HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jonathan Cann
Applicant
-and-
Rona Incorporated, Rona Ontario Incorporated, Noble Trade Incorporated
Respondents
DECISION
Adjudicator: Eric Whist
Indexed as: Cann v. Rona Ontario
APPEARANCES
Jonathan Cann, Applicant ) Cecil Norman,
) Representative
Rona Incorporated, Rona Ontario ) Sonia Regenbogen,
Incorporated, Noble Trade ) Counsel
Incorporated, Respondents )
1The applicant was a human resources advisor for Rona Ontario Inc. (“Rona”) from November 2007 until July 20, 2009 when his employment was terminated. On July 27, 2009 the applicant filed Application 2009-00298-I under, the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment on the basis of disability, sex and reprisal. The Application alleges that:
Rona failed to accommodate the applicant’s disabilities notwithstanding that the applicant made three requests for accommodation between September 2008 and February 2009;
The applicant was subject to a poisoned work environment while working for Rona as a result of being exposed to a number of unwelcome and derogatory comments made by a fellow employee about persons with disabilities;
Rona’s decision to terminate the applicant’s employment was based, in some measure, on the applicant having disabilities and his request for accommodation. The applicant characterizes this as discrimination based on disability and reprisal.
Rona’s decision to terminate that applicant’s employment was also based, in some measure, on the applicant having indicated an interest in a further accommodation in order to assist his wife with a difficult pregnancy and to take parental leave. The applicant characterizes this as discrimination based on sex.
2On September 13, 2010 the applicant filed Application 2010-06826-I. This Application alleges discrimination in employment on the basis of disability and reprisal. The Application alleges that:
After his employment with Rona was terminated the applicant applied for human resources positions with Rona and Noble Incorporated (“Noble”) in November 2008 and January, May and June 2009 and was never granted an interview. The applicant alleges this was discrimination based on disability and was in reprisal for the applicant filing Application 2009-00298-I with the Tribunal.
3In an an Interim Decision dated February 14, 2011, 2011 HRTO 303, the Tribunal determined that the two Applications would be heard together.
4A hearing was held over the course of three days. I heard from six witnesses, the applicant and five witnesses for the respondents. Both parties provided substantial documentary evidence. Both parties provided case law for my consideration.
DECISION
5The Applications are dismissed in their entirety. I find that the applicant has not established that the respondents failed to accommodate his disabilities or that he was subject to a poisoned work environment. I find that the respondents have provided persuasive non-discriminatory reasons for why the applicant’s employment was terminated. I find that the applicant has failed to establish that he was subject to discriminatory treatment including reprisal in relation to any of the later jobs he applied for with the respondents.
BACKGROUND
6The applicant was hired as a Human Resources Advisor in November 2007. The applicant was responsible for providing human resources support and advice to store managers and employees in two Rona box stores located in Brampton. The applicant was also responsible for liaising between store personnel and Rona’s corporate human resources department (the People and Culture Department) on human resources issues.
7Rona has a number of corporate policies that address human rights issues including its Anti–Harassment Policy (and complaints procedure) and it’s Code of Conduct. It also has an Open Door Policy which allows persons to raise concerns with a manger of their choice and an Ethics Hotline which allows persons to file anonymous complaints. There was evidence before me that the applicant provided training on these policies and procedures and was familiar with them.
8The applicant reported to a senior human resources advisor located in the People and Culture Department in Rona’s centralized corporate office. Kristy Wegener was the senior human resources advisor until early July 2009 when she went on maternity leave. She was replaced by Adina Ingram. Miriam Corman was the director of the People and Culture Department. Ruth Richardson was Rona’s benefits administrator and was located in the People and Culture Department. The applicant liaised with Ms. Richardson when employees from his two stores made claims for disability benefits.
9Ms. Corman, Ms. Wegener, Ms. Ingram and Ms. Richardson were witnesses for the respondents. Cindy Jacobs, a senior human resources advisor for Noble also testified for the respondents. Ms. Jacobs testified about the human resources position at Noble that the applicant applied for in May 2010.
