Tilahun v. TriCo Group Inc., 2013 HRTO 1042

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abebe Tilahun

Applicant

-and-

TriCo Group Inc.

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: June 11, 2013

Citation: 2013 HRTO 1042

Indexed as: Tilahun v. TriCo Group Inc.

APPEARANCES

Abebe Tilahun, Applicant

Self-represented

TriCo Group Inc., Respondent

Heather Cameron, Counsel, and Matthew Demeo, Student-at-law

INTRODUCTION

1The applicant filed this Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on June 28, 2012, alleging that the respondent, his former employer, discriminated against him because of his of race and reprised against him contrary to s.8 of the Code. The applicant self-identifies as a “Black African and Canadian citizen.”

2By Case Assessment Direction (“CAD”) dated August 15, 2012, the Tribunal decided on its own initiative to convene a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the 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. In its CAD, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success.

3The summary hearing was convened by teleconference on November 29, 2012, and the applicant was given an opportunity to explain how he could prove his allegations that the respondent infringed his rights under the Code.

4During the November 29, 2012 summary hearing, a question arose as to whether certain of the allegations in the Application were outside of the Tribunal’s jurisdiction because of delay. Accordingly, the summary hearing was adjourned to December 2012 in order to give the parties an opportunity to make submissions on whether some or all of the Application ought to be dismissed on the basis of delay, pursuant to s.34(1) and (2) of the Code, and to make their remaining submissions on whether the Application ought to be dismissed as having no reasonable prospect of success.

5For the reasons that follow, with the exception of one allegation from March 24, 2011, I find that the applicant has no reasonable prospect of success in proving that the respondent discriminated against him because of his race or reprised against him contrary to s.8 of the Code. In addition, the allegations from 2007 to 2009 are dismissed on the basis of delay, as is the allegation that the applicant experienced discrimination on March 24, 2011.

6Accordingly, the Application is dismissed in its entirety.

BACKGROUND

7The respondent has not yet been required to file a Response to the Application. Accordingly, this decision is based on the facts as asserted by the applicant and documents submitted by the parties.

8The respondent is in the business of making packaging. During the relevant time frame, the respondent employed approximately 50 employees and the workplace was organized into lines, with five or six employees working on a given line under the supervision of a line captain.

9The respondent hired the applicant as a production worker in 2004. In 2007, the respondent promoted the applicant to the position of line captain. In that position, the applicant’s responsibilities included supervising the five or six employees who worked on his line and ensuring that the quality and quantity of the product his line produced were in accordance with company targets.

May 2012 warning

10On or about May 22, 2012, the applicant’s supervisor told the applicant that he was being given a “verbal written warning” for low productivity on his line during the week of May 14, 2012. The warning stated:

Production well below productivity requirements for the week of May 14, 2012. As a line captain it is your responsibility to meet the production goals set forth for the line in which you have been tasked to run. As the production goals have been stated that all production lines must meet 80% productivity or higher. For failing meet (sic) these goals for the entire week without the accompaniment of proper notation on you (sic) production sheets you are being issued a verbal written warning.

11The applicant’s supervisor, “Shane”, asked the applicant to sign the written warning. However, according to the applicant’s May 29, 2012 letter to the respondent, the applicant refused to do so because he was “not convinced” that he deserved the warning. Specifically, in his May 29, 2012 letter and during the summary hearing, the applicant indicated that any failure of his line to meet the respondent’s productivity targets was the result of an equipment problem on his line, which he had notified management of a number of times. In addition, the applicant took the position that his line was less productive because one of the workers on the line had been injured and was being accommodated with light duties. Finally, the applicant contends that he did not know what his line’s target was. The applicant submits that, when he refused to sign the May 22, 2012 warning, he told the supervisor that he would talk to management about the warning.

12The applicant alleges that he contacted the respondent’s human resources department the next day to complain that the supervisor had attempted to give him a warning for something that was not his fault.

