Chau v. Roy Foss Motors Ltd., 2013 HRTO 1061

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cang Chau Applicant

-and-

Roy Foss Motors Ltd. Respondent

DECISION

Adjudicator: Alison Renton Date: June 14, 2013 Citation: 2013 HRTO 1061 Indexed as: Chau v. Roy Foss Motors Ltd.

APPEARANCES

Cang Chau, Applicant Daniel Chodos, Counsel

Roy Foss Motors Ltd., Respondent Jonathan Maier, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal.

2A hearing was held on December 5, 6, and 7, 2012 with final submissions made by telephone on January 15, 2013. During the hearing, the Tribunal heard viva voce evidence from the applicant and the respondent’s witnesses: Dave Parke, Alain Daoust, Larry Morrison, and Yashar Amirvar. The witnesses testified in that order. Apart from the applicant and Mr. Parke, the other witnesses were excluded from the hearing until such time as they testified. I issued an oral ruling that Mr. Parke could sit in during the hearing as the respondent’s advisor and that the applicant could address this during his final submissions. However, he did not.

3Although Mr. Morrison had previous employment with the respondent, the evidence about which he testified took place after he was an employee and while he was employed as a service manager at another dealership. Mr. Daoust was no longer an employee at the time that he testified and was subpoenaed by the respondent, and Mr. Amirvar holds another position with the respondent from the position he held when he testified.

4The respondent is a full-service automobile dealership which includes a service department. The employees in the service department supply the respondent’s customers with basic vehicle maintenance services, including tire rotation, battery replacements, oil changes and replacement of oil housing units.

5The applicant worked for the respondent in its service department as a lube technician from September 25, 2000, until August 8, 2011, when he was terminated. He suffers from kidney stones. He alleges that his termination was contrary to the Code on the basis of his disability and that the respondent failed to accommodate his disability.

brief conclusion

6I find that the respondent did not discriminate against the applicant with respect to disability in employment or fail to accommodate him when it disciplined and subsequently terminated his employment. I find that the applicant has not been able to establish that he was reprised against within the meaning of the Code. The Application is dismissed.

the evidence

7The Application is essentially about three events that occurred in July 2011, for which the applicant received disciplinary letters, which led to the applicant’s termination on August 8, 2011. The letters, all dated July 25, 2011, pertained to: leaving work without management approval on July 20; calling in sick on July 21 and July 22 and being required, by the respondent, to provide a doctor’s note for these absences as well as future absences; and a written warning in relation to the quality of the applicant’s work. I am not setting out a recitation of all the evidence heard, but will be more limited to the evidence pertaining to the issues giving rise to the Application. I will note where the evidence is disputed. In light of my conclusion that the Application is dismissed, it is not relevant to set out the applicant’s evidence with respect to the impact his termination had on him and his efforts to find alternate employment.

8As a lube technician, the applicant testified in cross-examination, he performed approximately 10 to 15 oil changes per day and that oil changes were his primary work functions. There can be significant damage caused to a vehicle’s engine if an oil change is not property done, Mr. Parke and Mr. Daoust testified. The applicant reported to Mr. Parke, the service department’s shop foreman, who reported to Mr. Daoust, the department’s director of service and the most senior management person in the service department. Mr. Daoust has the ability to hire, fire and discipline employees although he does not have any human resources training. At the relevant time, the respondent did not have a human resources person working for it. Mr. Parke had the ability to discipline employees about lower level issues. Mr. Parke shared his office with the tower operators.

9Mr. Amirvar was, at all relevant times, a tower operator. A tower operator is responsible for assigning work orders to the appropriate service technician based upon the nature of the work and the availability of the technician. When a technician had completed a work order, he or she is required to notify the tower operator so that additional work can be assigned to the technician. Mr. Amirvar confirmed in his evidence that he did not have the authority to hire, fire, or discipline employees. Mr. Parke and Mr. Daoust testified that tower operators are not part of management.

10The applicant testified during his examination-in-chief that prior to July 25, 2011, his performance was very good, as told to him by customers, some who called ahead to make sure he was present to service their vehicle, service advisors and a former manager. He testified during his examination-in-chief that prior to July 25, 2011, he had never been disciplined. However, he admitted to receiving disciplinary letters in 2004 and 2005, which were introduced as exhibits. He was asked, and answered, at least six questions during his examination-in-chief where the word “discipline” was used. During his cross-examination, and after at least five questions using the word “discipline” had been used and to which the applicant had responded, the applicant stated that he was not familiar with the term “discipline”, was still learning English, and did not know what the term “discipline” meant.

11The applicant also testified, during his examination-in-chief, that despite performing well, he “got blamed all the time over the years” about incidents which involved himself and/or others when others did work that appeared under his technician number.

12Mr. Morrison testified, during his cross-examination, that he had issued a disciplinary letter to the applicant while he worked for the respondent. He did not recall the reasons why the discipline was issued, but stated that it was serious enough to warrant a letter being issued to the applicant.

13Some years ago, the applicant had surgery for kidney stones. In or around February 15, 2011, the applicant met with his doctor as he was again experiencing pain. The applicant was advised that he had further kidney stones and he was prescribed pain medication which, he testified, he takes up to four times a day. Eventually he will require further surgery. He described the pain that he can experience, which causes him to “crouch down” in pain.

14The applicant testified that he spoke with Mr. Parke about having the pain and Mr. Parke told him to seek medical attention and to drink cranberry juice. Mr. Parke confirmed this during his evidence and said that he was sympathetic to the applicant as he knows others who have gone through this experience. He was aware that the applicant was taking medication for his kidney stones, but did not know the level of the applicant’s pain or discomfort.

15The applicant testified that he also told Mr. Daoust about his kidney stones. The applicant was crunched over at his work station and Mr. Daoust asked him what was wrong. The applicant told him that his kidney stones were killing him to which Mr. Daoust told him “what doesn’t kill you makes you stronger”. A few days before his termination, or the week before he was terminated, either Wednesday, August 3 or Thursday, August 4, the applicant testified, Mr. Daoust told him as they were walking towards the cafeteria that the applicant could go on short term disability benefits and still get paid. The applicant testified that he was going to ask them for short term disability papers on August 8, however, he was terminated before he had the opportunity to do so.