OVERVIEW OF KEY EVIDENCE
The Applicant’s Disabilities and Requests for Accommodation
10The applicant testified that he has had Tourette’s Syndrome (“Tourette’s) and Attention Deficit Disorder (“ADD”) since childhood. He testified that he never told the respondents that he had these disabilities. He testified that this was, in part, because he felt he was working in a poisoned work environment, an environment that was hostile to persons with disabilities. The applicant testified that he also believed that his disabilities should have been evident to the respondents. He testified that he has a physical and verbal tic that makes it clear that he has Tourette’s and that he has occasional difficulties with his executive functioning, for example, with his organizational skills, time management and memory, that should have made it evident to the respondents that he had ADD. Ms. Corman, Ms. Wegener, Ms. Ingram and Ms. Richardson testified that they were unaware that the applicant had these disabilities.
11Ms. Wegener testified that the applicant did tell her that he had a learning disability. She testified that this occurred while discussing the applicant’s communication skills at a performance appraisal she conducted with the applicant in December 2008. She testified that she asked what the applicant might need and that she ended up proposing that the applicant could repeat instructions she gave to the applicant and that the applicant could read written instructions he received a couple of times. Ms. Wegener testified that the applicant was satisfied with these suggestions. She testified that this was the only time the applicant indicated that he had a disability and that the applicant never requested any further accommodation in relation to this disability. She testified that she did not have concerns with the applicant’s overall work performance and that he met all job related expectations.
12The applicant testified that he did ask for accommodation on three occasions. He testified that on September 30, 2008 he requested accommodation by means of an email to Ms. Wegener. This email and Ms. Wegener’s email response were before me. They refer to the applicant being trained on a new timekeeping system called Kronos. The applicant writes:
Hi Kristy
I think I am going to need some accommodation for this with respect to training. Is it essential that the changes be entered now or can they wait until after I have completed the AS400 Kronos training on Friday? Also is Friday’s training for the old AS400 Kronos or is the training for the new Web based Kronos?
Ms. Wegener replies:
Based on our emails and conversations it is my understanding that they need to be changed now so that people can be paid. Please follow up with Mark Sell and Stephanie Lacas to determine what will be covered with the training? I would also ask if they have knowledge of the old Kronos and are able to guide you.
What about the sheets that I sent you yesterday They provide detail on how to do things, don’t they?
I understand that this is not the ideal situation but I would ask that you be resourceful and try to get this rectified.
13The applicant testified that his accommodation request was for training, that he wanted to be trained before being required to enter information in the Kronos system. Ms. Wegener testified that in her email response she was asking the applicant to proceed with the required task before being trained because staff had to be paid. She testified that the request for training was denied because she did not believe the task she was asking the applicant to do could wait until the applicant received training. She testified that she did not consider the applicant’s request to be a request to accommodate a disability but rather a request for training in order to help carry out a required task.
14The applicant testified that he also sent a letter to Rona from his doctor on February 23, 2009. This letter was before me and reads:
This is to certify the above patient has a permanent medical condition for which he is receiving treatment. This medical condition would affect his work performance and he may require specific accommodations.
15The applicant testified that he faxed this letter to the People and Culture Department and that he had a fax to show this to be the case. Ms. Corman and Ms. Wegener testified that they had never seen this letter prior to the hearing. The applicant testified that he never explicitly followed up on this letter with any Rona staff to inquire how Rona would respond to his doctor’s letter. He testified that this was because he was not working in an environment that he felt comfortable in, that he could raise this request without risk. The applicant testified that he also felt that Rona staff might be following up with his doctor.
16The applicant testified that the day after faxing his doctor’s note he sent an email to Ms. Corman. He considers this to be his third request for accommodation. This is a lengthy email in which the applicant provides an account of a fellow employee, Angela, at a trade show. Ms. Corman testified that this email was in response to her requesting that the applicant report on Angela’s actions. The email concludes with:
I know this backgrounder may seem long, but I wanted to answer your question by giving you proper context re: the date Angela balked at me, it was around the same as the Rona Home Show, in connection with the above events I can remember Ang telling me don’t ever bother or call me at home for that again or something along those lines.
Whew..! I think I’ll need some accommodation now, it’s difficult for me to remember verbatim what the precise words/dates were.
Hopefully this gives you the key points
17The applicant testified that this reference to accommodation was a follow up to the doctor’s note, that it was a further “prompt” for his need for accommodation.
18Ms. Corman testified that she did not consider that the email was a request for accommodation related to a disability. She testified that she understood that the applicant was indicating in the email that he had done his best to recall events that he had been asked to report on and that he was tired after providing this information.