13On or about May 24, 2012, the respondent’s manager, “Brock”, asked the applicant a second time to sign the written warning for low productivity. Once again, the applicant refused and explained why he felt that he was not responsible for his line’s low productivity during the week in question. The applicant alleges that the manager responded to the applicant’s refusal to sign the warning by telling him to “sign [the warning] or leave the building with three days suspension”. The applicant still refused to sign and told the manager that he had contacted human resources about the warning and explained to them the reasons why he was “declining” to sign and/or accept it. The applicant submits that the manager then told the applicant to leave the building with three days’ suspension or the manager would “grab” the applicant and “drop [him] out.” The applicant submits that he said nothing in response but he still did not leave. The applicant submits that the manager told him that if he did not leave, the manager would call the police. The applicant still did not leave. The police were called. The applicant finally left the respondent’s premises after the police arrived and he explained the matter to them. The applicant submits that, once he knew the police were being called, he had to wait for them to arrive so that he could explain his side of the story to them.

Termination of Employment

14On Monday, May 28, 2012, the respondent suspended the applicant for a period of one week in order “to allow some time [for the respondent] to further assess [its] best interests moving forward.” The suspension letter also cited the applicant’s refusal to accept the warning and his subsequent behaviour which required the respondent to contact the police to escort the applicant from its facilities.

15On June 1, 2012, the respondent advised the applicant that it had decided to terminate his employment because of what had occurred on May 24, 2012.

16The applicant filed this Application on June 28, 2012, shortly after his employment was terminated, alleging that Brock reprised against him contrary to s.8 of the Code when he told the applicant that if he did not leave, he was going to “drop him out”. The applicant also alleges that his suspension and/or termination were discriminatory because of his race.

Alleged Harassment and Mistreatment during Employment

17When he filed his Application, the applicant also alleged that he had been mistreated in the respondent’s workplace, because of his race, during his employment, from 2007 to 2012. Specifically, the applicant alleges that various coworkers and certain members of management mistreated the applicant and/or spoke to him in a “provocative” manner on several occasions over the years. In addition, the applicant contends that the respondent gave him three warnings over the years for things that were not his fault, the third one being the May 22, 2012 warning. The applicant also contends that the respondent promoted white coworkers who were junior to him to supervisory and managerial positions, instead of the applicant.

18The applicant submits that he questions whether events would have unfolded differently if he had not been African-Canadian and that this is the question he wants the Tribunal to address.

ANALYSIS AND DECISION

Allegations from 2007 to 2009 are Untimely

19Section 34 of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident (or within one year of the last incident, if there was a series of incidents) to which the Application relates. It also provides that a person may not apply to the Tribunal more than a year after the incident to which the Application relates unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no one would be substantially prejudiced by the delay.

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

20The respondent points out that the vast majority of the applicant’s allegations occurred more than one year before the Application was filed (i.e. before June 28, 2011). The respondent submits that all of these allegations ought to be dismissed on the basis of delay.

21At a minimum, the respondent submits that all of the applicant’s allegations concerning events that allegedly occurred prior to 2011 ought to be dismissed on the basis of delay because there is a gap of more than one year between the alleged discriminatory incidents. In particular, the respondent submits that the applicant does not allege that any discriminatory incidents occurred between October 2009 and February 16, 2011, the date on which the applicant’s jacket was allegedly stolen from his locker by an unknown person. The respondent submits that this gap of more than one year between the alleged discriminatory incidents interrupts the alleged “series of incidents” such that the events that occurred prior to February 2011 cannot be considered to be part of the “series of incidents” to which the Application relates: Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9; Chintaman v. Toronto District School Board, 2009 HRTO 1225.

22I agree that the allegations from 2007 to 2009 are not part of the “series of incidents” to which the Application relates.