16Mr. Daoust testified in his examination-in-chief that he was aware that the applicant had a problem with his kidneys although he did not know specifically about the kidney stones. It was common knowledge around the shop that the applicant had problems with his kidneys. Mr. Daoust admitted that he has used the expression, “what doesn’t kill you makes you stronger”, however, he did not recall saying that to the applicant. In cross-examination, he testified that he used this expression, which his mother-in-law used to make, as a joke in passing. He did not recall seeing the applicant keeled over and holding his side. He recalled seeing the applicant holding his side, but not keeled over, and the applicant told him he was in a lot of pain. Mr. Daoust did not recall the date of this conversation. During his examination-in-chief, Mr. Daoust testified that he was aware that he applicant took medication for his pain, but he was unsure if he knew this before or after July 25.

17In his cross-examination, Mr. Daoust did not recall having a conversation with the applicant about short term disability benefits. He does not have any human resources training and he did not believe that he would engage in that type of discussion. In response to a question from the Tribunal, Mr. Daoust testified that he did not know whether or not an individual in the applicant’s position had short term disability benefits entitlement. This would be something that he would have to refer to the payroll administrator.

18Mr. Parke and Mr. Daoust testified that the applicant did not seek any accommodation for his kidney condition. The applicant did not testify that he requested any accommodation.

19Mr. Amirvar testified during his cross-examination that the applicant told him on August 5, 2011, that he wanted to leave because of back pain and kidney stones.

20The applicant, Mr. Parke and Mr. Daoust all testified about the applicant’s attendance record. The applicant does not get paid for the days that he does not attend work due to sickness. The applicant confirmed during his cross-examination that he had been absent due to sickness 15 times from January to July 25, 2011, and had either arrived at work late or left work early six times. It was likely leaving work early rather than arriving late, he testified. During his cross-examination he testified that there were a few times that he left work early because there was no work. He was not disciplined for either leaving work early or taking any sick days, prior to July 25, 2011. The days that he took off due to medical appointments were medical appointments for the applicant’s kidney stones. During his examination-in-chief, he testified that he was only paid for the work that he performed and was permitted to leave when there was no work. The attendance record also set out the attendance of other employees within the service department was introduced as an exhibit.

21During its opening submissions, the respondent stated that the applicant’s rate of absences exceeded the second-most absent employee by approximately 100%. Mr. Daoust testified that the applicant had significantly higher absenteeism than his fellow workers. He did not recall the exact number, but the applicant’s absenteeism rate was “double the next guy as far as absenteeism”. After questions from the Tribunal about who the “next guy” was, Mr. Daoust spent some time reviewing the attendance records and stated that the applicant had 15 absences for being sick compared with six absences due to being sick for J.B., K.N., T.R., M.D., and B.L. I have only referred to these employees by their initials as their specific names are not relevant for the issues upon which I am to decide.

22The applicant testified that because of the pain due to his kidney stones, he sometimes had to leave work early. He testified about his understanding of the protocol that was required when he wanted to leave work early due to his pain. During his examination-in-chief he testified that from February 2011 onwards he would always speak with the tower operators when he wanted to leave and sometimes they would ask him to confirm with the shop foreman. Sometimes he would speak with the shop foreman, who would say that it was “ok” provided that it was acceptable for the tower operator. The applicant also testified that the former service manager, Rino, told him, after the applicant approached him about leaving work early one day, that the applicant had to inform both the tower operator and the shop foreman about leaving as they control the work. The applicant testified during his cross-examination that prior to July 25, 2011, he was supposed to find the shop foreman and the tower operator, but that if he could not find the shop foreman he would tell the tower operator.

23On occasions before July 20, when the applicant wanted to leave work early, he would contact Mr. Parke, who authorized his departure. Mr. Parke testified during his cross-examination that he assumed that the applicant’s pain was worse when he asked to leave early.

24Mr. Parke testified during his cross-examination that he has communicated many times during employee meetings that if an employee wants to leave work early, they are to come and see him before leaving. This was a policy that was well known in the shop, although it was not a written policy. It is possible that a technician did not attend one of these meetings.

25Mr. Parke testified that he is available in his office, by cellular telephone, with its number posted outside his office on the bulletin board, by text messaging, or by being paged on the respondent’s paging system. He shares his office with the tower operator.

26On July 25, 2011, upon Mr. Daoust’s request, the applicant, Mr. Parke, and Mr. Daoust had a meeting in Mr. Daoust’s office. The applicant was given three letters, all dated July 25, 2011, and all containing written warnings. As the letters are fairly short, most of their content is reproduced below:

27Letter #1 states:

This letter is a written warning in regards to your work ethic.

On Wednesday, July 20, 2011 you left work without management approval.

This is completely unacceptable. You must obtain management approval before leaving.

As a result I am sending you home today, Monday July 25^th for a day of reflection. Please come and see me before your next shift to discuss the events that lead [sic] to this disciplinary action.

You must improve your work ethic immediately. Failure to do so will lead to further disciplinary action up to and including dismissal.

28Letter #2 states:

This letter is a written warning in regards to your absenteeism.

Subsequent to Wednesday July 20, 2011 when you left work without management approval, you also called in sick on Thursday, July 21 and Friday, July 22.

We require you to provide us with a doctor’s note in regards to these two consecutive sick days, by Wednesday July 27, 2011.

Effective immediately we will require a doctor’s note for any future sick day(s).

Failure to do so will lead to further disciplinary action, up to and including dismissal.

29Letter #3 states:

This letter is a written warning in regards to your quality of work.

On repair order #536107 you replaced an oil filter cover and failed to install the required seal. The customer had to stop at another GM dealership because of a excessive noise from his engine; the problem was diagnosed as lack of oil and further investigation revealed that the leak was due to a missing seal on the filter cover. The cover was replaced and a new seal installed by the other dealer.

This important oil leak also damages the customer garage floor and driveway. We had to send an employee to try to clean these surfaces to no avail and this will now result in the additional expense of fixing both the garage floor and driveway.

These actions aggravated the customer and caused harm to the Roy Foss Service Department’s reputation.

You must improve your quality of work immediately. Failure to do so will lead to further disciplinary action up to and including dismissal.