19The applicant testified that he also told human resources staff at a social function in June 2009 that his wife was pregnant. He testified that the next week he told Ms. Ingram (who had just become his acting supervisor) that his wife had a high risk pregnancy and needed bed rest and that the applicant needed to be available to help. The applicant testified that he asked for accommodation to assist his wife and that Ms. Ingram had said this was ok. He testified that he had also indicated that he may need to take parental leave. This was two weeks before his employment was terminated. Ms. Corman and Ms. Ingram testified that the applicant had communicated that his wife was pregnant to his fellow human resources staff in June. Ms. Ingram denied that she had a further conversation with the applicant about needing accommodation in order to assist his spouse.
Poisoned Work Environment
20The applicant testified that he conferred with Ms. Richardson, Rona’s benefits advisor for Ontario when employees from his two stores would be involved in disability claims. He testified that Ms. Richardson would make comments that he found to be offensive, for example, referring to an employee who had made multiple claims as a “frequent flyer” and to a person who was “milking the system”. He testified that Ms. Richardson suggested a person that was filing a disability claim just wanted time off to go to the cottage and that a person could get a doctor’s note for anything. The applicant was of the view that these types of remarks were derogatory to persons with disabilities. He testified that they also made him anxious that if he ever had to file a claim related to his disabilities that he, too, would be subject to Ms. Richardson’s demeaning comments. He testified that Ms. Richardson’s comments created a poisoned work environment for him.
21The applicant testified that he did not tell Ms. Richardson that he found her comments to be offensive. He testified that he did not make a complaint about them to Ms. Wegener, Ms. Corman or to anyone else at Rona. The applicant testified that Ms. Richardson’s views and comments must have been known to others, and consequently they must have been accepted or condoned and there would be no point in complaining about her behaviour.
22Ms. Richardson denied making offensive comments about persons or their disabilities stating that she had a long career in administering disability benefits and that she acted in a professional manner. She testified that in most cases she did not know enough about the employees who made disability claims to make negative or positive comments about their situation. She testified that she may have used a term like “frequent flyer” in reference to a specific claimant but that this was, at worst, an inappropriate comment about how often the person filed a claim for benefits and not comment that demeaned the person for having a disability.
23Ms. Corman testified that she never received a complaint about Ms. Richardson’s and characterized Ms. Richardson as diligent and conscientious. I also had before me copies of emails exchanged between the applicant and Ms. Richardson that were professional in tone and content and a series of notes (called “Value Cards”) from the applicant to Ms. Richardson, thanking her for her help with benefits claims.
The Termination of the Applicant’s Employment.
24Ms. Corman testified that she learned in the first quarter of 2009 that she would need to reduce the human resources staff in the corporate office because of budget constraints. She testified that the position that was to be eliminated was occupied by Jennifer Salerno who was, at the time, on maternity leave. Ms. Salerno was scheduled to return from her maternity leave in July 2010. Ms. Corman testified that she was keen to keep Ms. Salerno given her knowledge, expertise and her approximately seven years of service. She testified that Ms. Salerno lived in Brampton. Ms. Corman testified that in order to keep Ms. Salerno she made the decision to offer Ms. Salerno the applicant’s human resources advisor position for Rona’s two Brampton stores and, accordingly, to terminate the applicant’s employment without cause.
25The meeting at which the applicant’s employment was terminated took place on July 20, 2010. The applicant, Ms. Corman and Ms. Ingram were present. I also had before me Ms. Corman and Ms. Ingram’s notes prepared shortly after the meeting. After Ms. Corman told the applicant that Ms. Salerno was taking his position and his employment was being terminated the applicant questioned why he could not be moved to another Rona store. He asked why he could not “bump” human resources advisors with less seniority given that one of the reasons Ms. Salerno was taking over his responsibilities was because of her seniority. Ms. Corman testified that the applicant had less than two years seniority that his length of service was not much greater than the persons he proposed to bump and that there were complications with potentially bumping certain other human resources staff. She testified that she told the applicant that she was not going to have the applicant bump another employee in order to retain the applicant and there was no obligation for Rona to do so.
26Ms. Corman testified that the applicant was considered to be a good employee and that there were no issues with the applicant’s performance that contributed to the decision to terminate his employment. Ms. Corman testified that the applicant having a learning disability and indicating that his wife was pregnant were not factors in the decision to terminate his employment. She testified that any request made by the applicant for leave related to his wife’s pregnancy would have been accommodated, noting it was common for human resources staff to go on maternity leave. She testified that the decision to terminate the applicant’s employment was made solely in order to accommodate Ms. Salerno’s return and to manage the need to reduce the number of human resources personnel.