23In his Application, the applicant alleges that the manager, “Mr Paul”, gave him unjust written warnings in September 2007 and March 2009, the first for faulty product that the manager could not prove had come from the applicant’s line, and the second for failing to wear safety boots. During the summary hearing, the applicant also raised an allegation that “Mr. Paul” reprised against him for refusing to sign the September 2007 warning by changing the applicant’s shift. The applicant also alleges that, at different points in 2007, he gave orders to employees working on his line and they got angry and said the “f” word to the applicant in response. The applicant also alleges that, in September 2007, a coworker, “Donna”, told the applicant, “We don’t trust you”, when management issued him a written warning for faulty product. On another occasion in October 2007, the applicant alleges that “Donna” “interfered” with the applicant’s work, contrary to company policy, when she showed the applicant how to do something and told him that he did not know how to do his job. The applicant alleges that there were other incidents with “Donna” on September 10, 2009, when she allegedly told the applicant that he did not know how to do his job, and on October 7, 2009, when she allegedly yelled at the applicant for being late for his shift, even though he was on time.

24The Tribunal’s case law has generally held that a gap of more than one year between alleged discriminatory incidents means that the incidents cannot be considered a “series of incidents” for the purposes of s.34(1) of the Code. In this case, there are no allegations of harsh or abusive treatment between October 7, 2009 and February 16, 2011. In my view, the 16-month gap between alleged discriminatory incidents is simply too long for the incidents from prior to October 7, 2009 (i.e. the allegations from 2007 to 2009) to be considered part of the “series of incidents” to which the Application relates. Accordingly, I find that the allegations relating to events that allegedly occurred from 2007 to 2009 are untimely.

25In coming to this conclusion, I have specifically considered whether the promotion of two (allegedly) white coworkers in June and December 2010 could be regarded as discriminatory incidents that connect the alleged discriminatory incidents prior to October 2009 to the subsequent incidents of February 2011 onwards, such that they all constitute one “series of incidents”. In my view, they cannot. (I considered this, even though the applicant did not specifically advance this argument when he made his submissions on delay, because he seemed to suggest at one point that the 2010 promotions of two coworkers, “Shane” and “Brock” should be regarded as incidents in the “series of incidents” to which the Application relates. By way of background, I note that during the summary hearing, the applicant was unable to say, even in general terms, when the alleged discriminatory promotions of “Shane” and “Brock” occurred. It was the respondent who provided the dates of such promotions before the hearing reconvened in December 2012.)

26The Tribunal has held that in order for incidents to form part of a series, there must be some connection between the incidents such that they may be reasonably viewed as a pattern of conduct. (See, Baisa v. Skills for Change, 2010 HRTO 1621 at para. 22; Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695; Thambipillai v. Toronto District School Board, 2011 HRTO 487; Aberdeen v. University of Toronto, 2010 HRTO 2514; Farrell v. Barrie Police Services Board, 2011 HRTO 1442; Hattori v. University of Ottawa, 2011 HRTO 1747.) A “series of incidents” cannot be comprised of incidents relating to discrete and separate issues. (Baisa, above.)

27In my view, the Tribunal should be cautious about adopting too strict an approach in determining whether alleged discriminatory incidents are sufficiently connected to comprise a “series of incidents”. The fact that discriminatory treatment may manifest in different ways should not automatically be taken to mean that such treatment does not constitute a pattern of conduct.

28That said, even taking a broad view, I do not see how the promotion of two of the applicant’s white coworkers in 2010 (and leaving aside that one of the coworkers, “Brock”, was actually first promoted to an “acting supervisor” role in May 2009) is sufficiently related to the applicant’s allegations that, from 2007 to 2009, a number of the applicant’s coworkers spoke to him harshly and management gave him two unjust written warnings, such that all of these things can be regarded as a pattern of conduct. In my view, these are separate and discrete issues. As a result, the respondent’s decision to promote two white employees in 2010 cannot be construed as part of the “series of incidents” that extends back to and includes the incidents from 2007 to 2009 and cannot serve to render the 2007 to 2009 allegations timely.

