Morariu v. St. Mary’s Cement Inc., 2013 HRTO 1628

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexandru Morariu

Applicant

-and-

St. Mary’s Cement Inc. Bowmanville Plant

Respondent

DECISION

Adjudicator: Kathleen Martin

Date: September 27, 2013

Citation: 2013 HRTO 1628

Indexed as: Morariu v. St. Mary’s Cement Inc.

APPEARANCES

Alexandru Morariu, Applicant

Self-represented

St. Mary’s Cement Inc. Bowmanville Plant, Respondent

Stephen C. Bernardo, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of ethnic origin and place of origin. The applicant alleges that when he resigned his employment, he was denied three weeks’ vacation pay because he is from Romania and of Romanian ethnic origin.

2By Case Assessment Direction dated June 12, 2013, the Tribunal directed on its own initiative a summary hearing by teleconference to determine whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that it will succeed. The Tribunal stated that the respondent was not required to file a response.

3On September 23, 2013, a summary hearing was held. At the summary hearing, the applicant and respondent made oral submissions.

BACKGROUND

4The particulars of the applicant’s claim are set out in the Application.

5The applicant states that after working with the respondent for eight years he decided to resign and handed in his resignation. The applicant states given his eight years of employment he was entitled to four weeks’ vacation. However, when he checked with human resources about being paid for the four weeks, he was told that he would be given one week’s vacation pay only. The applicant asked about using his vacation prior to his resignation, but was told that if he did this, his pay would be deducted in the amount of three weeks. The applicant states that another employee who resigned around the same time was permitted to take his full vacation before his resignation. The applicant informed human resources that he felt discriminated against and requested payment for the three weeks. The human resources manager told the applicant that he was not entitled to an additional three weeks’ vacation and that the case with his coworker was “special” without providing a further explanation.

6In the Application, the applicant alleges that this treatment is discriminatory because the only difference between him and the other employee is his place of origin and ethnic origin.

7In the Case Assessment Direction and again at the summary hearing, the applicant was directed to make argument about why the Application should not be dismissed as having no reasonable prospect of success and point to the evidence on which he will prove a link between the respondent’s actions and the grounds cited.

8At the summary hearing, the applicant’s initial submissions were limited to repeating the particulars in the Application with some elaboration. The applicant clarified that the co-worker is “english”. The applicant stated that he does not understand why he was treated differently. The applicant expressed that he would understand if a “reasonable explanation” was offered but he did not get any answer when he asked why the other case was “special”.

9The respondent provided an explanation at the summary hearing. The respondent states that the applicant and the co-worker referenced were both entitled to four weeks’ vacation for 2013. However, the respondent has a long-standing policy that upon termination, employees are paid a prorated portion of their unused vacation time that is earned through to the last day of work. In this case, while the applicant is entitled to four weeks for 2013, since he resigned in March, he was paid one quarter of his entitlement. The respondent states that the applicant was treated in accordance with the policy consistent with all other employees who have resigned in the past (with the exception of the co-worker referenced). The respondent states that this policy is printed and posted and was last revised in 2004.

10With respect to the co-worker, the respondent states that he worked in a different department for a different manager from the applicant. This manager permitted the co-worker to use his vacation prior to his resignation. The respondent states that by the time human resources became aware of this “mistake”, the co-worker had already used three weeks of his vacation and that the respondent chose not to get recompense for the mistake.

11I asked the applicant to specifically respond to the explanation given including the reference to a policy governing the issue. The applicant stated that he was aware of the policy and could not challenge the explanation given. The applicant stated that he did “everything by the book” and that his co-worker got away with four weeks’ vacation. The applicant stated that he still “feels” that he was discriminated against but provided no further submissions of the link between what happened and the grounds relied on.

Decision and Analysis

12Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

13Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

14In this case, the focus is on whether the applicant has evidence or there is evidence that is reasonably available to him that could show a link between the denial of the three additional weeks’ vacation pay and the grounds of ethnic origin and place of origin. As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and that there must be a basis for the allegations beyond mere speculation.

15In this case, the applicant acknowledges there is a policy (a policy described as requiring the prorating of vacation entitlement when one terminates employment). Thus, the applicant was treated in accordance with the policy. In essence, the applicant’s case is based on the claim that one other employee, who has a different ethnic origin or place of origin than him, received a vacation entitlement that is better than that provided under the policy.

16While the applicant was treated differently from this co-worker, I do not find that the applicant has a reasonable prospect of establishing a link between his ethnic origin or place or origin and this differential treatment. Apart from asserting that the preferential treatment of his co-worker was linked to ethnic origin or place of origin, the applicant has not pointed to any other evidence that he has or that would be reasonably available to him to establish the link. In particular, the applicant has not pointed to any comments or other conduct or any other factual details which would support an inference that ethnic origin or place of origin was a consideration in the manner in which he was treated. I find that the applicant’s allegation appears to be based on speculation alone.

17Further, and in any event, the applicant indicated that he could not challenge the explanation given of what occurred with his co-worker. While the applicant stated that he was unaware of whether those who resigned in earlier years were treated in accordance with the policy, neither has he suggested that they were not treated in accordance with the policy.

18Having considered the applicant’s submissions, as well as the facts in the Application, I find that the Application has no reasonable prospect of success.

19The Application is dismissed.