27There was a further discussion at the July 20, 2009 termination meeting about whether there were other non-human resources positions available for the applicant at Rona and it appears there was some effort to clarify whether such positions were available. It appears that they were not. It was evident that the applicant was upset at the July 20, 2000 meeting and he communicated his intention to file an Application with the Tribunal if Rona proceeded to terminate his employment. On July 21, 2009 the applicant filed a small claims action for wrongful dismissal. This claim was later settled. On July 27, 2009 the applicant filed his first Application with the Tribunal.
The November 2009 Job Competition
28Rona posted a job for a human resources manager for two stores in the Toronto area on November 6, 2009. The applicant testified that he was of the view that there had been a commitment made at the time his employment was terminated to place him in any positions that were to become available and that this should have included this particular job. Ms. Corman testified that while there was an effort to identify other jobs for the applicant at the meeting on July 20, 2009 there was no commitment made to place the applicant in jobs that might become available in the future.
29The applicant testified that he applied for this posted job on November 13, 2009 by submitting his resume through the Rona website and that he received confirmation from the Rona website that his resume had been received. Ms. Ingram and Ms. Corman testified that this website is not used in Ontario for job competitions and that they were unaware that the applicant had submitted his application. They testified that the applicant should have submitted his application directly to Ms. Ingram at her email address as directed to do in the job advertisement that was posted for this particular job on the Workopolis website. The applicant testified that he understood he had the option of relying on the Rona website and preferred to do so because he believed Ms. Ingram would screen out his application in reprisal for the applicant filing complaints with the Tribunal and the Human Rights Professional Association of Ontario that both named Ms. Ingram.
30The applicant testified that after submitting his application he also emailed Ms. Ingram on November 13, 2010. The email states:
In future I will be able to do this position. I have applied to Rona for this position.
Ms. Ingram testified that the applicant had not attached his resume to this email nor had she received a resume from the applicant pursuant to the job posting on Workopolis so it was not apparent to her that the applicant had applied.
31On December 14, 2009 the applicant emailed Ms. Ingram that he had applied to the job competition on November 13 and asking about the status of his Application. On December 14, 200 Ms. Ingram emailed the applicant stating:
I am in receipt of you email below dated December 13, 2009
Please note the email received on November 13, 2009 and subsequently forwarded in your email below does not include an application for our HR Advisor posting, nor have I received one in any subsequent communication, according to my records.
At this time this posting is closed and we have concluded the interview process.
Ms. Ingram testified that eight candidates were interviewed. Their resumes were before me.
32The Application states that the applicant applied to a further job competition in January 2010. It was not disputed at the hearing that there was, in fact, no job competition held in January, 2010.
The June 2010 Job Competition
33In June 2010 Rona posted a 16 month contract position for a human resources advisor for two stores in the Windsor area. The applicant applied and was not selected for an interview. Ms. Ingram testified that she administered this job competition. Ms. Ingram testified that it was felt that the position required a person with knowledge of the Windsor area and its economy and who was familiar with local human resources practitioners. She testified that the position also had to be filled on short notice. Ms. Ingram testified that applications were screened for local candidates and that the seven persons selected for an interview were all from the Windsor area, all had local experience and all had more years of experience in human resources than the applicant. The resumes of these candidates were before me.
34The applicant contended that he had connections to Windsor and that he would have been prepared to transfer there for the period of the contract.
The May 2010 Job Competition with Noble
35Noble posted a job for a human resources generalist on May 6, 2010. Noble is a wholly owned subsidiary of Rona Revy with its own human resources department. The respondents intended to call April Jones as a witness to testify. Ms. Jones was the member of Noble’s human resources department who was responsible for the May 2010 job competition. However, it appears Ms. Jones indicated shortly before the hearing that she was unavailable (she now works for a different company in a different province). Consequently, Cindy Jacobs, a senior human resources advisor with Noble, testified as to her understanding of what took place during this competition.
36Ms. Jacobs testified that seven applicants were chosen to be interviewed. Their resumes were before me. Ms. Jacobs testified that the winning candidate then declined and a further 11 candidates were interviewed. Their resumes were also before me. The respondents’ position is that these candidates were more qualified than the applicant and this accounts for why he was not interviewed.