29The applicant could still pursue the allegations from 2007 to 2009 if he had established that the delay in pursuing them was incurred in good faith and that no one would be substantially prejudiced by the delay (s.34(2)). However, the applicant has not established that the delay in pursuing his allegations was incurred in good faith. I specifically asked the applicant during the summary hearing the reason for the delay in pursuing his allegations that the respondent infringed his rights under the Code from 2007 to 2009. The applicant explained that the reason he did not pursue a human rights claim in relation to the alleged events of 2007 to 2009 prior to filing this Application in June 2012 was because he did not think of it at the relevant time. The applicant also submitted that instead of pursuing a human rights complaint, he always tried to bring his complaints to management to solve. Neither of these explanations constitutes a good faith reason for the applicant’s delay in pursuing the 2007 to 2009 allegations. It follows that the allegations pertaining to events that allegedly occurred from 2007 to 2009 must be dismissed because of delay.

30In any event, even if I had found the allegations from 2007 to 2009 were timely, I would still have dismissed them. This is because, with the exception of one alleged coworker comment on March 24, 2011, I find that the applicant has no reasonable prospect of success in proving that any of the mistreatment complained of in the Application was linked to his race or constituted a reprisal within the meaning of s.8 of the Code.

No reasonable prospect of success

31As noted above, in this Application, the applicant alleges that he experienced discrimination because of his race and/or reprisals contrary to s.8 of the Code when coworkers and management made provocative and/or abusive comments to the applicant, when an unknown person tampered with his locker, when management gave the applicant written warnings for things that were not his fault, when management promoted white coworkers who had not worked for the company for as long as the applicant (i.e. were junior to him), and finally by suspending and then firing the applicant in May/June 2012.

32With the exception of one comment on March 24, 2011, when an employee “Jordan” allegedly responded to one of the applicant’s orders by telling him to “go back to where he had come from” (addressed below), I find that the applicant has no reasonable prospect of proving that any of the alleged mistreatment was linked to his race. Nor does the applicant have any reasonable prospect of proving his allegations that the respondent reprised against him within the meaning of s.8 of the Code.

“Provocative comments and abusive words”

33In addition to the 2007 to 2009 allegations of mistreatment, described above at para. 23, the applicant alleges that there were a few occasions on which coworkers and/or management made “provocative comments” to him in 2011 and 2012.

34In particular, the applicant alleges that, on March 30, 2011, an employee from another line came to the applicant’s line and said the “f” word. The applicant submits that the employee in question was not complaining about anything and the applicant has no idea why he did what he did. On June 27, 2011, the applicant alleges that a supervisor, Shane, got angry and said the “f” word because the applicant’s line was not running. The applicant explained that no one’s line was running because they were waiting for product to arrive. On March 29, 2012, the applicant complains that Shane did not tell the applicant’s entire line of five or six employees that they could take their half-hour meal break between 8:00 p.m. and 8:30 p.m. The applicant alleges that when he finally asked Shane, around 10:00 p.m., why he had not given his line a lunch break, Shane was upset and said the “f” word.

35In my view, with the exception of the alleged comment made by Jordan on March 24, 2011 (addressed below), the applicant has no reasonable prospect of proving that the alleged offensive comments or conduct by coworkers or management was linked to his race.

36It is well-established that the Tribunal does not have the power to remedy mistreatment, “discrimination”, or “harassment” which is not based on a prohibited ground in the Code. Thus, in order to succeed in his Application, the applicant must do more than point to his membership in a racialized group and an unpleasant interaction: Peel Law Association v. Pieters, 2012 ONSC 1048 at para. 44. He must allege facts that, if proven to be true, could provide the necessary evidentiary basis for the Tribunal to conclude that the disadvantageous treatment complained of was related to his race.

37In this case, aside from a bald assertion, the applicant was unable to point to any evidence during the summary hearing by which he might prove that the hostile manner in which coworkers and/or management allegedly spoke to him on several occasions over the years was linked to his race. The applicant certainly describes a number of incidents over the years when employees on his line or other coworkers treated the applicant in a hostile manner. He also describes occasions when a supervisor got angry and used the “f” word upon discovering that the applicant’s line was not running or upon learning and/or being confronted about the fact that a whole group of employees (not just the applicant) had missed their lunch break. However, there is nothing about the alleged incidents, in my view, that would allow the Tribunal to conclude that the “unpleasant interactions” that the applicant occasionally experienced in the workplace over the course of his employment were linked to the applicant’s race.