30The applicant, Mr. Parke, and Mr. Daoust all testified about the July 25 meeting as well as the incidents referenced in the letters. Mr. Daoust testified that the issuance of the letters had nothing to do with the applicant’s kidney condition.

July 20, 2011 – Leaving Work Early

31Earlier on July 20, 2011, the applicant had an exchange with Mr. Daoust about the location of the applicant’s mini-fridge and microwave. The respondent was undergoing significant renovations at the time, including building a new work station that would be visible to customers. The applicant had a mini-fridge and a microwave that Mr. Daoust told him could not be placed in the front and in the view of customers. The applicant said okay and told a coworker, Josh, to temporarily move his personal items into the new lube bay because it was not yet open. Further, the applicant moved his tool box to the front, and Mr. Daoust objected to this too. The applicant spoke with Andrew Dennis about this, and said that he would give two weeks’ notice because he did not feel safe leaving his tools unprotected. Neither Josh nor Mr. Dennis were called as witnesses.

32During his cross-examination, the applicant confirmed that Mr. Daoust told him that he could keep his mini-fridge and microwave, but they could not be on the counter in the service area or visible to customers. He confirmed, during cross-examination, that after that discussion he asked Josh to move the mini-fridge and the microwave into the new work area because it was not yet finished. The microwave was inside one of the cabinets, he stated. The next day he noticed that it had been moved next to the refrigerator that was used by all employees. Josh told him that he moved the items upon Mr. Daoust’s instructions.

33The applicant disagreed, during cross-examination, that he was upset with Mr. Daoust’s instructions and said okay and went back to work. He agreed that he muttered something under his breath and walked away from Mr. Daoust. “What did I say to offend him and I might have been talking to myself”, was his response.

34Mr. Daoust, in his examination-in-chief, testified that the applicant moved his mini-fridge and microwave into the renovated area after Mr. Daoust told him not to. The items were fine if they were not in plain sight of the customer. Mr. Daoust asked one of the technicians to move the applicant’s items out of the area. The tool box also could not be placed in the renovated area in view of the customers. The respondent spent over $150,000 in renovations and it wanted to control how the renovated area looked. “We wanted to give a feel of a formula one garage where everything is spick and span and clean and customers would look at their car while they were working on it”, he said. After the technician moved out the applicant’s belongings, the applicant confronted Mr. Daoust and asked why they had been moved. The applicant was not happy, Mr. Daoust testified, said “some stuff that I couldn’t quite understand” and walked away from Mr. Daoust. Mr. Daoust testified that he presumed that the applicant returned to work, however, he found out that the applicant left work early and without authorization from management. In his cross-examination, Mr. Daoust testified that he assumed that the applicant left work early because of their discussion.

35Later on July 20, 2011, the applicant left work early. He testified that his kidney stone was acting up again, he was in a lot of pain, and denied that he left because of his earlier interaction with Mr. Daoust. A little bit after noon, he spoke with the tower operator, Mr. Amirvar, and told him that he was leaving work. Mr. Amirvar, who was aware of his kidney stone condition, said, “Ya, ok bro” and that, “if you’re in pain you have to go”. The applicant left work.

36In cross-examination, the applicant testified that he went to find the “first person in authority to report to” when he is in pain and that he cannot “run around” looking for the manager or the shop foreman. He went to Mr. Amirvar because he controls the work flow. Mr. Amirvar asked him why he had to leave and the applicant testified that “I gave him a reason”. Mr. Amirvar did not stop him from leaving.

37Mr. Parke testified that the applicant did not contact him on July 20 to either seek his permission to leave or advise that he was leaving work early. Mr. Parke was available and in the office on July 20. He was also available by cellular telephone, his number is posted on the bulletin board outside of his office, by being paged, or text messaged. Mr. Parke did not find out that the applicant had left work until he was told about this by Mr. Amirvar. The applicant had not previously asked Mr. Parke’s permission to leave. Upon being told this, Mr. Parke reported the applicant’s departure to Mr. Daoust.

38Mr. Daoust testified during his cross-examination that Mr. Parke advised him that the applicant had left for the day. Mr. Daoust told Mr. Parke about the conversation they had earlier about the mini-fridge and the microwave and how the applicant left that conversation. Mr. Daoust had his doubts about the reasons why the applicant left work early.

39Mr. Amirvar testified in both examination-in-chief and in cross-examination that on July 20 the applicant came to him, said that he was not feeling well and wanted to leave. In cross-examination, Mr. Amirvar testified that the Response indicating that the applicant had left without notifying Mr. Amirvar was incorrect.

40Mr. Amirvar testified that he told the applicant to get approval from management, meaning Mr. Parke or Mr. Daoust, before leaving. Mr. Amirvar waited approximately 15 minutes, but he did not hear from the applicant. He approached Mr. Daoust first, and then Mr. Parke, to find out if the applicant requested permission to leave because he was not feeling well so that Mr. Amirvar could electronically remove the applicant from the shift so that he would not be assigned any further jobs. Mr. Daoust was on the service floor and Mr. Parke was in his office.

41During his cross-examination, Mr. Amirvar denied the suggestion that he told the applicant that it was “ok” to leave and he would let the foreman know. Mr. Amirvar testified that he was sure that he did not say this because “the way that I do my job, it’s the same routine every day and do it a, b, c, d”. He follows a procedure on how he does his job, he testified, and he knows his limits. He cannot authorize someone to leave and he cannot say that he will let management know.

July 21 and 22, 2011 – Absent from Work

42After going home early on July 20, 2011, the applicant testified that he took a pill. He called in sick on Thursday, July 21 and “took the rest of the week off” because of the pain he was feeling. He rested at home and took more doses of medication than he usually does. When he came back to work, “they” were asking the applicant to provide a doctor’s note. He did not see his doctor for this absence. Every time he sees his doctor, the applicant testified, his doctor tells him the same thing which is to take a painkiller and drink water, which is why he could not provide the respondent with a doctor’s note. During his cross-examination, the applicant testified that he was not surprised by the respondent’s request for medical notes. The applicant did not recall submitting any medical notes for his kidney stones.

