Solomon Oremade v. Commissionaires Ottawa, 2013 HRTO 181

Human Rights Tribunal of Ontario

B E T W E E N:

Solomon Oremade Applicant

-and-

Commissionaires Ottawa Respondent

DECISION

Adjudicator: Ian R. Mackenzie Date: February 1, 2013 Citation: 2013 HRTO 181 Indexed as: Oremade v. Commissionaries Ottawa

APPEARANCES

Solomon Oremade, Applicant Self-represented

Commissionaires Ottawa, Respondent David Law, Counsel

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination with respect to employment on the basis of race and colour. The applicant self-identifies as black.

SUMMARY OF EVIDENCE

2The respondent provides uniformed security services throughout the National Capital Region (Ottawa and Gatineau) and mail sorting and distribution services to clients at their place of business.

3The applicant commenced employment as a Commissionaire with the respondent in 2007.

4The applicant alleges the following incidents of discrimination:

1. Allegations relating to his interactions with his immediate supervisor, John Fini.
2. Not being permitted to work for four days while his work permit was being processed by Citizenship and Immigration Canada.
3. Discipline (a written reprimand) received after an investigation by the respondent of allegations of harassment.
4. The "segregation" of black employees (including himself) and the lack of access to job postings, memos and post orders for these employees.

5The applicant's employment was subsequently terminated by the respondent after the filing of his Application. The applicant did not raise any allegations under the Code related to his termination of employment.

6Ivan Springer was the section supervisor of the applicant's work site. He self-identified as a black Canadian.

7Mr. Springer testified that the work location of the applicant was a complex with two common areas of cafeterias. There are 68 Commissionaires employed at the work site.

8Mr. Springer testified that the applicant was assigned to the loading dock and mailroom area of the complex. There are two Commissionaires assigned to this area, including the applicant. The two Commissionaires sort and deliver the mail to the tenants in the building. The Commissionaires in this area wear a blue denim-style uniform with a security name tag.

Supervisor John Fini

9The applicant testified that there were three black Commissionaires working at the loading dock. He testified that his immediate supervisor, Mr. Fini, gave one of these employees a "bad look". He also testified that Mr. Fini opened a letter addressed to the applicant and refused to give him a copy of his security clearance. The applicant also stated that after providing a security briefing Mr. Fini said that he “would have to kill him”. The respondent stated that after it became aware of this allegation, Mr. Fini was advised that this was inappropriate language. The applicant stated that Mr. Fini "gave me the finger" and shouted at him on July 26, 2010. He also testified that when he asked about job postings in the mailroom area, he was told by Mr. Fini that they (i.e. the employees in the mailroom and loading dock area) did not need copies of the postings, because they were black.

10The applicant also alleged that three other black employees were removed from the workplace, through the actions of Mr. Fini. The applicant provided no evidence relating to this allegation.

11The applicant testified that he did not file any complaints related to these incidents and did not raise any concerns with Mr. Springer about Mr. Fini.

Work Permit Renewal

12On April 20, 2010, the applicant was sent home by the respondent and was not permitted to work because he did not have a valid work permit and did not provide evidence that an application for the renewal of the work permit was in process. Once the applicant provided proof that a work permit application had been filed with the federal government, the applicant was permitted to return to work.

Harassment and Discipline

13Mr. Springer testified that on August 17, 2010 he was approached by a food services worker who said that a young woman had concerns about "inappropriate actions" but was afraid to raise it with the Commissionaires. Mr. Springer told the worker that she should come and speak to him. The woman came to his office a couple of hours later to see him. She told him that one of the Commissionaires had made "inappropriate advances" and that she did not like it. She told him that the individual was black, bald, worked on the loading dock and his last name began with an "O". Mr. Springer testified that most of the cafeteria workers come into work through the loading dock area. He testified that there was only one individual who matched the description - the applicant.

14Mr. Springer asked her to write down her complaint. He testified that this was his usual practice. She started to write it in his presence. She told him that she was embarrassed and he told her she could take it away and bring it back to him. She brought the written complaint back the following morning (August 18, 2010) and signed it in his presence. He read it while she was in his office. He told her that he would be raising this with headquarters and that someone would contact her. He asked her if she had anything to add and she said she did not.

15After she left, Mr. Springer called Gaby Khoury, the Business Operations Manager (the "BOM") and told him to expect the written complaint. He then sent the complaint letter electronically to Mr. Khoury. Mr. Springer testified that the BOM always dealt with complaints of this nature.

16Mr. Springer was instructed by the BOM to tell the applicant that he was required to go the headquarters for a discussion. Mr. Springer met the applicant outside his office. Mr. Springer told him that he was to go to see Mr. Khoury about a serious allegation. The applicant asked him what it was about. Mr. Springer told him that there were allegations by a female about his behaviour.

17Mr. Springer testified that the applicant stepped around him and headed toward the cafeteria, where the complainant worked. Mr. Springer stood in front of him and told him that the loading dock (and exit) was the other way. Mr. Springer formed the impression that the applicant was intending to confront the woman who had made the complaint. The applicant then left the work site and went to headquarters to meet with Mr. Khoury. Mr. Springer testified that the applicant never returned to the work site after this meeting and he had no further interactions with him.

18Mr. Springer testified that the applicant's race and/or colour was not a factor in any of his dealings with the applicant.

19The applicant stated that the letter of complaint did not refer to him by name. He denied the allegations of harassment. He also alleged that the letter of complaint was a forgery because the respondent had not provided the original of the complaint and because part of the complaint had been prepared when Mr. Springer was absent.

20James Britton is the Employee Relations and Labour Relations Manager for the respondent and has been in that position for five years. He referred to the respondent's code of conduct that sets out expected behaviours, including an anti-harassment provision. He also testified that the disciplinary process was designed to be progressive and usually starts with a verbal or written warning. In accordance with the employer's policy, a formal warning can only be issued by the BOM.