38The applicant may genuinely believe that the “provocative comments” and “abusive words” he complains of were because of his race. However, the applicant’s belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination has occurred.

39In sum, I find that there are no facts alleged in this case that, if true, would allow the Tribunal to conclude that the alleged incidents of “provocative” comments and/or conduct by coworkers and/or management constituted discrimination against the applicant because of his race. Accordingly, this aspect of the Application is dismissed as having no reasonable prospect of success.

Locker incidents

40I also dismiss the applicant’s allegation that incidents with his locker constituted discrimination by the respondent. The applicant alleges that an unknown person broke into his locker at work and stole his jacket on February 16, 2011; that, on August 22, 2011, an unknown person “broke” his locker and tore his shoe; and that, on January 19, 2012, his locker was found open. The applicant contends that all of these incidents constituted discrimination against him because of his race. However, the applicant has no reasonable prospect of proving this.

41The fact of the matter is that the applicant has no idea who at work tampered with his locker, whether it was one person, or two or three different people. Nor is there any basis upon which the Tribunal might infer which of the approximately 50 people employed by the respondent was responsible. Against that backdrop, in my view, it would be impossible for the Tribunal to conclude that the applicant’s locker was tampered with because of his race, much less that such incidents constituted discrimination against the applicant by the respondent employer. This aspect of the Application is dismissed as having no reasonable prospect of success.

Management’s Failure to Take Action in respect of the Applicant’s Complaints of Coworker Mistreatment

42Again, with the exception of his alleged complaint about the March 24, 2011 comment made by “Jordan”, I also dismiss the applicant’s claim that the respondent infringed his rights under the Code by not taking any action in respect of the complaints the applicant allegedly made about coworker mistreatment and the above-noted locker incidents.

43The applicant alleges that he complained to management each time an employee at work spoke to him with “provocative” or “abusive” words and when someone tampered with his locker. (The respondent disputes this.) However, with the exception of the March 24, 2011 comment, there is no allegation that the applicant ever suggested to the respondent employer that any of the alleged mistreatment was related to the applicant’s race, nor is there any basis to support that the respondent reasonably ought to have known this. Accordingly, there is no basis to find that the respondent’s alleged inaction in respect of the applicant’s complaints was discriminatory or otherwise infringed the applicant’s rights under the Code. There is no obligation under the Code on employers to address employee misconduct that is not based on a prohibited ground of discrimination under the Code. This aspect of the Application is also dismissed as having no reasonable prospect of success.

Vacation pay

44The applicant also contends that, at some point during his employment, he was owed 120 hours’ vacation pay, but received only 117 hours. The applicant alleges that he asked “Mr Paul” about this and he said that he would look into it. However, he never got back to the applicant. The applicant alleges that this was another incident of discrimination based on his race.

45This allegation is dismissed as having no reasonable prospect of success. There are no facts alleged that, if true, would allow the Tribunal to conclude that the applicant was paid three hours’ less vacation pay than he was owed, or that Mr. Paul failed to get back to the applicant about the issue, in whole or in part, because of the applicant’s race.

Failure to Promote

46Likewise, I dismiss the applicant’s allegation that the respondent’s failure to promote him above a line captain position to a supervisory or managerial position was because of the applicant’s race.

47At the outset, I note that the Application itself contained no particulars of the allegation that the respondent failed to promote the applicant because of his race. However, during the summary hearing, the applicant argued that he experienced discrimination when the respondent promoted two white employees, “Brock” and “Shane”, to be supervisors instead of the applicant in 2009 and 2010. (The respondent indicated during the summary hearing that “Brock” identifies as having one black and one white parent.)

48During the summary hearing, the applicant explained that he proposes to establish that the promotions of Brock and Shane were discriminatory by establishing (1) that Brock and Shane were junior to the applicant (i.e. they started working with the company as production workers (in 2007) after the applicant did); and (2) by establishing that they were “handpicked” for promotions instead of pursuant to a job competition process. In my view, these things, even if true, are insufficient to establish that the respondent’s failure to promote the applicant to a supervisory position was linked to his race.

