HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Roger Thompson
Applicant
-and-
1704275 Ontario Inc. o/a WashDay Laundry Centre and Aitch Turner
Respondents
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Thompson v. 1704275 Ontario Inc.
APPEARANCES
Roger Thompson, Applicant
Self-represented
1704275 Ontario Inc. o/a WashDay Laundry Centre and Aitch Turner, Respondents
David Levangie, Counsel
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 race and colour.
2The hearing in this matter took place on August 31, 2012, during which three witnesses testified and the respondents entered into evidence a brief containing seven documents. Where the parties’ evidence was in conflict, I have set out my findings of fact and my reasons for them which have been made in keeping with the principles for assessing credibility as set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried 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 the 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 (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
Other factors for assessing credibility include the witness’s motives the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
The Application
3The applicant identifies himself as a Canadian born black man of Trinidadian descent. The applicant states that he worked for the respondents as a part-time cleaner from May 12, 2011 until May 19, 2011 when the individual respondent terminated his employment. In the Application, the applicant alleges that he and the individual respondent had a conversation after his first day at work while closing the store. The applicant states that, amongst other things, the individual respondent informed the applicant that he does not usually hire black people because black people expect handouts and have "attitudes that he couldn't deal with". According to the applicant, the individual respondent informed the applicant that he hired the applicant despite his discomfort with black people, as he felt the applicant was different and presented himself well.
4The applicant stated that the respondent created a checklist regarding the duties in the store. The individual respondent would either give the applicant direction as he was performing tasks or wait until after work to provide feedback. According to the applicant, the individual respondent was happy with the applicant's work and allowed him to listen to his iPhone while working.
5On May 19, 2011 with 30 minutes left on the shift, the applicant states that he had completed his checklist and went to his car for a bottle of water. The applicant had the earphone for his iPhone in one of his ears and placed a call to his partner. The individual respondent had followed the applicant outside and informed the applicant that his employment was terminated. According to the applicant, the individual respondent explained that he had no problem with the applicant's work, but could not trust black people in his store. The individual respondent allegedly also advised the applicant that he has "this presence about you that makes my hair on the back of my neck stand up. You have the swagger about you like you don't care – as if you were in the islands". The individual respondent informed the applicant that he would be paid to the end of the shift and did not have to come back. The applicant then challenged the individual respondent about his view of black people and the individual respondent agreed that it was his problem, but it was his place and although the applicant was a hard worker he could not trust black people. The applicant retrieved his jacket from inside the store and discovered his partner was on the line when he put his earpiece back into his ear. The applicant states that she asked him if he was okay and she was on the phone the whole time.
The Response
6The individual respondent identifies himself as a black man who immigrated to Canada from England in 1982. The individual respondent owns and operates the organizational respondent, which is a laundromat located in Whitby. The individual respondent states that he has considerable experience as a manager and employer and is well aware of his obligations as an employer under the Code. The individual respondent denies that he is uncomfortable employing black people or that he made any statement to this effect to the applicant. Rather, the individual respondent states that the applicant did not meet his performance expectations and was resistant to constructive criticism. The individual respondent therefore concluded that the applicant was unsuitable for the position, which included working without supervision.
Evidence
The Applicant’s Evidence
7The applicant testified that he has worked as a community worker for 20 years, providing literacy and youth engagement programs in schools. He described the summer as his "off time", during which he needs to take part-time work. He also provides programs to children privately and working part-time allows him to charge less for his services.
8The applicant's evidence was that he hand delivered his resume to the individual respondent. The individual respondent informed the applicant that he had just hired someone, but would keep the applicant's resume on file. The individual respondent called him a few days later and informed the applicant that the person he hired quit unexpectedly. The individual respondent asked the applicant if he was still interested in the job, which he was.
9The applicant acknowledged that he was an hour late on his first day of work. He explained that he was coming from an appointment in Scarborough and got caught in traffic. He stated that he called the individual respondent and informed him of the situation. According to the applicant, the individual respondent advised him to "get here when you can".
