Allen Bernhardt v. Nestle Purina Pet Care, 2013 HRTO 1743

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allen Bernhardt

Applicant

-and-

Nestle Purina Pet Care

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: October 16, 2013

Citation: 2013 HRTO 1743

Indexed as: Bernhardt v. Nestle Purina Pet Care

APPEARANCES

Allen Bernhardt, Applicant

Self-represented

Nestle Purina Pet Care, Respondent

Jodi Gallagher Healy, 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 age and disability.

Background

2The applicant was forklift operator at the respondent’s kitty litter production and packaging plant in Caledonia, Ontario. The applicant alleged that the respondent suspended him from work in February 2012 because he failed to scan pallets of product and also because he was forgetting to swipe his time card before and after each shift and before and after lunch. The applicant stated that he did not believe these allegations and the respondent declined to show proof of them. The applicant stated that these allegations caused him significant stress and he went on a stress leave in March 2012. The applicant returned to work in May 2012. The applicant stated that he received a “Last Chance Letter” on July 10, 2012 because he again forgot to scan pallets. The applicant responded by requesting a transfer to another job, which was ignored. The applicant alleged that the respondent terminated the applicant’s employment because he drove a forklift unsafely on July 30, August 15 and August 21, 2012. The applicant alleged that the respondent did not bring these incidents to his attention when they were purported to have occurred and denied his request to see video proof of them. The applicant alleged that many other forklift drivers drive unsafely, but remain employed by the respondent. The applicant indicated that he was 60 years old at the time of his dismissal.

3The respondent’s position was that it dismissed the applicant for just cause after engaging in a lengthy process of progressive discipline. The respondent identified eight occasions between September 2011 and the termination of the applicant’s employment in September 2012 on which the respondent disciplined the applicant for failing to swipe his time card, failing to scan product (both of which are disciplinable offences in the respondent’s operation) and driving a forklift unsafely. The respondent stated that it suspended the applicant for ten days and gave the applicant a final warning letter on July 10, 2012, rather than dismiss him. The respondent terminated the applicant for just cause on September 4, 2012 after three further safety incidents and five further occasions on which the applicant did not swipe his time card as required.

Summary Hearing

4By Case Assessment Direction (“CAD”) dated May 9, 2013, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success. The Tribunal noted that the Tribunal does not have a general power to deal with allegations of unfairness and that an applicant must be able to show a link between a respondent’s alleged actions and one or more prohibited ground of discrimination. The Tribunal held the summary hearing on July 25, 2013 by teleconference.

Applicant’s Submissions

5The applicant submitted that he does not accept the validity of the incidents the respondent alleged occurred after July 10, 2012, which the respondent relied upon to terminate his employment on September 4, 2012. The applicant submitted that he asked for proof of the infractions, but none was provided. The applicant also submitted that the respondent did not raise these incidents immediately after they purportedly occurred, but allowed them to accumulate for over a month. In the applicant’s view, the reasons given to discipline him and terminate his employment were a pretext. The applicant stated that the respondent made comments to the effect that he was becoming forgetful and spoke to his wife to inquire if he was forgetful at home, which he submitted indicated that the respondent believed there was a problem with his memory. The applicant submitted that the respondent should have sent him to a company doctor to ascertain if his performance issues were related to a medical condition. The applicant also submitted that he was never given the opportunity to transfer to another position and was made to feel as if he was senile.

6The applicant estimated that approximately 80 per cent of the respondent’s workforce was under 45 years of age and that the majority of new hires in the last two years were under 30 years old. The applicant submitted that he raised safety issues regarding younger drivers, but they were allowed to keep their jobs.

Respondent’s Submissions

7The respondent submitted that the Application has no reasonable prospect of success because he has not provided any evidence that he had a disability in the relevant time period and has not provided any evidence linking the respondent’s decision to dismiss the applicant with the applicant’s age or disability. The respondent submitted that the applicant clearly believes that the termination of his employment was unjust, but noted that the Tribunal does not have jurisdiction to address all claims of unfairness or all disputes between parties.

8The respondent acknowledged that one of its Human Resources employees inquired of the applicant’s wife to determine whether he was experiencing difficulties with his memory at home. The respondent submitted, however, that it received no information that indicated that the respondent had a disability related to his memory and the applicant did not ask for accommodation related to a disability. The respondent submitted that, in these circumstances, it had no obligation to put the applicant in another position or to send him to a doctor to determine if he has a medical condition. The respondent also submitted that the applicant committed nine different workplace infractions in the course of a year and was subject to progressive discipline that gave him the opportunity to improve his performance and save his job.

9The respondent disputed the applicant’s assertions about the age composition of its workforce and its hiring practices relative to age, submitting that 45 per cent its total workforce is over 45 years of age and that 46 per cent of the full time employees hired since 2010 are over the age of 45. The respondent submitted that in any event even if the applicant’s assessment was correct the fact that the respondent employed younger employees is not evidence linking the decision to terminate the applicant’s employment to his age. The respondent submitted that other employees found to have breached safety or other work rules were dealt with based on their individual circumstances, including their disciplinary records and the seriousness of the incident.

Analysis and Decision

Reasonable Prospect of Success

10Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

11In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-9:

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.

12The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as disability or family status. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

13At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

14The material before me indicates that one of the issues the respondent had with the applicant’s performance was that he consistently failed to swipe pallets of product and to swipe his time card for which he was disciplined on several occasions. The applicant submitted that the respondent believed he was becoming forgetful, which was demonstrated by its inquiry to his wife, and perceived him to be disabled. The applicant submitted that the respondent should have accommodated the applicant by transferring him to another position and by sending him to a doctor to determine if a medical issue contributed to his performance issues. The jurisprudence indicates that the duty to accommodate imposes duties on each of the parties involved. See: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. The applicant’s primary duty is to identify the need for accommodation and cooperate in the accommodation process. In this case, the applicant neither pointed to any evidence of a disability that interfered with his work performance nor evidence that he requested any sort of accommodation related to a disability. Specifically, the applicant pointed to no evidence that he advised the respondent that his issues with swiping pallets and time cards may have been related to a disability when he received discipline for these issues. There is no dispute that the respondent inquired about the applicant’s memory, but the applicant pointed to no evidence that he or his wife responded to the effect that the applicant may be suffering from a disability affecting his memory. In these circumstances, there is no basis on which to conclude that the applicant’s performance difficulties were related to a disability or that the respondent perceived them to be. Consequently, the respondent was under no obligation to transfer the applicant or to have him examined by a doctor. In my view, the applicant’s allegations relating to disability have no reasonable prospect of success.

15The applicant pointed to evidence that most of the respondent’s workforce was under 45 years old. This evidence, assuming it to be true, does not link the decision to terminate the applicant’s employment to his age. As noted in Lunar v. Canadian Real Estate Investment Trust, 2012 HRTO 28, a simple difference in age is not sufficient to demonstrate age discrimination. The applicant submitted that the respondent did not dismiss younger forklift drivers who committed safety infractions. The applicant did not, however, identify these employees or point to any evidence that the younger drivers in question had a disciplinary record comparable to his. In this regard, I note that the applicant disputes whether he should have been subject to discipline, but did not dispute that he had received the discipline described by the respondent. I would also note that safety infractions are only one part of the applicant’s discipline history. In these circumstances, the evidence is not sufficient to support an inference that the applicant was treated differently than the younger employees. Consequently, I find that the applicant’s allegations regarding age discrimination have no reasonable prospect of success.

16For these reasons, the Application is dismissed.