49The respondent does not dispute that Brock and Shane had been with the company for a shorter period than the applicant when they were promoted as supervisors. (They both started at the company as production workers at different points in 2007, whereas the applicant started in 2004. Both were promoted to line captain positions in 2008. The applicant was promoted to a line captain position in 2007.) However, the respondent submits that there is nothing discriminatory about that. The respondent contends that it promotes employees based on their suitability for the supervisory or managerial role, not their length of service with the company. It submits that this was also the reason that Shane and Brock were promoted, and that their race was not a factor in the decision to promote them.

50I agree with the respondent that the mere fact that employees who were junior to the applicant were promoted as supervisors, while the applicant was not, is not a basis to conclude that any of the employees’ race was a factor in whether or not they were promoted. It is clear that the applicant takes great issue with the fact that the respondent promoted employees who were junior to him. However, even if this is unfair in a general sense, it is not prohibited conduct under the Code.

51Nor is the fact that the respondent chose to select which of its production workers it wished to promote to supervisory roles, without running a job competition, sufficient, on its own or taken with the applicant’s other allegations, to establish that the applicant’s race was a factor in the decision not to make him a supervisor. I take the applicant’s point that when hiring and promotion decisions are made in the absence of a formal job competition process, then, generally speaking, subjective factors might come into play more than might otherwise be the case. However, in this particular case, the applicant does not allege any facts that, if true, would allow the Tribunal to conclude that Shane and Brock were not promoted based on their suitability for the job or that their race or the applicant’s race factored into the respondent’s decision in any way. The applicant contends the respondent failed to promote him because it assumed that the applicant was not a “contender” because of his race. However, the applicant has no evidence that this assumption was in place. Rather, the applicant’s claim is based on mere speculation that the respondent assumed things about him because of his race. It is well-established that speculation is insufficient to found a discrimination claim under the Code. The applicant’s claim that the decision to promote Shane and Brock as supervisors, instead of the applicant, was discriminatory is dismissed as having no reasonable prospect of success.

52At a fairly late stage of the summary hearing, the applicant also attempted to argue that the respondent’s decisions to hire Mike Dunn as Plant Coordinator in 2011, and to promote a Mr. Lamb as a supervisor at some point prior to 2011, were also discriminatory based on race.

53The arguments advanced by the applicant in support of his claim that the promotion of Mr. Lamb was discriminatory are the same as those advanced in respect of the promotions of Shane and Brock. There are no additional factual allegations with respect to the promotion of Mr. Lamb that, if true, might allow the Tribunal to conclude that race was a factor in the respondent’s decision to promote Mr. Lamb instead of the applicant. The applicant’s claim that he experienced discrimination as a result of the promotion of Mr. Lamb is dismissed accordingly as having no reasonable prospect of success.

54Nor does the applicant have any reasonable prospect of proving that the respondent’s decision to hire “Mike” as SAP Coordinator in 2011 constituted discrimination against the applicant because of his race. There is no dispute that “Mike” did not work as a production worker before being “promoted” to his managerial role. Rather, he was hired in 2011 from outside the company to fulfill the Coordinator role because of his expertise in certain software relevant to the respondent’s production processes. The applicant does not allege that he had the requisite expertise to perform the Coordinator role. There are no facts alleged that if true would allow the Tribunal to find that the hiring of “Mike” was discriminatory.

55For all of the above reasons, the applicant’s claim that the respondent discriminated against him by failing to promote him is dismissed as having no reasonable prospect of success.

Warnings

56Nor does the applicant have any reasonable prospect of proving that the written warnings he received on September 13, 2007, December 9, 2011, or May 22, 2012, for failing to meet quota or for quality issues were related to his race.

57The applicant contends that the warnings were unfair insofar as he was disciplined for things that were not his fault. For example, in September 2007 and December 2011, the applicant alleges that he received written warnings for faulty product, even though there was no proof that it had come from the applicant’s line and/or it had not come from the applicant’s line. The applicant contends that the May 22, 2012 warning was unfair because it was not his fault that his line did not meet quota (see para.11 above).