10The applicant arrived and the individual respondent explained the job procedures. The applicant's evidence was that the job was to clean and follow the shift cleaning log. The log was a list of tasks to be completed and the applicant would finish a job, indicate completion on the log and then proceed to the next task. The applicant stated that it appeared to be a good system, as it ensured all tasks were completed, and he found it to be straightforward. The applicant's shift ended at 9 p.m. The applicant testified that after his shift on the first day of work he and the individual respondent spoke for about an hour. He explained to the individual respondent why he had taken the position and they both spoke of their work. The applicant stated that they spoke about their culture and race and about their experiences as black men working in the community.
11The applicant testified that during the next couple of shifts he did his tasks as required under the individual respondent's supervision. The applicant stated that the individual respondent would either stop him to give direction or speak to him at the end of the day, for example if he was spending too much time on a particular task.
12The applicant's evidence regarding his shift on May 19, 2011 was that he finished his tasks early – at about 8:30 p.m. – and went out to his car to get a bottle of water. The applicant called his partner on his iPhone and put one earphone into his ear. Before he could speak to his partner, the individual respondent approached him, outside of the building, and advised the applicant that he needed to speak with him. According to the applicant, the individual respondent proceeded to terminate the applicant's employment, stating it was not working out. The individual respondent explained that the problem was not with the applicant's work, because he had completed his tasks, but the individual respondent was not comfortable having the applicant on the premises. The individual respondent informed the applicant that he felt he could not trust the applicant and it did not sit well with him to leave the applicant alone in the store. The individual respondent stated that he is not used to hiring blacks and he hoped the applicant understood. In the same vein, the individual respondent stated that something about the applicant "makes the hair on the back of my neck stand up" and that the applicant had a presence about him as if he was "on the islands". The individual respondent further noted that in the past he hired Korean and Vietnamese people who are hard-working and trustworthy.
13The applicant testified that he did not say anything at first other than "okay" and the individual respondent walked away. The applicant then told the individual respondent that he could not say what he had said and just walk away. According to the applicant, the individual respondent responded to the effect that he had done precisely that and since it was his store there was nothing more to say. The applicant informed the individual respondent that he could not say that to another black man. The applicant explained that he works with young men to be calm and to deal with situations such as this. The applicant therefore was able to maintain his composure and proceeded to collect his belongings and took off his apron.
14The applicant’s evidence was that he proceeded to his car and heard his partner ask him if he was okay in his earphone. When he got to the car, he took out the earpiece and drove home. The applicant testified that he expected to earn $3,000.00 in employment income over the course of the summer. He started on May 12, 2011 and expected to work until the start of school in September.
15In cross-examination, the applicant testified that he learned of the position with the respondents through the John Howard Society, which he agreed deals with people of all races. The applicant agreed that, since he hand delivered his resume, the individual respondent knew the applicant was black when he hired him. He also agreed that arriving an hour late for his first shift did not make a good first impression. The applicant acknowledged that the expectation was that he would eventually work by himself with full access to the office and any cash that was on site.
16When asked about the conversation he and the individual respondent had at the end of his first shift, he explained that they "got caught just talking". He stated that the individual respondent wanted to get to know him and gave him advice about the job and described how he created a system for cleaning. The applicant again apologized for being late. The individual respondent also spoke about his past. The applicant agreed that he considered the conversation to have been a very positive sign. The applicant describes the "Cleaning Duties Schedule", which is a checklist that sets out the cleaning duties to be performed on each shift throughout the week. He agreed that it is an excellent system that is well organized and streamlined. He denied that he took issue with the system, but agreed that he did ask about it. He denied that he ever gave "push back" regarding the respondents methods or ever decided to do his work "his own way".
17In the Application, the applicant included the following statement in response to question A3 "What were the requirements (essential job duties) of the position?”
Mr. Turner is very particular in how he wants the tasks completed and constantly shows you how to do it “his way”. Although “his way” was not an essential part of the position, Mr. Turner made it clear that this is a system that had worked for the Laundry Centre over the years that he had developed and wanted the taks (sic) completed in the same manner. For example, the lint needed to be removed from the driers in a particular manner.