37There was a further aspect of this job competition that is relevant to note. When the applicant applied for the human resources position with Noble he sent an email to the CEO and to the Vice President of Human Resources for Rona to indicate that he had applied for this position with Noble and wanted to know if there was any reason he had not, as yet, been called or selected for an interview. Ms. Corman testified that this email was, in itself, inappropriate given that Noble and Rona were separate companies but it was also significant because it led Ms. Jones to contact Ms. Corman to ask why the applicant would be in contact with the CEO and VP of Human Resources of Rona in relation to a job competition at Noble. Ms. Corman testified that she told Ms. Jones she should consider the applicant’s application to Noble as she would any other and that if was determined to be qualified, interview him.
FINDINGS AND ANALYSIS
38The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46.
The Applicant’s Disabilities and Requests for Accommodation
39I need to decide whether the applicant had a disability or disabilities within the meaning of the Code and what these disabilities might be. The applicant testified that he had Tourette’s and ADD. The applicant provided no medical information to corroborate this claim. That said, I am prepared to accept, based on the applicant’s oral testimony, that he has Tourette’s and ADD. I do note that the applicant did exhibit physical and oral tics that were evident at the hearing. I further note the applicant did not claim nor was there any indication that the applicant’s disabilities affected the applicant’s ability to participate in the hearing.
40The duty of an employer to accommodate an employee’s disability arises when the employer is aware or ought reasonably to be aware that the employee has a disability and work related needs arising from this disability. See, for example, Crowley v Liquor Control Board of Ontario 2011 HRTO 1429. The applicant submits that the respondents ought to have known that he had Tourette’s and ADD even though he acknowledged that he did not inform the respondents of this fact.
41I do not accept this argument. The applicant provided no evidence to demonstrate that having verbal and physical tics and some difficulties with executive functions are necessarily indicators of Tourette’s and ADD and therefore the respondents ought to have known that he had these disabilities.
42As importantly, the fact that the applicant has identifiable tics and some degree of difficulty with executive functions does not necessarily mean that the respondents ought to have known that he had a disability or disabilities that required work related accommodation. It is significant that both the respondents and the applicant were of the view that the applicant was a good employee, that he was able to perform the required duties of his job. No performance issues were identified by the respondents or the applicant. Under these circumstances, it is my view that the onus was on the applicant to bring to the attention of the respondents his disabilities and the nature of any related accommodation he required in order to trigger the respondent’s duty to accommodate.
43The applicant did testify that he did not identify his disabilities in part because he was working in a poisoned work environment and an environment that was hostile to persons with disabilities. I do not find this claim credible. The only indices of this hostility that the applicant identified were Ms. Richardson’s comments. The applicant did not, in my view, establish why these comments made by a fellow employee would prevent him from seeking accommodation for his disabilities from his employer. Indeed this supposed hostile environment did not prevent the applicant from allegedly asking for accommodation for his disabilities on, according to the applicant, three occasions.
44I am also of the view that the applicant did, on another occasion, tell the respondents that he had a disability when he told Ms. Wagener that he had a learning disability. I find Ms. Wegener’s testimony on this point to be credible. She provided a detailed and ultimately persuasive account of what took place at the applicant’s performance appraisal when the applicant raised this issue. Ms. Corman also testified that she was aware the applicant had raised this issue during his performance appraisal.
45In my view the applicant was capable of advancing his own interests in the workplace and any difficulties he may have had arising from Ms. Richardson’s alleged comments does not explain why he was not more explicit in the information he did provide to the respondents about his disabilities or more active in pursuing his interests in accommodation.
46The applicant’s first identified request for accommodation is his September 30, 2008 email to Ms. Wegener. The applicant testified that the accommodation he was seeking was for training on a new time management program that he felt he needed in order to carry out a specific task. A request for training in this situation is understandable since it would clearly aid in carrying out the required task. Indeed, I can imagine anyone in the applicant’s situation might well have asked for such training. However, there is no indication that the applicant’s request is related to a disability. It is simply not evident that the applicant’s written request for one time training to carry out a designated task constitutes a request for an accommodation of a disability.
47It is also not evident that the applicant’s February 24, 2009 email to Ms. Corman is asking the respondent to do something to assist the applicant carry out his duties because of a disability. In the email the applicant describes what he observed about the actions of another employee and concludes:
Whew..! I think I’ll need some accommodation now, it’s difficult for me to remember verbatim what the precise words/dates were.
48Ms. Corman testified that she understood this passage to mean that the applicant found that the task of remembering a particular series of incidents as difficult and that the applicant needed to recover from the effort. I find this interpretation to be reasonable. The email does not, in my view, communicate that the applicant was requesting that Rona take certain actions in order to accommodate a disability.