58During the summary hearing, the applicant raised an additional allegation about a March 2009 warning he received from “Mr. Paul” for not wearing his safety boots to work. The applicant acknowledges that not wearing his boots was contrary to company policy. However, he feels that the manager ought to have let the applicant borrow a pair of spare safety shoes instead of giving him a warning. The applicant feels that the March 2009 warning was unfair as well.

59However, in order to have any reasonable prospect of establishing that the warnings were discriminatory, it is not enough for the applicant to establish that they were unjust or undeserved. Rather, to succeed in his discrimination claim, the applicant must be able to establish all or part of the reason that he received the unjust and/or undeserved warnings was his race. The applicant makes a bald allegation that his race was the reason that the respondent treated him unfairly by giving him undeserved warnings. However, during the summary hearing, he did not point to any evidence upon which the Tribunal itself might conclude that the warnings were linked in any way to the applicant’s race. The allegation that the respondent discriminated against the applicant by giving him the above-noted warnings is therefore dismissed as having no reasonable prospect of success.

Suspension and Termination

60I must also dismiss the applicant’s contention that the respondent reprised against him contrary to s.8 of the Code when the manager, “Brock”, sent the applicant home on May 24, 2012, and/or by suspending and ultimately firing him in May/June 2012.

61Section 8 of the Code provides as follows:

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.

62In order to succeed in a claim of reprisal under the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against him for claiming or enforcing his rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.

63In this case, the applicant has no reasonable prospect of proving that the respondent retaliated against him for engaging in any of the three protected activities identified in s.8 of the Code, because the applicant has no reasonable prospect of success in proving that he engaged in any of the three activities.

64The applicant contends that his manager threatened to “grab and dump him” outside because he complained to human resources about the May 22, 2012 warning being unjust. Even if that is true, however, the manager’s actions would not constitute a reprisal within the meaning of the Code. The applicant does not allege that he complained to human resources that the May 22, 2012 warning was discriminatory on the basis of race or any other prohibited ground under the Code. Rather, he submits that he complained to human resources that management was trying to give him a warning for something that was not his fault. The right not to be unjustly disciplined is not a right under the Code. Accordingly, the applicant was not claiming or enforcing his rights under the Code when he complained to human resources. In the circumstances, even if Brock sent the applicant home on May 24, 2012, in retaliation for him having complained to human resources that his warning was unjust, the applicant has no reasonable prospect of proving that the respondent reprised against him within the meaning of s.8 of the Code. Similarly, if the applicant’s suspension or the termination of his employment was somehow linked to his human resources complaint that the May 22, 2012 warning was undeserved, they could not constitute reprisals within the meaning of s.8 of the Code. The applicant’s reprisal claim is dismissed accordingly.

65During the summary hearing, the applicant also raised an additional allegation that “Mr. Paul” reprised against him in or around September 2007 for refusing to sign a warning for faulty product and/or because the applicant told Mr. Paul that he intended to complain to human resources that the warning was undeserved. Specifically, the applicant alleges that “Mr. Paul” transferred him from the evening shift to the morning shift approximately three weeks after the warning, telling the applicant that the company needed a line captain on the morning shift. The applicant submits that he said “okay” and did not protest the change in shift at the time. For the same reasons articulated above, this allegation has no reasonable prospect of success. The applicant was not claiming or enforcing his rights under the Code when he refused to sign a warning for something he did not feel was his fault and/or when he said that he intended complain to human resources that the warning was undeserved. Accordingly, even if the change in shift was linked to the applicant’s reaction to the September 2007 warning, it could not constitute a reprisal within the meaning of s.8 of the Code.