18The applicant denied the statement indicates that he did not like having to adhere to the individual respondent's cleaning procedures and did not feel he had to follow them. When asked to clarify what he considered to be "not essential" in the respondents’ methods, he gave the example of how the individual respondent wanted lint removed from clothes driers by vacuuming in a particular way, which the applicant did. When he was again asked to explain what he meant by "not essential", the applicant stated that the individual respondent would correct his work because he wanted things done his way and he (the individual respondent) was not going to discuss the matter.
19The applicant agreed that the individual respondent felt he was a difficult employee. He again agreed that the individual respondent would correct him when he did not follow the expected methodology, by either showing him at the time or speaking to him about it later. According to the applicant, the respondent considered his work to be very good, but there were areas in which he could improve. The applicant’s evidence was that he did improve after the first shift and did not require correction after the first shift, as the job was straightforward. The applicant acknowledged that he did not deal with customers while employed by the respondents, but he understood that this would eventually be part of his duties. He explained that he had not yet learned about cash procedures or other duties related to dealing with customers.
20The applicant agreed that he listened to audio books on his iPhone during his third and fourth shifts. He explained that he had only one earpiece in his ear and did not believe listening to audio books in this fashion prevented him from being attentive in his work. He acknowledged that he focused in part on the audio book, but noted that movies were played in the shop. He stated that his audio books were no more distracting than the movie. The applicant denied that the individual respondent ever told him to take off his iPhone and stated that the individual respondent had in fact said that he could listen to his iPhone if it did not interfere with his job.
21Further into his cross-examination, the applicant stated that he was standing outside of the store half an hour before the end of his last shift and placed a call to his partner to say "hi". He did not have time to say hello to her before the individual respondent approached him. His partner said "hello" and he advised her to “hold on a second". He then took the earpiece out of his ear and hung it on his apron. After the individual respondent dismissed him he retrieved his belongings and then went to his car where he put the earpiece from his iPhone back in his ear. His partner was still on the phone and she asked him if he was okay. The applicant advised her that he would see her in a minute.
22Respondent’s counsel noted that the applicant stated in the Application that he informed the individual respondent that "You have issues with blacks and I have given you no reason not to trust me. You are going to have to work on that for yourself. Thanks for the opportunity, you didn’t have to give me a chance, but you did”, but the applicant did not include this in his testimony. When asked if he said this, the applicant indicated that he did not think to write down every detail as he is not a lawyer. Respondent’s counsel also noted that the narrative in the Application indicated that the applicant and the individual respondent shook hands after the individual respondent dismissed him, whereas the applicant's testimony was that they shook hands in the store after he retrieved his belongings. Similarly, respondent’s counsel noted that the Application indicates that the applicant put his earpiece back in his ear in the store and not in the car, as he testified. When asked to explain these discrepancies, the applicant stated that he did not give an exact “play-by-play", but that the content of his evidence was consistent. For example, he was sure that he shook hands with the individual respondent, but could not say exactly where.
23Sarah Shipley is the applicant's partner. She testified that during the evening of May 19, 2011 she received a phone call. She stated that she heard rustling and concluded that the call was a "pocket dial". She did not recall if the applicant said anything to her, but heard talking and therefore did not hang up. Ms. Shipley's evidence was that she heard parts of the conversation and that she heard only two statements clearly. The first statement was someone other than the applicant stating "it's not you; it's me". The second statement was "when you walk past me, the hairs on the back of my neck stand up". Ms. Shipley was unable to make out the balance of the conversation.
24Ms. Shipley stated that, at some point, the applicant came back on the line and she asked him what was going on, as something had clearly happened.