49The applicant does state that he provided Rona with a doctor’s note that explicitly states that he needed accommodation for a disability. The applicant testified that he faxed this letter to Rona on February 23, 2010 and I had a fax before me to support this claim. However, I am not prepared to accept, based on the totality of the evidence before me, that the respondents received this letter and, in effect, simply disregarded it.
50To begin, it is not clear that the letter was received. The applicant, himself, speculated that perhaps the letter was not received by the respondents given the lack of response. I further note that the letter was not addressed to anyone and if received as a fax it may not have been forwarded to an individual for action.
51Ms. Corman and Ms. Wegener testified that they never saw this letter and that if they had they would have acted on it. I find this testimony credible. I find it improbable that managers of a dedicated human resources department of a large national employer would simply disregard a doctor’s letter indicating that a member of their own department had a disability requiring accommodation if such a letter came to their attention.
52I also find it relevant to note that the applicant testified that he never told the respondents about this letter, either before it was sent or afterwards. He testified that he never referred to it or explicitly followed up on it with the respondents in the period February 23 to July 20, 2009.
53The applicant did testify that his email to Ms. Corman on February 24 was a follow up to the doctor’s letter, what he called a “prompt”. It is not clear to me how the applicant’s February 24 email which suggests that it was difficult for the applicant to recall certain dates and times is linked to a doctor’s letter requesting accommodation for a disability. Even if it was linked in the applicant’s mind I do not understand why the applicant would not refer to this doctor’s letter and the request for accommodation with the respondents at any time after February 2009.
54The applicant also testified that he was of the view that the respondents may have been in contact with his doctor, that they were following up on his accommodation request. It is not clear to me that this explains why the applicant would take no action after February 24, 2009. Again I note that the applicant himself speculated that the respondent’s may not have received his doctor’s letter given that there was no identifiable response to it. I note here that the applicant was a trained human resources specialist who was aware of Rona’s policies and complaints processes and its accommodation practices. In my view he was capable of making sure that the respondents were clearly aware of a request for accommodation.
55A person asking for accommodation also has obligations under the duty to accommodate. The Supreme Court of Canada held in Central Okanagan School District No. 23 v. Renaud, [1999] 2 S.C.R. 970 that the individual seeking accommodation has an obligation to cooperate in the identification and implementation of reasonable accommodation. I am of the view that the applicant ought to have followed up on the doctor’s letter and did not. Under the circumstances I am not prepared to find that the respondents failed to meet a duty to accommodate a disability related need.
56The applicant makes the further allegation that the respondents failed to accommodate his requests for time to care for his spouse who was having a difficult pregnancy and for parental leave. While it was agreed that the applicant did indicate that the applicant’s wife was pregnant it was contested as to whether the applicant explicitly asked Ms. Ingram in July 2008 for accommodation in order to take time off to assist his spouse with a difficulty pregnancy or indicated an interest in parental leave. However, even if I accept that the applicant’s request for accommodation was made it is relevant to note that, according to the applicant, Ms. Ingram agreed to the request. It further appears that the alleged request was for time off that would have taken place after July 20, when the applicant’s employment was terminated. In other words there was no actual failure to meet a request for accommodation based on sex, if it indeed was made. The issue as to whether this alleged request for accommodation was a factor in the decision to terminate the applicant’s employment is addressed later in this Decision.
Poisoned Work Environment
57As noted in Smith v. Menzies Chrysler, 2009 HRTO 1936, human rights jurisprudence has long accepted that the “emotional and psychological circumstances in the workplace” which underlie the work atmosphere constitute part of the terms and conditions of employment. It is well-settled law that the prohibition against discrimination in employment under the Code affords employees the right to be free from a poisoned work environment. If comments and conduct related to a Code ground contaminate the work environment, then such circumstances can constitute a discriminatory term or condition of employment.
58I do not find that Ms. Richardson’s alleged comments about persons seeking disability benefits, even if true, created a poisoned work environment for the applicant. The evidence before me was that the applicant had a broad range of responsibilities of which working with Ms. Richardson was only one limited part. They did not share a work space (the applicant worked on location in two stores in Brampton, Ms. Richardson worked at the corporate headquarters). There was uncontested evidence that the applicant and Ms. Richardson’s written interactions were cordial and professional and that much of their interactions was positive. There was evidence that the applicant’s thanked Ms. Richardson on a number of occasions by posting Rona’s “V Cards” to acknowledge her assistance.