66I must also dismiss the applicant’s claim that the respondent’s actions in sending him home on May 24, 2012, suspending him pending further consideration on May 28, 2012, and terminating his employment on June 1, 2012, were discriminatory because of race. It is clear that the applicant feels that the respondent treated him unfairly in May and June 2012: first, by attempting to give the applicant a warning for low productivity, which the applicant feels was not his fault; then, by sending him home and/or suspending him when he refused to accept the warning; and finally by terminating his employment because of his conduct on May 24, 2012, including the fact that the applicant refused to leave the plant when ordered to do so by the manager. However, even if the respondent’s actions were harsh or unfair in a general sense, there are no facts alleged that if true would allow the Tribunal to conclude that the applicant’s race was a factor in the manner in which he was treated in May and/or June 2012.

67Nor does the fact that, when it terminated the applicant’s employment, the respondent offered to pay the applicant a certain amount of money in exchange for a full and final release from all legal claims, including claims under the Code, assist the applicant in proving that the respondent discriminated against him because of race. The thrust of the applicant’s argument is that the respondent’s attempt to get him to give up his right to pursue human rights claims against it was tantamount to an admission that the applicant’s termination was based on human rights issues, and not performance-related. I cannot agree. On the contrary, I agree with the respondent that the release the applicant was given an opportunity to sign was the sort of standard release that is frequently used to finalize the end of an employment relationship. There is nothing about it that could cause the Tribunal to conclude that the respondent discriminated against the applicant or otherwise infringed his rights under the Code.

68The applicant’s claim that his May 2012 suspension and/or June 2012 termination were discriminatory based on race is dismissed as having no reasonable prospect of success.

March 24, 2011 comment is untimely

69Finally, I wish to address the applicant’s allegation that another employee made a racial slur to him on March 24, 2011.

70On March 24, 2011, the applicant alleges that he gave a direction to an employee, “Jordan”, and that Jordan responded by telling the applicant to “go back to where he had come from.” The applicant alleges that the supervisor, Brock, was present when Jordan made the alleged comment. (Brock denies this.) In addition, the applicant alleges that he complained about the comment to the manager, “Mr. Paul”, but the manager did nothing about the alleged racial slur. The applicant contends that the comment and the respondent’s failure to do anything about it constituted discrimination because of race, contrary to the Code.

71In my view, the March 24, 2011 allegation, if proven, is the sort of allegation that could lead to a finding that the applicant’s rights under the Code were infringed. Nonetheless, I agree with the respondent that the March 24, 2011 allegation must be dismissed because it is untimely.

72As noted above, the Application in this matter was filed on June 28, 2012. Accordingly, in order for the March 24, 2011 allegation to be timely, it would have to be part of a “series of incidents” that culminated in the one-year period prior to the filing of the Application. In my view, it is not.

73In the one-year period preceding the filing of the Application, the applicant alleges that someone tampered with his locker, that he received two written warnings for things that were not his fault (December 19, 2011 and May 22, 2012), and that, in March 2012, the supervisor Shane failed to give the applicant’s line their lunch break at the usual time of 8:00 p.m., and then got upset and swore when the applicant asked him about it at 10:00 p.m. In my view, neither these nor any other alleged discriminatory incidents in the one-year period preceding the filing of the Application are sufficiently related to the March 24, 2011 incident, such that the March 24, 2011 incident can be reasonably regarded as part of a “series of incidents” that culminated in the one-year period prior to the Application being filed. Accordingly, the applicant’s allegation that he was discriminated against on March 24, 2011 is untimely.

74In coming to this conclusion, I have specifically considered whether the fact that Brock was the person who suspended the applicant on May 24, 2012 is sufficient to connect the March 24, 2011 and May 24, 2012 incidents, such that they may be considered as part of a “series of incidents”. In my view, it is not. The applicant alleges that Brock did nothing on March 24, 2011 after witnessing another person, Jordan, tell the applicant to go back to where he had come from. In my view, this is not sufficiently related to the allegation that Brock sent the applicant home on May 24, 2012, for refusing to accept a warning for low productivity on his line for the March 2011 and May 2012 incidents to be regarded as part of a “series”.

75Nor has the applicant provided a good faith explanation for his failure to pursue the March 24, 2011 allegation in a timely manner. Accordingly, the March 24, 2011 allegation is dismissed because of delay in accordance with s.34(1) and (2) of the Code.

76For all of the above reasons, the Application is dismissed.