25In cross-examination, Ms. Shipley agreed that the applicant could have produced his phone records showing a call from him to her on May 19, 2011, but did not. Ms. Shipley agreed that she did not recall that the applicant said "hello" when she answered the phone. She did believe that she said "hello" when she answered the call, but did not think that the applicant responded to her. When asked, she confirmed that she did not recall that the applicant told her to "wait a minute" or to "hold on" or words to that affect. Ms. Shipley stated that she likely tried to get the applicant's attention at first, but could hear a conversation and did not want to interrupt. Ms. Shipley stated that she assumed the applicant either was aware he called her and would get back to her after the conversation or the call was an inadvertent "pocket dial" and therefore she did not hang up.
26Ms. Shipley agreed that she never met the individual respondent and did not know the sound of his voice, but was aware that he was from England. She acknowledged however that she could not be certain that the voice she heard was the individual respondent’s. When asked to state exactly what parts of the conversation she heard in order, she stated she first heard someone say "it's not you; it's me", second she believed the applicant said "stop” and, third, someone said that "when you walk past the hairs on the back of my neck stand up". She agreed that nothing she heard made any reference to race. Ms. Shipley stated that the call lasted about 10 minutes, but she stayed on the line because it was unusual for the applicant to call her from work.
27Ms. Shipley's evidence was that the statements she heard did not come at the immediate beginning of the call. She stated that the statement "it's not you; it's me" and the applicant saying "stop" came closer together with the statement about hairs standing up on the neck of the speaker’s neck coming later in the conversation. Ms. Shipley stated that at some point she concluded there was no point staying on the call and hung up. She did not call the applicant back, but stated that he may have called her on the way home.
28Respondent’s counsel advised her that the applicant's testimony was that she had remained on the call the whole time and was on the line when he put his earpiece back in his ear. Ms. Shipley stated that she did not recall this and agreed that she may have hung up. She acknowledged that she was not confident in her evidence regarding the end of the conversation, but did remember three comments during a conversation.
29Respondent’s counsel noted that the Application indicated that she asked the applicant if he was okay at the end of the conversation, not that she hung up without speaking to him. Ms. Shipley stated that she had not reviewed the Application on the day of the hearing and her evidence was what she could remember. Assuming she did speak to the applicant, she stated that she would have known he was on the line because one can hear the earpiece going into the ear.
The Respondent’s Evidence
30Harold Turner is the individual respondent and owner of the organizational respondent. He testified that he was born in England and moved to Canada when he was 20 years old. The individual respondent stated that he worked as a plumber for some time before turning to entrepreneurial pursuits. The individual respondent’s evidence was that he has been involved in and owned several businesses, including a West Indian food business, furniture assembly and property management /ownership.
31The individual respondent opened the organizational respondent in 2007. The individual respondent stated that WashDry provides wash and fold, self-serve laundry and dry cleaning services. The individual respondent stated that the organizational respondent has three employees currently and has had about 50 employees come and go since it opened. The individual respondent stated that he has hired employees from many nationalities over the years, including Asians, blacks and whites. The organizational respondent’s employees currently include a Sri Lankan person and a black person performing the job for which the applicant was hired.
32The individual respondent’s evidence was that he advertised the job vacancy on a free government website and quickly received about 15 job Applications. The applicant attended at the store and offered himself as a candidate. The individual respondent spoke to the applicant briefly and concluded that he would be a good candidate. The individual respondent marked applicant's resume "L2”, which indicates to the individual respondent that the applicant was a good candidate. The individual respondent explained that his practice is to hire the first suitable candidate that presents himself or herself "to be fair". The individual respondent explained that he assesses whether a candidate seems motivated, whether the candidate appears able to do the job (including whether he or she is smart enough to operate a cash register, open and close the store and set the alarm).
33The individual respondent’s evidence was that the position came open again and the applicant was next in line. The individual respondent therefore called the applicant, asked him if he remained interested in the job and advised him of the hours of work. The shifts were Tuesday and Thursday 5 p.m. to close (10 p.m.) and alternate weekends from 3 p.m. to close.