43During his cross-examination, the applicant testified that he was not sure whether he called Mr. Parke or Mr. Amirvar on July 21. Upon being told that Mr. Parke would confirm that the applicant called him, the applicant confirmed that he had called Mr. Parke on his work number. Mr. Parke testified that the applicant called him on July 21 and 22 to advise that he was sick. They did not discuss the applicant’s early departure on July 20. Mr. Parke testified during his cross-examination that this issue could be discussed upon the applicant’s return to work in a face-to-face meeting rather than over the telephone.

44Mr. Daoust testified that the reason for issuing the second letter because the applicant did not come to work on either July 21 or 22 as relayed to him by Mr. Parke. Mr. Daoust became aware after the applicant left work early on July 20, from another technician whom he identified during the hearing, that the applicant had a “side line job” in the construction industry that he would go to when there was not enough work with the respondent. This was enough for Mr. Daoust to suspect that there was another reason for the applicant’s absence rather than for medical reasons. He and Mr. Parke reviewed the applicant’s attendance records for the year and realized that the applicant’s absence record was significantly higher than his fellow workers. The applicant’s higher absences along with the new information about the applicant having a second job bought into question the validity of the applicant’s other absences. Before this period, there was no reason to doubt the applicant’s claim that he was sick on days that he reported to be sick, Mr. Daoust testified in cross-examination. However, once he became aware that the applicant had another job, it raised questions about whether the applicant was leaving work early because he was sick or attending the other job.

Oil Filter Job on the Pontiac Vibe

45On July 18, the applicant performed an oil filter job on a Pontiac Vibe. An invoice showing that the work was performed by the applicant was introduced as an exhibit. Problems with the oil filter job were experienced by the vehicle’s driver, including the oil leaking out onto his garage floor and driveway, such that he took the Pontiac Vibe into a dealership in Burlington where it was serviced again. During that service, it was discovered that the oil ring was missing from the oil filter such that the oil was missing. An oil filter cover, AC Delco Professional Oil Filter and an “o-ring” were entered as exhibits.

46Mr. Daoust testified that an oil lube filter job is one of the simplest maintenance jobs there is and a failure to do it properly affects the reputation of the dealership. If the customer cannot trust the dealership to do the oil, “how can they trust you to do their brakes?” he stated. He, Mr. Parke and Mr. Morrison all testified about engine problems that can occur, which are expensive to fix, without having oil in an engine.

47Mr. Daoust testified that the Pontiac Vibe issue came to his attention because the customer telephoned him and complained about the service that he received from the respondent. The customer told him he took the vehicle into another dealership who reported to him that there was no oil in the engine because the oil job that had been conducted by the respondent had not been done properly. The customer’s vehicle had loud sounds coming from the engine and oil spilled onto his garage floor and driveway, causing damage.

48Mr. Daoust called the other dealership and spoke with Mr. Morrison. Mr. Morrison identified the vehicle by vehicle identification number, and told him that the oil seal ring (“the o-ring”) around the oil filter cover had not been installed. Mr. Morrison confirmed this during his evidence. Mr. Daoust then reviewed the respondent’s system to determine who had completed the work on the vehicle and found that it was the applicant.

49After he determined that it was the respondent’s fault, Mr. Daoust testified, he told the customer that the respondent would look after any damage that had been done to his property. Mr. Daoust attended the customer’s home and viewed the damage. A technician was sent to the customer’s property to help clean up the oil spill on the garage floor and the driveway, but this did not remove the stains. Mr. Daoust arranged for a contractor to go to the customer’s property and repair the damage, at a cost of over $1,600, for which the respondent paid.

50Mr. Daoust did not speak with the applicant about this issue until the July 25 meeting.

51The applicant testified that he was always blamed, over the years, for work on which his technician number appeared on the invoice even though others worked on a vehicle. He provided several examples of when this had occurred. He testified that he did the oil work on the Pontiac Vibe and that “maybe” he did make a mistake on it.

52The applicant was cross-examined in detail about o-rings, the fact that they are separate from the oil filter housing unit cover and contain their own written instructions. The applicant said that he has never read the instructions until he was asked to do so during his cross-examination.

The July 25 meeting

53Mr. Parke testified that Mr. Daoust asked him to bring the applicant to his office. During his cross-examination, Mr. Parke testified that he did not recall what information Mr. Daoust told him about the purpose of the meeting, although he knew that letters were going to be issued to the applicant. Mr. Daoust testified that he told Mr. Parke the purpose of the meeting. When it was pointed out that Mr. Parke did not confirm this in his evidence, Mr. Daoust testified that one of them may be wrong and that “memory is not a perfect tool”. Both Mr. Daoust and Mr. Parke testified that they did not take notes of the meeting. Mr. Daoust testified during cross-examination that he imagined that he wrote the letters the morning of July 25. They were written before the meeting and Mr. Daoust had not discussed any of the issues with the applicant prior to the meeting.

54The applicant testified in examination-in-chief that at the beginning of the day, Mr. Parke met him and said that Mr. Daoust would like to meet with him. Mr. Parke accompanied him to Mr. Daoust’s office and stayed during the meeting. Mr. Parke and Mr. Daoust confirmed this in their testimony.

55The applicant testified, at one point, that Mr. Daoust handed him the three letters, and at another point testified that Mr. Daoust put the letters on the table. The applicant read the letters. Mr. Daoust “said a lot of things”, but the applicant was not sure what they spoke about. Mr. Daoust testified that the applicant did not appear to be confused during the meeting and that he did not know how the applicant felt.

56The applicant was confused, he testified, whether he was supposed to return to work on July 25, as Mr. Daoust told him to return to work, or leave for the “day of reflection” as set out in one of the July 25 letters. Mr. Daoust testified that the applicant was sent home.

57During his cross-examination, the applicant confirmed that during the meeting he was told to notify management and the tower operator if he was going to leave work early. The applicant testified, “I believe so, yes”. Mr. Parke and Mr. Daoust both testified that the applicant was told that if he was going to leave work early, he needed to obtain the permission of either Mr. Parke or Mr. Daoust.

58Mr. Daoust testified that during the meeting he and Mr. Parke spoke to the applicant about the Pontiac Vibe oil lube job and the impact that a faulty oil change job has on customer confidence as it is perceived as routine maintenance. The applicant admitted that he had forgotten to put on the o-ring. Both Mr. Daoust and Mr. Parke testified that the applicant did not suggest that the parts he installed were defective. Mr. Parke testified that the applicant mentioned that it could have been a workmanship issue.

