment with the remaining grounds, and the Interim Decision directed that a preliminary hearing be held to determine whether there is no reasonable prospect of the Application's success. The applicant was directed to be prepared to adduce any evidence which would link the termination of his employment with disability, association and reprisal within the meaning of the Code.

8The hearing was held on February 8, 2012.

Association with a co-worker who alleges discrimination because he works part-time

9At the hearing, the applicant confirmed that one reason for which the Application indicates discrimination because of association is because he agreed to be a witness for another employee, Dean Potvin. Mr. Potvin is complaining that his union has not fairly represented him in his claim that the corporate respondent discriminated against him under the Collective Agreement because he works part-time, not full time.

10Discrimination because of association is described in section 12 of the Code as follows:

A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

11At the hearing, the applicant agreed that he did not read the Code prior to alleging that his association with Mr. Potvin amounted to a violation of the Code. He also agreed that Mr. Potvin is not identified by a prohibited ground of discrimination. The Code is not engaged simply because the applicant is associating with someone who works part-time in the absence of any connection between that person and a prohibited ground of discrimination. The allegation of discrimination because of association with Mr. Potvin is therefore dismissed.

Association with a co-worker who alleges discrimination because he is disabled

12The applicant confirmed at the hearing that the other reason for which he believes he was discriminated against because of association is because he plans to be a witness for a different employee, Mr. Chandiwala. Mr. Chandiwala has filed an Application at the Tribunal against the corporate respondent alleging discrimination because of disability. The applicant described a workplace incident which he believes occurred sometime in 2008 when one of the other employees, described by the applicant as Mr. Ng, called Mr. Chandiwala a cripple and tried to hit Mr. Chandiwala. The applicant and a co-worker, Mr. Lopez, held back Mr. Ng from Mr. Chandiwala. The applicant did not communicate with the respondents or any supervisor with respect to the incident, but he said that everyone at work knew about the incident, including his supervisor.

13The applicant testified that he has never seen Mr. Chandiwala's Application, but he assumes it was filed with the Tribunal sometime after the incident involving Mr. Ng and Mr. Chandiwala, and sometime prior to his termination in November 2009. He had agreed to be a witness for Mr. Chandiwala at the Tribunal, but he doesn't know if Mr. Chandiwala had listed him as a witness on his Application. Mr. Chandiwala has not given him any idea of when a hearing at the Tribunal might be, and the applicant agrees that he is simply assuming that the respondents know about his agreement to be a witness for Mr. Chandiwala.

14In cross-examination, the applicant agreed that everyone at work knew that Mr. Lopez also witnessed Mr. Ng's comments and behaviour towards Mr. Chandiwala. The applicant doesn't know if Mr. Lopez will be a witness if there is a Tribunal hearing for Mr. Chandiwala's Application, but he agreed that Mr. Lopez is still working for the corporate respondent.

15The applicant argues that while he does not have direct evidence that one of the reasons for the termination of his employment was his association with Mr. Chandiwala, the circumstances are such that I should infer it is a reason. On the contrary, the circumstances support the respondents' position that the applicant's association played no part in the decision to terminate his employment.

16The incident which establishes the applicant's association occurred in 2008, while the termination of the applicant's employment occurred at the end of 2009. Even if Mr. Chandiwala's Application was filed in 2009, closer to the termination, even if that Application described the incident with reference to the applicant's presence, and even if the respondents knew that the applicant agreed to act as a witness for Mr. Chandiwala, I find that the other circumstances which surround the termination are not as remotely linked to the termination, and outweigh any implication that these factors bear on the applicant's allegation of discrimination because of association with Mr. Chandiwala. These other circumstances include:

• a clear, non-discriminatory reason to terminate the employment as found by the arbitrator which has nothing to do with association
• no repercussions for Mr. Lopez, another potential witness in Mr. Chandiwala's Application against the corporate respondent, who remains working for the corporate respondent
• the applicant's belief, whether true or not, immediately after his termination (articulated in his letter of November 30, 2009) that he lost his job for reasons unrelated to association, and no mention of information coming to him subsequently to justify changing his mind to believe that association was a reason.

17In the circumstances, where the applicant cannot provide any evidence that his association with Mr. Chandiwala was a reason for the termination of his employment, and simply points to the fact that he had an association with Mr. Chandiwala, the applicant has no reasonable prospect of establishing a link between the termination and the association with Mr. Chandiwala. His allegation of discrimination because of association with Mr. Chandiwala is dismissed.

Disability

18At the hearing, the applicant confirmed that he sustained injuries from time to time, given the physical nature of his work, the most recent injury being a shoulder strain in 2009. He stated that the reason he cited disability in his Application was because he believed that the fact that he had been injured the year his employment was terminated, and had sustained other injuries in previous years, contributed to the respondents' decision to terminate his employment in November 2009. However, he confirmed that his employer co-operated with the Workplace Safety and Insurance Board in a graduated return-to-work programme, and that he was no longer on modified work at the time of the termination.