34The applicant's first day of work was May 12, 2011, starting at 5 p.m. The applicant called the individual respondent to inform him that he would be late. The individual respondent advised him to get there when he could and he arrived about one hour late. The individual respondent testified that the applicant apologized for being late and the individual respondent sent him to the back room to put on an apron. It appeared to the individual respondent that the applicant did not want to put on the apron, but he complied with the direction. The individual respondent’s evidence was that he proceeded to direct the applicant regarding his tasks, including filling water jugs, spot sweeping, vacuuming the vents for lint, and removing garbage. The individual respondent stated that his methods may seem overly particular, but they ensure nothing is missed. The individual respondent perceived the applicant to be disappointed to be told how to do menial tasks and did not appreciate it when the individual respondent told him he was taking too long. According to the individual respondent, the applicant seemed agitated and apprehensive to be under close scrutiny, but the individual respondent decided to address issues with the applicant's work "on the go" rather than fixing mistakes later. Eventually, the individual respondent left the applicant to work on his own, but he did not complete over half of his tasks.
35The individual respondent testified that the applicant had missed some things during his first shift. The individual respondent would not have been concerned by this had the applicant shown a sense of urgency, which he did not. Rather, the individual respondent found that the applicant was not focused when working. After the applicant's first shift, the individual respondent and applicant had a conversation, which the individual respondent said was cordial and described as "two brothers chit chatting". The individual respondent’s evidence was that they discussed their lives as black men in the community and the applicant described some of the struggles he faces when counselling. The individual respondent stated that the applicant said that he admired the individual respondent’s success and the individual respondent gave the applicant some advice.
36The individual respondent’s evidence regarding the applicant's second shift was that he told the applicant to go faster and also advised the applicant that he had other duties besides cleaning, including serving customers – a task the individual respondent performed while the applicant learned the job. The individual respondent’s view was the applicant was not going as quickly as the previous shift and was likely to fall behind. The individual respondent stated that apprehension was building because the applicant did not know where things were and still required direction about how to do tasks. The individual respondent testified that the applicant's third shift was the same as the second, i.e., the applicant was not meeting the individual respondent’s expectations, although the applicant said he was "getting it".
37The individual respondent’s evidence was that he observed the applicant with an earpiece in one of his ears while cleaning chairs part way through the second or third shift. The individual respondent stated that he informed the applicant that he could not wear a headset while working. The applicant asked how it interfered with his work. The applicant argued that he was listening to an audio book on low volume, but the individual respondent informed him that it was inappropriate. The individual respondent stated that he considered that listening to an audio book was disrespectful to clients who may need to speak to him. The individual respondent also explained that it was a noisy environment and the applicant needed to hear the door buzzer and phone. According to the individual respondent, the applicant was not happy about removing his earpiece, but he took the earpiece out of his ear.
38The individual respondent described the applicant’s final shift as "more of the same". The individual respondent stated that his wife brought him his supper during the shift, which he ate in their vehicle. He observed the applicant at work from the vehicle and saw no sense of urgency. The applicant was not completing his work in time to do other tasks, such as dealing with clients. The individual respondent came to the conclusion that the applicant was not suited to the work and decided to terminate his employment.
39Towards the end of the shift, the applicant went outside. The individual respondent did not know why the applicant went outside; therefore, he followed him and asked him what he was doing. The applicant advised that he was getting some water from his car. The individual respondent’s testimony was that he said to the applicant that they should "wrap up" his employment and "call it quits". The individual respondent told the applicant that he was not performing to standards and if he could not keep up then the individual respondent would have to find someone who could. The individual respondent stated that the applicant could do the work, but not fast enough. The applicant asked the individual respondent why he came to this decision because he thought he was doing the work. The individual respondent stated that the conversation was not confrontational and, in his view, came as a relief because he had been "on" the applicant all time.
40The individual respondent denied that he dismissed the applicant because he is black and denied that he does not trust black people. The individual respondent stated that he would not have hired the applicant if he felt that way about black people. The individual respondent also denied that he told the applicant that the hair on the back of his neck “stood on end” when the applicant went by and denied that he told the applicant that he has a swagger like he was in the West Indies.