59The applicant testified at the meeting he told Mr. Daoust and Mr. Parke that he “might have forgotten” to put the o-ring on the oil gasket. He testified during cross-examination that he was on medication at the time, which caused drowsiness, and he “remembered mentioning that I might have forgotten [to put on the o-ring] because I was on medication”. Upon leaving the meeting, the applicant testified that he spoke with Luciano Rotondo, who was the service advisor for the Pontiac Vibe, who told the applicant that the part for the vehicle was defective. Mr. Rotondo did not testify.

60During the July 25 meeting, the applicant told Mr. Parke and Mr. Daoust that it costs him $25 to obtain a doctor’s note and he asked if the respondent would pay for the doctor’s note or if he would be paid for the day when he obtained a doctor’s note. Mr. Daoust told him that the respondent did not pay staff for the cost of a doctor’s note. Mr. Daoust and Mr. Parke were not asked questions about this.

61During his cross-examination, the applicant did not recall whether Mr. Daoust asked him whether or not he had a second job. Mr. Daoust and Mr. Parke testified that the applicant confirmed that he had a second job, in the construction industry. Mr. Daoust testified that the applicant said that he did not “have a choice” because business was down, he could not wait for work with the respondent, and sometimes had to leave early to go to the other job. The applicant testified that he did have a second job in the construction “after the full time job with the respondent”, but that he had it prior to May 2011. Mr. Daoust testified, in response to being told about the applicant’s evidence that the second job ended in May 2011, that it was still a current position as the applicant said that he had the second position to sustain his needs although the dates of having the second position were not discussed.

62Mr. Daoust testified that during the meeting they discussed the applicant leaving work early without authorization on July 20 and being angry about the mini-fridge and microwave and “where customers count on you every day, we can’t tolerate this type of behaviour”.

63Mr. Parke and Mr. Daoust testified that during the meeting the applicant did not mention anything about having kidney stones or that he had been in pain, or taking medications.

July 26, 2011

64The applicant agreed, during his cross-examination, that he left work on July 25 as a “day of reflection” and returned to work on July 26. He did not think that he met with Mr. Daoust on July 26, denied the suggestion that Mr. Daoust told him he needed to get permission from management and the tower operator before leaving work early, and stated he did not remember that conversation.

65Mr. Daoust testified that they met on July 26 during which time Mr. Daoust told the applicant that if he had to leave, he had to notify Mr. Parke or Mr. Daoust before leaving. Mr. Daoust testified that he was under the impression that the applicant understood this directive.

August 5, 2011 – Leaving Work Early

66On August 5, 2011, the applicant and Mr. Daoust had another discussion about the placement of the applicant’s radio in the renovation area. The applicant testified that the radio was out of the view from the customers and that it could only be seen if one walked into the work area. Mr. Daoust testified that the applicant had placed a “not very nice” radio, an old style boom box, into the same renovated work area where Mr. Daoust had been clear that such items were not to be placed. Mr. Daoust testified that he did not object to the radio, but rather the placement of the radio. The applicant, Mr. Daoust testified, was clearly unhappy with Mr. Daoust’s decision, muttered something under his breath and walked away again from him which was “the ultimate statement”. The applicant agreed that he muttered something under his breath in Mr. Daoust’s presence. Mr. Daoust testified that the applicant did not mention anything about his kidneys or being in pain.

67The applicant testified that he left work early that day because he felt pain. He approached Mr. Amirvar around noon and told him that he was leaving. The applicant then went upstairs to change his clothes. Mr. Amirvar told him that he, Mr. Amirvar, had to make a telephone call to Mr. Daoust to tell him that the applicant was leaving. Mr. Amirvar told him “it’s ok” to which the applicant said, “it’s ok and I don’t have to see him”. Mr. Amirvar responded yes, and the applicant left work.

68Mr. Parke testified that he found out that the applicant left because Mr. Amirvar contacted him. Mr. Parke reported this to Mr. Daoust.

69Mr. Daoust testified that after their discussion about the radio, he assumed that the applicant returned to work. However, the applicant could not be found and in discussion with Mr. Parke they realized that the applicant left work again without authorization from either of them. He and Mr. Parke concluded that the applicant was not a reliable employee and that they had to take action.

70During his cross-examination, Mr. Daoust agreed that he did not recall whether or not Mr. Amirvar had called him to say that he applicant was leaving. “I don’t recall if he did but I would have told him [the applicant] to talk to me personally”. This was not speculation, he stated, “I am certain what would have been the most logical thing to do and we just had a discussion, Mr. Chau and myself, about the radio.” He would not have taken the word of someone over the phone inquiring about this given the recent events. He was aware of the applicant’s kidney condition by this point, but it did not occur to him that the applicant left work due to his medical issue and he did not investigate into the reasons for his departure. His departure on this day was because of the radio discussion, Mr. Daoust asserted.

71Mr. Amirvar testified that the applicant approached him, told him that he was not feeling well and wanted to leave for the day. He did not recall the time, but he recalled that he was in the tower. Mr. Amirvar asked the applicant if he had obtained approval from management, meaning Mr. Parke or Mr. Daoust. When he did not hear back from the applicant after 10 to 15 minutes, so he could remove the applicant from the system, he approached Mr. Daoust in his office and asked if the applicant had been to see him and to tell Mr. Daoust that he was not feeling well. Mr. Daoust had not heard from the applicant. In cross-examination, he stated that he contacted Mr. Parke and asked if the applicant had approached him. He told Mr. Parke that the applicant had said he was not feeling well.

72Mr. Amirvar specifically denied, during his examination-in-chief, that he called Mr. Daoust and asked if the applicant could leave early. It is not his place to get permission from Mr. Daoust, he testified, “I’m not the middle person for the employee who wants to leave early and I’m not the one who makes phone calls for employees”. In cross-examination, he denied that this was said in the presence of Fernando.

73During cross-examination, Mr. Amirvar admitted that the section in the Response indicating that the applicant had not notified him about leaving on August 5 was inaccurate.