59The further evidence is that the alleged offensive comments were essentially about specific individuals whose efforts to obtain benefits Ms. Richardson questioned, for example, by making suggesting that one was a “frequent flyer” and another was “milking the system”. While these comments, if made, may be inappropriate and offensive to the applicant they were not pervasive, they were not directed at the applicant, and they did not, it appears, form the principal part of the applicant’s relationship with Ms. Richardson. It is not clear the degree to which comments that appear to question whether a specific person should be receiving a disability benefit can be said to stereotype or generalize about persons with disabilities or are demeaning to persons with disabilities. In my view these alleged comments do not rise to the level of creating a poisoned work environment for the applicant. In making this assessment, I give little weight to the applicant’s further stated concern that one of the reasons Ms. Richardson’s comment created a poisoned environment for him was because if he was to require disability benefits in the future that he, too, may be subject to disparaging comments by Ms. Richardson. This is a speculative concern.
60I find it significant that the applicant never complained about Ms. Richardson’s alleged remarks. He did not tell Ms. Richardson they were unwanted nor did he complain to Ms. Corman. I find his contention that he did not feel he could complain because Ms. Richardson’s comments were known and, in effect, condoned not to be credible. The applicant was a human resources person who was well aware of Rona’s Anti-Harassment Policy (and complaint process) and Code of Conduct. I do not see why he would not have made a complaint if he was as concerned with Ms. Richardson’s comments as contended. I further note that Rona did have an established procedure whereby the applicant could have complained anonymously if he was uncomfortable in complaining to Ms. Corman.
The Termination of the Applicant’s Employment.
61The applicant submits that his requests for accommodation based both on disability and sex and the respondents’ awareness that he had disabilities were factors in the decision to terminate his employment. I am not persuaded by these arguments.
62I am of the view that the respondents have provided a non-discriminatory explanation for why they decided to terminate the applicant’s employment. I accept that the respondents wanted to bring Ms. Salerno back to work from a maternity leave, that she was a valued employee who lived in the Brampton area and that she no longer had a home position in the People and Culture Department. I accept the respondents’ submission that they were also trying to manage their obligation under the Code to return Ms. Salerno to a position with Rona following her maternity leave. The respondent’s acknowledged that the applicant’s employment was terminated without cause in order to allow them to keep Ms. Salerno as an employee. The respondents can do this as long as this is not a pretext for terminating the applicant’s employment for Code related reasons.
63I am satisfied that this was not a pretext for getting rid of the applicant because he had a disability. Indeed, it is not clear on the evidence, that the respondents were even aware that the applicant had disabilities requiring accommodation at the time his employment was terminated.
64I am of the further view that the applicant’s alleged request for accommodation on the basis of sex was not a factor in the respondents’ decision. The applicant’s contention that the respondents would not accommodate a request to allow him leave to assist his spouse with a difficulty pregnancy or for parental leave is speculative and without an evidentiary base. Again, I note that the applicant stated that he was told by Ms. Ingram that his request for leave to assist his spouse would be granted.
65The applicant’s allegation of reprisal appears to be based on his alleged request or requests for disability-related accommodation, and that the respondents retaliated against him for asserting the right to such accommodation(s). As noted earlier I am not satisfied that the respondents’ did deny a request for accommodation or were even aware of a request for accommodation related to a disability. I simply see no evidence that this was a factor in the decision to terminate the applicant’s employment given the persuasive non-discriminatory reasons provided by the respondent for their decision.
66I further note that the respondents did not need to rely on a strict use of seniority to determine which employee they would retain when they decided that Ms. Salerno would be returning. They were not required to bump another employee as requested by the applicant. As noted in Vo. v. Complex Services, 2010 HRTO 948:
Length of service is considered by many employees to be important. However, an employer is entitled subject to the restrictions of the individual contract of employment or collective agreement if any to use criterion other than length of service in determining which employee to terminate. The decision to use a criterion other than length of service is not necessarily an indication that discrimination on the basis of race is at play.
The November 2009 Job Competition
67The applicant testified that he did not send his application to Ms. Ingram as directed to in the job posting for the November 2009 human resources position but rather to the general Rona.ca website. I accept the respondent’s testimony that this was not an accepted way of applying for a job and that the expectation was that candidates would apply as directed in the job ad and that the applicant, as a human resources specialist, would know this. The applicant testified that he did this because of a concern about Ms. Ingram, his former supervisor who had participated in his termination meeting and who he had named as a personal respondent in his first Application. This may be but the applicant failed to apply as directed.