41The individual respondent testified that he had no indication that the applicant was on the phone when he informed the applicant that he was dismissed or when the applicant came into the store after the dismissal. The individual respondent stated that he watched the applicant from a distance while he retrieved his belongings and took off his apron. The individual respondent’s evidence was that they did not shake hands.
42In summary, the individual respondent stated that the reason for dismissing the applicant was his poor attitude and inability to conform to the individual respondent’s methods.
43In cross-examination, the individual respondent denied that he said the applicant was not like other black men during a conversation after the applicant's first shift. The individual respondent stated that he did not go into the reasons for hiring the applicant during the conversation.
44The individual respondent agreed that he had become tired of standing behind the applicant to get him to hurry up while working. He denied, however, that doing so caused confusion, as many new employees learn the job quickly and demonstrate they understand the job. In the individual respondent’s view, two shifts are sufficient for an employee to learn the job. The individual respondent denied that the applicant had completed all his tasks during his final shift and noted, for example, the applicant had not completed mopping.
Argument
The Applicant
45The applicant submitted that he came to speak the truth at the hearing and did so. The applicant submitted that the individual respondent did state that he did not trust black people and that the decision to terminate the applicant's employment was not about his work. The applicant further submitted that the individual respondent did state that the applicant had a swagger about him as if he were in the islands.
46The applicant submitted that both he and the individual respondent have strong personalities, which may have caused them to "butt heads". The applicant submitted that he respects the individual respondent and does not think he is a racist. Rather, the issue may be systemic. In any event, the applicant submitted that the individual respondent dismissed him not because of his work, but because of his views of black people. The applicant relied upon Persaud v. Toronto District School Board, 2009 HRTO 1729, which sets out the principles that apply regarding an allegation of racial discrimination at paragraph 181. The applicant placed emphasis on the principle that discrimination can be proven by circumstantial evidence and inference without direct evidence.
The Respondents
47The respondents agreed that both the applicant and individual respondent have strong personalities and submitted that the dismissal of the applicant was the result of the conflict caused by this, not because the applicant is black.
48The respondents submitted that individual respondent obviously knew the applicant was black when the individual respondent hired him. The respondent submitted that the individual respondent decided to hire the applicant when an employee quit unexpectedly. The position for which the individual respondent hired the applicant would have eventually required him to work unsupervised with access to the cash on site and with unfettered control over the goodwill of the business with respect to customers. In these circumstances, the respondents submitted that there was no reason, if the individual respondent really distrusted black people, to hire the applicant only to fire him four days later because he is black.
49The respondent submitted the evidence supported the respondents’ position that the individual respondent dismissed the applicant because of his work, not his race. The respondent submitted that the evidence was that the applicant was an hour late for his first shift and did not want to wear an apron. The evidence was also that the applicant resisted and did not appreciate the individual respondent's direction regarding the job and was ultimately unable to complete his work quickly enough or to the individual respondent's standards. The applicant listened to his iPhone while working and argued with the individual respondent when he told the applicant that it was an unacceptable practice. Consequently, the individual respondent decided to terminate the applicant's employment early, rather than continue to limp along, hoping for improvement.
50The respondent submitted that Ms. Shipley's evidence was that she overheard three statements made during a conversation between the individual respondent and the applicant in which the applicant was dismissed. The respondent submitted that none of the statements she described contain any element of racism or discrimination. Regardless, the respondent submitted it was not credible that Ms. Shipley received a phone call and stayed on the phone for approximately 10 minutes, during which time all but three comments were inaudible. The respondents submitted that it was hard to accept that those three snippets of conversation were crystal clear, lucid and audible.
51The respondents submitted that Ms. Shipley's evidence that she hung up the call without speaking to the applicant conflicts with the applicant's evidence on this point. The respondents therefore submitted that this conflict calls this Shipley's recollection into question.
52The respondents submitted that, on the other hand, the individual respondent gave his evidence honestly and his evidence was consistent with the limited documentation available and was unshaken in cross-examination.