August 8, 2011 – Termination

74The applicant testified that upon his return to work on August 8, Mr. Daoust told him that he was terminated. When he was changing his clothes in the change room, another technician, Fernando, asked why he was changing. He told Fernando that he had just been fired because Mr. Daoust told the applicant that he did not ask for permission to leave on August 5. Fernando told the applicant that he was standing beside Mr. Amirvar when Mr. Amirvar called Mr. Daoust to tell him that the applicant was leaving work on August 5. The applicant thought that Fernando could be brought forward as a witness, but then thought that the respondent would just find another way to fire him so he left the respondent’s premises. Fernando did not testify.

75The applicant testified that he felt that he was terminated because of his kidney stones and the pain in which he was in. “I was in pain and on medications and I was following the steps to tell the tower operator to leave early and they fired me for the reason that I was in pain”, he asserted.

76Mr. Daoust testified that he decided to terminate the applicant because of the combination of events relating to the July 25 letters and his early departure on August 5 without authorization from Mr. Parke or himself. Despite speaking to the applicant about being required to seek permission to leave from either Mr. Parke or Mr. Daoust, stressing the importance that as an employee he could not just come and go when he wanted, the applicant’s actions were repeated and he was not a reliable employee. The applicant’s kidney condition had “no role whatsoever” in his decision to terminate the applicant, Mr. Daoust testified.

77He took the weekend to reflect on what had happened, Mr. Daoust testified in cross-examination. This was the second time that the applicant left without authorization and after a written warning had been issued. Mr. Daoust decided that the applicant’s attitude was not going to change and that he was not a reliable employee. “You can’t have an employee who leaves every time they don’t get what they want”. The decision to terminate is ultimately his, he testified, and one that is not made lightly because of the impact that it has upon the employee.

78Mr. Daoust did not speak with the applicant about his early departure on August 5 before he issued the termination letter. He did not see the need to do so given that “we’d been there and tried that”.

79Mr. Parke testified that he believed that Mr. Daoust told him that the applicant was going to be terminated, but did not ask Mr. Parke for his opinion. Mr. Parke did not have any discussions with the applicant before he was terminated.

analysis

80The Supreme Court of Canada has observed, “[a]ssessing credibility is not a science. It is very difficult … to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events,” R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 20.

81In my assessment of the evidence, I have also applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed, which held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

82Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors considered in appraising reliability and credibility, including:

• The internal consistency or inconsistency of evidence;

• The witness’s ability and/or capacity to apprehend and recollect;

• The witness’s opportunity and/or inclination to tailor evidence;

• The witness’s opportunity and/or inclination to embellish evidence;

• The existence of corroborative and/or confirmatory evidence;

• The motives of the witnesses and/or their relationship with the parties;

• The failure to call or produce material evidence.

Shah v. George Brown College, 2009 HRTO 920 at paras. 12-14 (“Shah”); Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.

83Thus, evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. Further, a finding of lack of credibility with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible. An adjudicator may find a witness is not credible on a particular point, but credible on another. A lack of credibility on a collateral matter is a factor to consider, but is not determinative in itself. See Shah at para. 22.

the law

84This Application addresses sections 5(1), 8, and 17 of the Code as well as section 10 and the definition of “disability”.

Onus

85The Supreme Court of Canada confirmed in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”), that the “balance of probabilities” standard of proof applies to all civil cases and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. The Court held that Courts must “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”, at para. 58. A balance of probabilities means that it is more likely than not a violation has occurred or a “50% plus one” probability. See Shah at para. 19.

86The initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that he was discriminated against on the basis of disability. This means that an applicant is required to show that he or she has a characteristic protected from discrimination under the Code; that they experienced an adverse impact in the social ground and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the evidentiary burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. See Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, and Shaw v. Phipps, 2012 ONCA 155 at para. 14.

87I do not find that the applicant was discriminated against by the respondent on the basis of disability, was reprised against within the meaning of the Code, or that the respondent failed in either its procedural or substantive obligations to accommodate the applicant.

88The respondent does not dispute that the applicant has a disability within the meaning of the Code and, from the evidence that I heard about the applicant’s medical condition, I see no reason to differ from the respondent’s acceptance.

89A respondent is required to accommodate an individual, in this case the applicant with a disability, to the point of undue hardship. See section 17 of the Code. The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868. To meet the procedural component of the duty to accommodate, the respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. That involves obtaining all relevant information about the applicant’s situation, at least where it is readily available.

90In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal held that a failure to meet the procedural dimensions of the duty to accommodate – the duty to inquire and assess – is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation. The Tribunal’s decision was confirmed on appeal: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.).

91In this Application, it is clear that the applicant informed Mr. Parke, Mr. Daoust and others about his medical condition pertaining to his kidneys, or kidney stones, and that there was a general awareness about his medical condition prior to July 25, 2011. The applicant did not seek specific accommodation in the workplace due to his medical condition. He was, as he, Mr. Parke and Mr. Daoust testified, up to July 20, permitted to leave work early, provided he obtained authorization, and he took a number of sick days, for which he was not paid, but for which he was not disciplined. However, on July 20 things changed.

92On July 20, the applicant and Mr. Daoust had a discussion about the applicant’s mini-fridge and microwave being placed in newly renovated service area. It was not seriously disputed by the applicant that he disagreed with Mr. Daoust’s decision that such personal items were to be removed from the area as he did not see the need for their removal. It was not disputed that the applicant muttered something under his breath in Mr. Daoust’s presence and walked away from him. The applicant’s response to Mr. Daoust was disrespectful.

93Shortly thereafter, the applicant approached Mr. Amirvar and advised him that he was leaving work early because he was not feeling well. Although it is probable that the applicant wanted to leave because of his earlier interaction with Mr. Daoust, I find that nothing really turns on whether the applicant left because of his conversation with Mr. Daoust or because he was not feeling well. The evidence from the parties is that the applicant left work without advising either Mr. Parke or Mr. Daoust that he was leaving. I accept the respondent’s evidence that that was the concern for it. Whether or not this was contrary to the respondent’s procedure about leaving work early is not significant, in my opinion, as of July 20. It becomes significant after July 25.

94The evidence is consistent that the applicant did not report to work on either July 21 or July 22. The applicant and Mr. Parke testified that the applicant contacted Mr. Parke about these absences and indicated that he was ill.