19The applicant does not have direct evidence to support this belief that his injuries were a factor for the termination of his employment, but he vaguely described several incidents that he argued could be considered circumstantial evidence to make a link between disability and the termination.

Scrutinized washroom breaks

20The first incident or series of incidents he described was his supervisors monitoring his washroom breaks when his duties were modified. He believes that because he was disabled, they "maybe" thought he would "slack off", but in cross-examination, he stated that his supervisors were doing this on a daily basis right up until his last day of work when he was no longer disabled or performing modified work. I therefore do not find that the applicant has established that the close monitoring of his breaks is evidence that disability was a reason for the termination of his employment.

Pressure that the applicant work faster

21The second incident or series of incidents involved his supervisors in 2009 pushing him to complete his modified duties faster, which he had to do or he felt they would give him "trouble", and he felt that his shoulder took longer to heal as a result. Given the applicant complied when his supervisors told him to work faster, and given that the termination occurred when he was no longer on modified work months later, I do not find that the applicant has established that the supervisors' impression that the applicant should work faster was a reason for the termination.

Supervisor's comment about workers lying if claiming to be injured

22Although not sure of when or exactly why the conversation took place, the applicant said a third incident was a comment made by his supervisor, that he thinks might have been in the context of the applicant voicing safety concerns for workers who had been injured by a trailer that the applicant did not think was safe. The applicant alleges that the supervisor said that when workers claim that they are injured, they are lying. The applicant did not imply that the comment was with reference to him personally, but specifically stated that it was made about all workers generally. Given that the applicant was not injured at the time of the termination, I do not find that any opinion of the applicant's supervisor that workers lie when they say they are injured is sufficient evidence to link the applicant's history of injuries to the termination of his employment.

Supervisor's inquiries about injury

23The fourth series of incidents took place when the applicant was doing modified work in 2009. The applicant testified that his supervisor occasionally asked the applicant, in front of the other employees, if his shoulder was any better. The applicant testified that his supervisor would ask with a "sniffle" as if he did not care. Again, given that the applicant's shoulder did heal, and given that the termination occurred months later, even if the applicant's belief were true that the supervisor was in some way teasing him about his injury, I do not see the correlation between the termination and the supervisor's allegedly insincere inquiries about his shoulder.

Suspension for conduct and comments

24The fifth incident described by the applicant as circumstantial evidence that the termination was because of disability is his five-day suspension in May 2009 for certain conduct and comments (insubordination). He argued that when he wrote to his supervisors to express his fear for the physically threatening Mr. Ng, and stated that he was removing himself from the workplace, his employer should have offered support and not suspended him. The suspension, he argues, "proves that they didn't like me because of my disability." The applicant shed no light on why the employer's decision to suspend him was related to his disability. Even if the corporate respondent's neglect of the applicant's request for support in dealing with a threatening co-worker could be interpreted as a sign that the corporate respondent did not "like" the applicant, as alleged by him, there is no evidence that any dislike is related to any disability or any injury the applicant may have sustained. I fail to see any correlation between the suspension and disability.

25The applicant urges me to view all the circumstances together to find discrimination because of disability with respect to his termination. But even when I look at the incidents described above together, I find the applicant's description of them to be so remote from the termination of his employment that they cannot establish that disability was a reason for it, even when combined. The other circumstances which surround the termination are more directly linked to the termination and provide a legal reason for it. They outweigh any implication that his employment was terminated because of disability. These other circumstances are closer in proximity to the termination and include:

• a clear, non-discriminatory reason to terminate the employment, insubordination, which the arbitrator found to justify the termination and which has nothing to do with disability;
• the corporate respondent's co-operation with the WSIB in providing the applicant with a graduated return to work programme and the applicant's admission that at the time of termination his shoulder no longer required modified work and he was working regular duties;
• the applicant's belief, whether true or not, immediately after his termination (articulated in his letter of November 30, 2009) that he lost his job for reasons unrelated to disability, and no mention of information coming to him subsequently to justify changing his mind to believe that disability was a reason.

26In the circumstances, the applicant has no reasonable prospect of establishing through evidence a link between the termination of his employment and his injuries. His allegation that the termination of his employment was at least in part discrimination because of disability is dismissed.

Reprisal

27At the hearing, the applicant clarified that his allegations with respect to reprisal were made because he felt the termination of his employment was linked to:

a) Having acted as a Union Stewart and Health and Safety Inspector at the workplace;

b) Associating with Mr. Potvin and associating with Mr. Chandiwala; and

c) "Being disabled"

28Section 8 covers the protection in the Code from reprisal. It states:

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.