53The respondent submitted that the applicant has not satisfied the burden of proof in this matter and that the Tribunal should confirm that the respondents dismissed the applicant because of his performance in work-related issues – and possibly personality issues – not because of his race.
Analysis and Decision
54Section 5 of the Code states as follows:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
55The applicant has the initial evidentiary onus of establishing, on a balance of probabilities, a prima facie case that the respondent discriminated against him because of his race or colour. A prima facie case of discrimination “is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent…”. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at paragraph 28.
56The applicant's evidence was that the individual respondent explicitly stated that he terminated the applicant’s employment because he does not trust black people. Thus, unlike in most cases, the applicant presented direct evidence of racial discrimination. This evidence is sufficient to establish a prima facie case of discrimination that calls for a non-discriminatory reason for dismissing the applicant.
57The statements attributed to the individual respondent would clearly amount to discrimination because of race if the applicant proved them on a balance of probabilities. For the reasons that follow, however, I find that the individual respondent was the more credible witness and I prefer his evidence over the applicant’s where their evidence conflicts.
58In the Application, the applicant described two incidents in which the individual respondent allegedly expressed negative views about black people: during the conversation following the applicant's first shift on May 12, 2011 and at the time the individual respondent terminated the applicant’s employment on May 19, 2011. In his testimony, however, the applicant made no mention of any expression of racist views by the individual respondent during their conversation on May 12, 2011. In fact, the applicant's testimony regarding that conversation did not differ materially from the individual respondent's testimony on that subject. This is a significant inconsistency in the context of this case. Again, the applicant alleged in the Application that the individual respondent stated that he does not normally hire black people because he perceives them to have an entitlement mentality and poor attitudes. Such clear and direct evidence of a racist attitude towards black people is remarkable in itself. In my view, it is unlikely that the applicant would have omitted the racist statements attributed to the individual respondent on May 12, 2011 had the individual respondent actually made them. In my view, this significant inconsistency calls the reliability of the applicant’s evidence into question.
59I find that the individual respondent was not satisfied with the applicant's performance. The individual respondent's main concerns regarding the applicant’s work were that he worked too slowly and lacked a sense of urgency. The individual respondent’s evidence was that he expected a new employee to have largely mastered the cleaning duties in two shifts, but the applicant did not. Rather, the individual respondent stated that applicant did not know where things were, was too slow and required reminders on how to perform tasks. The individual respondent perceived the applicant to be irritated by the individual respondent’s scrutiny. This evidence is consistent with the undisputed evidence that the applicant was expected to work without supervision, deal with customers, handle money, etc. and that the applicant never took on these duties. There is no evidence that applicant ever progressed beyond the tasks on the Cleaning Duties Schedule.
60The applicant testified that the individual respondent's system was effective and denied being resistant to the individual respondent's direction. This is not consistent with the applicant’s answer to question A3 in the Application in which he described the individual responded as "very particular" and stated that the individual respondent was constantly showing him how to perform tasks "his way", which was consistent with that applicant’s evidence (and the individual respondent’s) that the individual respondent would correct his work in progress. The applicant also stated in response to question A3 that the individual respondent’s “way” was not an essential part of the job. When asked about this inconsistency in cross-examination, the applicant was evasive and ultimately did not answer the questions directly. The individual respondent’s testimony that the applicant did not appreciate the individual’s directions regarding his work was internally consistent and also consistent with the applicant’s responses to question A3. In his submissions, the applicant allowed that he and the individual respondent have strong personalities and may have butted heads at times. There was no evidence of a significant confrontation between the parties, but I find it likely that the applicant did not appreciate the individual respondent's criticism of his work and displayed this in his body language and by not performing tasks as directed. I find that the individual respondent concluded that the applicant did not show an appropriate attitude towards his work.