95However, Mr. Daoust learned that the applicant had left work on July 20 after their interaction and without authorization from either Mr. Parke or himself. Further, he heard from another technician, whom he named during the hearing, that the applicant had a second job in the construction industry, which is why he was leaving work early and calling in sick. Finally, he received a call from an irate customer complaining about an oil filter job that prompted him to investigate into the respondent’s record, where he learned that the applicant’s technician’s number was on the service invoice and he called Mr. Morrison to discuss the problem. I accept Mr. Daoust’s evidence that these issues, rather than the applicant’s medical condition and/or his use of medications, prompted him to issue the three letters dated July 25 to the applicant.

96I can understand the applicant’s surprise and perhaps shock at receiving three letters on July 25. While the applicant had received previous disciplinary letters about his performance, based upon the exhibits dated February 20, 2004, October 1, 2004, and January 25, 2005, those letters are dated many years before the July 25 letters and were not all issued on one day. Mr. Parke himself admitted that three letters in one day “might be a little heavy”, however, it was not his place to judge his boss’s decision.

97I accept the evidence of Mr. Parke and Mr. Daoust, who was not present during Mr. Parke’s evidence and testified after him, that there were discussions during the July 25 meeting about the issues identified in the three letters. While notes of the meeting may have helped the parties recollect what was and was not said during the meeting, the fact that notes were not kept is not determinative of what was said during the meeting. Instead, my findings are based upon the testimony of the witnesses, the documentary evidence introduced as exhibits, the pleadings and the witness statements.

98It is agreed between the parties that the applicant left work early on July 20 and that prior to leaving he notified Mr. Amirvar but not Mr. Parke or Mr. Daoust. Mr. Parke and Mr. Daoust testified that on July 25 the applicant was told that he was required to seek the approval of management, meaning either of them, and tell the tower operator. The applicant “believed” that this was discussed with him. Accordingly, from this date, if there was any confusion about the protocol for leaving, that confusion was clarified during the meeting.

99I do not accept the applicant’s submissions about the difficulties of finding Mr. Parke or Mr. Daoust along with telling the tower operator that he was leaving because he was not feeling well. Those difficulties are hypotheticals, in my view, particularly since the applicant led no evidence about attempting to contact Mr. Parke or Mr. Daoust. The evidence was clear that both are available by cell phone, or could be text messaged or paged if they could not be located in person. Mr. Parke’s office is in the same location as the tower operator’s.

100Mr. Parke and Mr. Daoust testified that the applicant admitted during the July 25 meeting that he had a second job in the construction industry. The applicant did not dispute that he had a second job, but testified, instead, that he had it until May 2011. The specific calendar year was mentioned several times. This is different from para. 10 of the Reply, which indicated that from November 2009 until May 2010 the applicant had a second job assisting one of his friends with home renovations. In this regard, I accept the evidence of Mr. Parke and Mr. Daoust over the evidence of the applicant. Mr. Daoust was clear in his evidence that the applicant still had a second job because, he told them, he needed it to bring in additional money because his earnings with the respondent were not meeting his needs and there was not enough work for him with the respondent. The applicant presented no evidence, apart from his testimony, that he no longer had his second job by May 2011, or, as indicated in the Reply, that it was from November 2009 until May 2010.

101The applicant testified that during the meeting he asked Mr. Parke and Mr. Daoust whether they would pay for his doctor’s note as it would cost him $25 for the note. Mr. Daoust, the applicant testified, told him that the respondent does not pay doctor’s notes for staff. Neither Mr. Parke nor Mr. Daoust were asked questions about this.

102Irrespective of whether the discussion about the payment of doctor’s notes took place, what is clear is that the applicant had a number of absences and early departures by the time of the July 25 meeting. According to the attendance records, which were marked as an exhibit, the applicant had been absent from work due to sickness 15 times by July 25, left work early six times, had a family member ill one time, and taken two days for medical appointments. By contrast, the employee with the second-highest absenteeism record due to sickness, up to July 25, had seven absences; there are four others who had six absences due to sickness up to July 25.

103In light of the information that Mr. Daoust learned about the applicant having a second job, combined with the applicant’s later admission that he did have a second job, up to May 2011 as the applicant testified, or as of July 25 as Mr. Daoust testified, I find that it was reasonable for Mr. Daoust to require to applicant to produce a doctor’s note for days on which he was sick. I accept Mr. Daoust’s evidence that the applicant’s second job, along with his admission that he sometimes left work early to go to the second job, threw into question the validity of the applicant’s absences. I also note that Mr. Daoust did not require the applicant to justify all of his previous absences, apart from the July 21 and 22 dates, nor discipline him for absences before July 20.

104In these circumstances, I do not find that the applicant was discriminated against under the Code by the respondent asking him to produce a doctor’s note for his absences on July 21 and 22. I note that the applicant confirmed during his cross-examination that he was absent on July 27 for a medical appointment, yet still did not produce a medical note for his July 21 and 22 absences.

105Mr. Parke and Mr. Daoust testified that the applicant admitted to them during the July 25 meeting that he may have forgotten to put the o-ring on the oil gasket in the Pontiac Vibe. They confirmed that the applicant did not say that the part was defective. I accept their evidence given the inconsistencies between the allegations in the Application, the Reply, the applicant’s witness statement and his evidence.

106In para. 14 of his Application, which the applicant testified he read and approved, the applicant asserted, “While I acknowledged that I performed the repair work in question, I subsequently discovered from the service advisor Mr. Luciano Rotondo, that the part on which I performed the repair was defective”. In para. 6 of the Reply, it states, “The Applicant denies that he ever admitted that he had not performed his work properly”. In the first bullet point on page 2 of his witness statement, it is written, “… when presented with this warning, the Applicant defended his workmanship; he subsequently discovered that the round rubber seal which generally prevents the leak of oil was itself defective, which likely was the cause of the customer’s leak”. However, during the hearing, the applicant testified that he “may have” told Mr. Parke and Mr. Daoust that he forgot to put the o-ring on the oil casing. After he left the meeting, he testified, he spoke with Mr. Rotondo who said that the part must have been defective. These inconsistencies suggest that the applicant’s evidence is not credible with respect to this issue, or at a minimum, unreliable.