68On November 13, 2009 he did email Ms. Ingram to state:
In future I will be able to do this position. I have applied to Rona for this position.
69There is no resume attached to this email and Ms. Ingram proceeded with the competition. When the applicant on Dec 11, 2009 writes to enquire as to what is happening Ms. Ingram writes back two days later to say that the competition is closed.
70I accept the respondents’ position that it was reasonable for them to assume that if the applicant, a person who was familiar with Rona’s human resources practices, had intended to apply for this competition he would have done so directly to Ms. Ingram, as directed by the job posting. However, there was no application submitted by the applicant to Ms. Ingram before November 13, 2010 that would indicate to Ms. Ingram that the applicant had applied to Rona for this position and no application was attached the applicant’s November 13, 2010 email to indicate he was applying at that time. I accept that the respondents did not have the applicant’s resume before them and that he was not considered for this position.
71Given these circumstances I do not find that the respondents excluded the applicant from consideration because of his disabilities or in retaliation for having filed an Application.
72I do note that the applicant also alleged, at one point in his testimony, that at his termination meeting he had been promised any future human resources positions that became available, a claim that the respondents denied. I prefer the respondents’ evidence on this point. I note that the applicant did not raise this claim in his dealings with the respondents around various job competitions (for example, in his November and December, 2010 emails to Ms. Ingram). In my view was no supporting evidence for the applicant’s claim and it was inconsistent with the way in which the applicant pursued job opportunities with the respondents.
The June 2010 Job Competition
73I accept the respondents’ submissions that that they deliberately targeted candidates with human resources experience in the Windsor area for this 16 month contract position. I accept the underlying rationale provided by the respondents for this decision, that they felt such experience was necessary for a short term contract position and that hiring locally would allow them to fill this position on short notice.
74The resumes of the candidates selected for interviews were before me. The candidates are all persons with experience in human resources in the Windsor area. They also all have at least five years of human resources experience (which is more than the applicant’s human resources experience). These candidates do not appear to be less qualified than the applicant and the applicant did not point to any candidate that he felt was less qualified than he was.
75It is Rona’s prerogative to limit the search for candidates on a geographic basis and given the respondents’ rationale for this decision and the fact that the selected candidates all had more years of human resources experience than the applicant I cannot find that limiting the candidates to the Windsor area was done as a pretext for excluding the applicant.
The May 2010 Job Competition
76There are two issues I must consider in relation to this job competition. The first is the applicant’s qualifications relative to the persons who were selected for an interview. I had before me the resumes of the seven candidates who were originally interviewed and the subsequent 12 candidates who were interviewed when the winning candidate from the first round of interviews declined the position that was offered by Noble. I have reviewed these resumes. It appears that everyone who was interviewed had at last five years of human resources experience which is more years than the applicant. The applicant did not identify any candidate that was, in his opinion, less qualified than the applicant. There is no evidence to indicate that Noble would have known that the applicant had a disability or disabilities. Under the circumstances I fail to see the evidence to support a contention that the applicant was excluded from this process because of his disabilities or reprisal for filing an application against Rona.
77The second issue is the fact that Ms. Jones, the human resources manager for Noble who was responsible for this competition spoke to Ms. Corman about the applicant. This arose out of the fact that the applicant had written to the CEO and Vice Chair of human resources of Rona to ask why he had not been screened into this job competition.
78I have carefully considered whether Ms. Corman may have communicated negative views of the applicant that led Ms. Jones to exclude him from the competition for a human resources position at Noble. This would support the allegation that the reason the applicant was not selected for an interview was because he was being retaliated against for his past actions with Rona. However, I find Ms. Corman’s recounting of what took place during her conversation with Ms. Jones to be entirely credible; that she advised Ms. Jones to select the applicant for an interview if she determined he was competitively qualified. In my view Ms. Corman was mindful of the applicant’s earlier actions including his Application to the Tribunal and as a consequence she communicated that it was in Ms. Jones’ interest to make sure that she dealt fairly with the applicant’s application for a position with Noble. I see no evidence that the applicant was treated unfairly or in a discriminatory manner in this job competition.
79For all of these reasons the Application is dismissed
80Dated at Toronto this 16th day of April, 2012.
“signed by”
Eric Whist
Vice-chair