61The applicant clearly did disagree with the respondent about listening to his iPhone while working. Both the applicant and the individual responded testified that they discussed whether the applicant could listen to his iPhone while working. There is no dispute that the individual respondent expected work to be performed strictly to his specifications and was not reluctant to make his expectations known. The individual respondent’s evidence was that no one else had ever worked while wearing earphones because the job required employees to be able to hear the door buzzer, the phone and speak with customers. In these circumstances, I find it unlikely that the individual respondent would allow an employee to listen to an iPhone while working or that the applicant would have been able to convince the individual respondent to allow him to do so. I find therefore that the individual respondent directed the applicant to remove his earpiece and the applicant complied, albeit after he expressed his disagreement on this issue. I find that the individual respondent considered the fact that the applicant listened to his iPhone while working and then argued when he was told to remove confirmed that the applicant had a poor attitude towards his work.
62The applicant’s testimony regarding the reasons the individual respondent gave him for terminating his employment on May 19, 2011 was consistent with the description set out in the Application. However, neither the Application nor the applicant's testimony was consistent with Ms. Shipley's testimony. The Application states, as did the applicant in testimony, that Ms. Shipley heard the entire conversation over the phone. Ms. Shipley's evidence was that she heard only three statements. The applicant's evidence was that when he called Ms. Shipley she said "hello" and he told her to "hold on a second". Ms. Shipley's evidence was that she believed she said "hello", but the applicant said nothing to her. The applicant testified that Ms. Shipley remained on the line during the entire time from when he called her to after the applicant was dismissed and returned to his car, at which point she asked him if he was okay. Ms. Shipley's evidence on this point was not consistent. During her evidence in chief, she stated that she stayed on the line and asked the applicant what had happened. In cross- examination Ms. Shipley stated that she eventually saw no point in remaining on the line and hung up without speaking to the applicant. When confronted with the inconsistency between her evidence and the applicant’s, she agreed that she may have hung up and acknowledged that she was unsure of how the call ended.
63When confronted with this inconsistency between her evidence and the applicant’s, Ms. Shipley stated that the applicant may be correct, and if he was, then she would have asked him if he was okay. Ms. Shipley allowed that she did not recall how the telephone call ended, but maintained that she distinctly heard three statements, all of which the applicant stated were made in his Application and testimony. I note that Ms. Shipley’s evidence was initially that she heard only two statements and later in her testimony stated that she heard three. I also note that the timing and sequence of the statements were different in Ms. Shipley's evidence than in the applicant’s. Ms. Shipley stated that the statements she heard did not occur right at the start of the call. The applicant’s evidence was that the individual respondent began speaking to him at about the same time as he placed a call to Ms. Shipley and immediately dismissed the applicant and in so doing stated "it's not you; it's me". Ms. Shipley stated that the statements "it's not you; it's me" and "stop" came closer together and the statement about "hair standing on end" came later in the conversation. The applicant’s evidence was that the individual respondent made the statements "it's not you; it's me" and that the applicant made "the hairs on the back of his neck stand up" as part of the explanation for dismissing applicant. According to the applicant, he told the individual respondent to "stop" after the individual respondent dismissed the applicant and gave his reasons for the decision (which included the other two comments Ms. Shipley heard).
64Accordingly, the applicant’s testimony was inconsistent with Ms. Shipley's in a number of respects and Ms. Shipley’s testimony contained internal inconsistencies, which calls into question the reliability of their evidence. In any event, Ms. Shipley did not hear a statement referring to the applicant’s race. The only evidence that the individual respondent dismissed the applicant because the applicant is black came from the applicant. In light of my concerns regarding the reliability of the applicant’s evidence on this point, and generally, I cannot find that the individual respondent made the statement attributed to him to the effect that he dismissed the applicant because he is black. I have found that the individual respondent was not satisfied with the applicant's performance and attitude. In these circumstances, I find it most likely that the individual respondent terminated the applicant’s employment for this reason and made no mention of the applicant’s race when he explained his decision to the applicant. There is no other evidence connecting the termination of the applicant’s employment to his race and colour.
65The Application is dismissed.
Dated at Toronto, this 30^th^ day of January, 2012.
“signed by”
Douglas Sanderson
Vice-chair