29To prove a violation of the Code because of reprisal, the applicant would also have to prove that the respondents intended to reprise against him. See Noble v. York University, 2010 HRTO 878.

Reprisal for having acted as Union Stewart and Health and Safety Inspector

30The applicant did not argue that the roles he played as Health and Safety Inspector or Union Stewart were related to his own disability. Instead, he implied that his advocacy in those roles for safety for all workers made the corporate respondent want to punish him by terminating his employment. Not only did he have no evidence that the respondents intended to punish him for his participation in those roles, but also he described nothing to link the roles with his disability or any other ground. The Code does not protect applicants from reprisal for their advocacy for safety in the workplace where there is no personal connection to a ground under the Code. The applicant's allegations that the termination was reprisal for his active role as Health and Safety Inspector and Union Stewart are therefore dismissed.

Reprisal for Associating with Mr. Potvin and Mr. Chandiwala

31The applicant clarified that his allegations that he was reprised against because of his association with Mr. Potvin and Mr. Chandiwala are the same as his allegation that he was discriminated against because of his association with them.

32Mr. Potvin is not identified by a ground enumerated in the Code, and the rights that he is claiming in his own proceeding are unrelated to the Code. Acting as a witness for Mr. Potvin is not exercising the applicant's "right... to institute and participate in proceedings under this Act [the Code]" as contemplated in section 8. Therefore, even if the respondents intended to punish the applicant for testifying for Mr. Potvin in his own proceeding, the reprisal section of the Code is not engaged.

33With respect to the applicant's allegation that the respondents terminated his employment because of his association with Mr. Chandiwala, the applicant has failed to link the association with the termination, as discussed in the reasons above. Acting as a witness for Mr. Chandiwala is exercising his "right... to institute and participate in proceedings" under the Code, but having found that the applicant has no reasonable prospect of making a link between the association and the termination, I cannot see that he has any reasonable prospect to demonstrate that the respondents intended to retaliate against him for participating in Mr. Chandiwala's process at the Tribunal. I therefore see no reasonable prospect for him to make a link between association and reprisal.

34The allegations that the termination was reprisal because of association are dismissed.

Reprisal for "Being Disabled"

35The applicant clarified that his allegation of reprisal "for being disabled" is the same as his allegation of discrimination because of disability. He described nothing which might amount to the termination being reprisal for claiming or enforcing his right to be free from discrimination because of disability. Therefore, I find that the applicant has no reasonable prospect of linking the termination with reprisal for "being disabled".

36The allegation that the termination was reprisal with respect to disability is dismissed.

Other Possible Code Violations arising from the Hearing

37The applicant raised new allegations at the hearing by describing the way his supervisors treated him as referenced in this Interim Decision in paragraphs 20 to 23. I find that they may have a reasonable prospect of success in establishing discrimination because of disability while he worked, even though I have found that there is no reasonable prospect of success that they might be linked to the termination of his employment. Accordingly, the Tribunal will hear evidence and argument on these allegations. However, this is not a final decision that the applicant will be permitted to rely on these allegations, which were raised at a late stage in the Tribunal's process. The respondents are entitled to argue that the Tribunal should not consider these allegations as a result of the stage at which they were raised. The Tribunal will schedule a one-day hearing to complete the evidence with respect to whether the respondents harassed or discriminated against the applicant because of disability during the course of his employment.

38The evidence adduced at the hearing may deal only with the allegations of discrimination related to disability described by the applicant in his testimony referenced in paragraphs 20 to 23. The applicant has already testified, and had no other witnesses, but he will be permitted to adduce evidence with respect to any monetary compensation for loss of dignity he may be seeking in regards to the alleged discrimination during the course of his employment. No later than 45 days prior to the hearing, the applicant must file with the Tribunal and deliver to the respondents a summary of what he will say with respect to any claim for monetary compensation. The applicant may not adduce evidence regarding any compensation for loss of income given my finding that the termination of his employment was unrelated to his disability.

39Given that this Interim Decision changes the issue on which the parties must now focus, the respondents shall have an opportunity to cross-examine the applicant again on the evidence he adduced at the last day of hearing with respect to the allegations of discrimination related to disability referenced in paragraphs 20 to 23. They shall also have an opportunity to cross-examine him on any evidence he might adduce with respect to damages on the next day of hearing. The respondents have not yet had an opportunity to adduce any evidence through their own witnesses. The respondents' witnesses must be prepared to testify after the applicant. Summaries of their expected testimony and documents upon which they intend to rely at the hearing must be filed with the Tribunal and delivered to the applicant in compliance with Rules 16 and 17 of the Rules of Procedure.

40The Tribunal will schedule one day for the continuation of the hearing. I am seized.