107During his cross-examination the applicant agreed that Mr. Rotondo is a service advisor and not a technician and that he, himself, had not read prior to testifying the written instructions pertaining to the o-ring. In any event, the applicant did not call Mr. Rotondo as a witness to testify as to whether or not the part was defective.

108The evidence is not disputed that the applicant left work on July 25, as indicated in Letter #1, for “a day of reflection”.

109On July 26 I find that it is more probable that not that Mr. Daoust met with the applicant again and in this regard I prefer the evidence of Mr. Daoust over the evidence of the applicant. Mr. Daoust testified that they met and that he conveyed, again, the directive that the applicant was to obtain the permission of either Mr. Parke or Mr. Daoust before leaving work early. The applicant did not recall meeting on July 26 and did not remember Mr. Daoust giving him this direction. Letter #1, however, supports Mr. Daoust’s evidence. In it, it says, “Please come and see me before your next shift to discuss the events that lead [sic] to this disciplinary action”. This supports Mr. Daoust’s evidence that the correct protocol for leaving work early was discussed.

110Even if the discussion on July 26 did not happen, which I find that it did, as set out above, on July 25 the applicant was told that the protocol was to get approval from either Mr. Parke or Mr. Daoust and to notify the tower operator.

111On August 5, the parties agree that the applicant and Mr. Daoust had another discussion about the applicant’s radio being in the renovation area contrary to Mr. Daoust’s instructions. The parties agree that the applicant muttered something under his breath and that he walked away from Mr. Daoust. It does not matter what the applicant actually muttered, but the act of muttering something when he clearly disagreed with Mr. Daoust’s direction and then walking away supports Mr. Daoust’s evidence that the applicant was unhappy with the direction. A short time later, the applicant left work early. Again, it is possible that the applicant left work because of his discussions with Mr. Daoust rather than because he was feeling ill, however, nothing specifically turns on this.

112The parties agree that shortly thereafter the applicant contacted Mr. Amirvar about leaving work early. The applicant testified that Mr. Amirvar told him that he would contact Mr. Daoust for him, did contact Mr. Daoust for him, and told the applicant that Mr. Daoust gave his authorization for the applicant to leave early. The applicant has a very significant self-interest in testifying why he did not follow the early departure protocol that I have found was discussed with him, at a minimum, on July 25 and 26. After considering all of the evidence, I do not find the applicant’s evidence to be credible. Instead, I prefer the evidence of the respondent’s witnesses.

113Mr. Parke and Mr. Daoust testified that the applicant did not contact them on August 5 about leaving work early. The applicant did not testify about any other efforts he made to contact them, which, given the previous discussions about leaving work early, one would have thought he would have seriously attempted. Mr. Amirvar specifically denied the suggestion that he told the applicant that he would call Mr. Daoust, that he called Mr. Daoust, or that he told the applicant that Mr. Daoust said that it was fine to leave. His explanation that he is not the “middle man” is a reasonable one. Mr. Amirvar confirmed that the applicant told him that he was leaving work early.

114Mr. Amirvar’s evidence differed from the Response where, at para. 30, it stated, “He then left work early, without authorization, and without notifying Mr. Amirvar or Mr. Parke of his departure”. Mr. Amirvar testified that this sentence was incorrect. However, Mr. Amirvar’s witness statement, at para. 7, stated, “I am aware that Mr. Chau left his shift early on July 20, 2011 and August 5, 2011. He reported his early departure to me on either of these occasions”.

115However, the applicant’s evidence also is different on this point from his Application and witness statement. In the Application, at para. 18, it was alleged, “On August 5, 2011, I obtained permission from the Tower Operator to leave work which, as noted above, was the normal protocol”. At the fifth bullet point on page 3 of the applicant’s witness statement, it stated:

On August 5, 2011, he again experienced a flare-up of his kidney condition, and as a result had to leave work early; because of the warning he had received on July 25, 2011, he took the additional step of confirming with the Tower Operator, Yashar, that he had permission to leave; Yashar stated to the Applicant, “They said OK”; he only left the workplace after receiving this confirmation.

116The Application suggests that only the tower operator’s permission was required to be obtained. This is inconsistent with the applicant’s own evidence, at least by July 25, as well as the evidence of Mr. Parke and Mr. Daoust. The witness statement indicates Mr. Amirvar said “they said OK” rather than Mr. Daoust giving his permission to leave given that the applicant testified that Mr. Amirvar told him that Mr. Daoust said it was fine to leave. Even the language, “…he took the additional step of confirming with the Tower Operator … that he had permission to leave”, suggests that the applicant had already obtained the permission of either Mr. Parke or Mr. Daoust to leave, which is contrary to the applicant’s own evidence that he had not. These indications, in the face of Mr. Amirvar’s consistent evidence, suggest that the applicant is not credible.

117Despite my finding that the applicant was not credible on this point, the conflict could have been resolved by calling “Fernando” to testify. The applicant had testified that Fernando had witnessed Mr. Amirvar’s conversation with Mr. Daoust. It is the applicant’s burden to prove that he was discriminated against by the respondent and he chose not to call Fernando to testify. Accordingly, I draw an adverse inference against the applicant for his failure to call Fernando as a witness.

118I accept Mr. Daoust’s evidence that as a result of the applicant’s failure to follow the proper reporting protocol for leaving work early, so soon after the July 25 letters were issued to him and despite several discussions on the correct departure protocol, the applicant was dismissed. While the applicant was terminated for just cause and was not offered a severance package by the respondent, about which the applicant testified he was shocked, it is not the role of the Tribunal to comment about the appropriateness of the termination, but rather whether it violated the Code. I cannot find that it did.

119Further, I find that there was no reprisal within the meaning of section 8 of the Code. There was simply no evidence that the applicant asserted any Code rights while he was employed by the respondent, a requisite element in finding reprisal within the meaning of the Code. See Noble v. York University, 2010 HRTO 878 at paras. 3 and 4.

120At the end of the day, and after considering all of the evidence before me, I do not find that the applicant was discriminated against on the basis of disability, reprisal, or that the respondent failed in either its procedural or substantive obligations to accommodate the applicant.

121Accordingly, the Application is dismissed.

Dated at Toronto, this 14^th day of June, 2013.

“Signed by”

__________________________________

Alison Renton

Vice-chair