21Mr. Britton testified that the investigation of the harassment complaint was conducted by an investigator on staff (now retired) after the complaint was received. The applicant was interviewed as part of the investigation. The investigation report was then given to Mr. Britton, who prepared a one-page summary for Mr. Khoury and made a recommendation on appropriate discipline. He testified that he recommended that the applicant receive a written warning in accordance with the discipline policy to tell the applicant that his conduct was not appropriate and that it cannot happen again.

22On September 10, 2010, the applicant received a written warning ("formal warning") based on the conclusions reached after the investigation of the harassment complaint. The formal warning stated that the respondent had concluded that harassment had occurred in accordance with the investigator’s findings. The formal warning stated that any further unprofessional conduct "will result in an escalation of disciplinary action, up to and including termination of your employment..." In addition, the applicant was reassigned to a new work site and scheduled to attend "sensitivity" training. The reassignment occurred after the completion of the investigation.

23The applicant refused to sign the formal warning. He did attend the sensitivity training. Mr. Britton testified that there was a complaint resolution process available to any employee who is disciplined. Employees are told about the complaint resolution process in their orientation session. The applicant did not challenge the formal warning through the complaint resolution process.

24On October 20, 2010, the applicant’s lawyer at the time sent a letter to the respondent protesting the applicant’s discipline. Mr. Britton testified that the respondent did not respond to the letter because it was not from an employee. He testified that if the applicant had come to the respondent directly with his concerns set out in the letter, the respondent would have replied.

Segregation/Lack of Access

25The applicant has alleged that job postings and other information was not available in the mailroom or loading dock area. Mr. Britton testified that all job postings are available on the respondent’s intranet and are accessible by all employees. Key information about the work of Commissionaires that may also be in bulletins is also included in pay statements sent to each employee. In addition, all post orders (i.e. orders or rules specific to each post) are kept at the main desk and are accessible to all employees.

26The applicant stated that all of the employees in the mailroom were black. He did not provide any evidence of the race and/or colour of other Commissionaires within the complex. Mr. Springer denied that there was any segregation of employees and described his career progression within the Commissionaire ranks, as a self-identified Black Canadian.

SUBMISSIONS

Supervisor John Fini

27The applicant submitted that his immediate supervisor, John Fini, made rude gestures to him (i.e. giving “the finger”) but did not make these rude gestures to other employees. He also alleged that the respondent had succeeded in removing three black employees from his work location.

28The respondent submitted that there was no evidence that black employees were segregated. The respondent also submitted that all employees had access to relevant information about their duties and to job postings.

Harassment and Discipline

29The applicant submitted that there was no proof that he was the person who allegedly harassed the food services worker. He did not agree with the findings of the investigation report. He submitted that the disciplinary letter was therefore null and void. He stated that the warning letter was a form of reprisal because he was raising issues of segregation in the workplace.

30The respondent submitted that its decision to discipline the applicant was not influenced in any way by the applicant's race and/or colour. The respondent stated that the applicant’s allegations of a conspiracy to frame the applicant were not supported by any evidence. The respondent submitted that there was a thorough investigation of the allegations of harassment and the contention of the applicant that he was not properly identified is not supported by the evidence.

31The respondent submitted that it made its decision to issue a formal warning based on an investigation of the allegations of harassment and on no other basis. It submitted that even if it was wrong to issue such a warning, there was no evidence that its decision was based on prohibited grounds of discrimination, including race and/or colour.

32The respondent submitted that its actions in investigating the complaint of sexual harassment and in issuing a formal warning to the applicant were attributable to the applicant’s actions in making inappropriate sexual advances and the evidence available to the respondent, not his race and/or colour.

33The respondent submitted that the Application should be dismissed.

ANALYSIS AND DECISION

34The Code provides:

5.(1) 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, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

35A prima facie case of discrimination is established if the applicant produces evidence to show that his allegations are true and show discrimination, in the absence of an explanation from the respondent.

36The applicant has made a number of allegations of discrimination based on race and/or colour relating to the following actions of the respondent: the actions of his immediate supervisor John Fini; being sent home pending confirmation of the status of his work permit renewal; the harassment investigation and discipline; and the segregation of black employees and their lack of access to job postings and other information.

37In cases where there is direct evidence before the Tribunal that the applicant’s race and/or colour was a factor in the allegations of discrimination, the applicant bears the legal burden of proving discrimination on a balance of probabilities. Further, a prohibited ground of discrimination need only be one factor in a respondent’s decision or action in order to constitute a violation of the Code.

38In the case of Blakely v. Queen’s University, 2012 HRTO 1177 at para. 48, the Tribunal described the appropriate test in circumstantial evidence cases where, as in the present case, the respondent’s evidence has been heard:

… In my view, in circumstantial evidence cases where the respondent’s evidence has been heard, the test should simply be whether the evidence is sufficient to satisfy the adjudicator that discrimination on the ground alleged is more probable than the explanations provided by the respondent, bearing in mind that the onus of providing discrimination always rests with the applicant and that discrimination need only be one factor in the respondent’s decision.

39Accordingly, in a case like this where I have heard the applicant’s evidence and the evidence of the respondent, the real question that I must determine is whether, considering all the evidence, it is more probable than not that the respondent discriminated against the applicant on the grounds of race and/or colour.

40In coming to any conclusions on the evidence, I must determine whether the evidence of the applicant is credible. In assessing the credibility of the applicant's testimony, I am guided by the test set out in Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354: whether the alleged facts are in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.”

Supervisor John Fini

41The supervisor did not testify and I only have the testimony of the applicant on the alleged incidents. The applicant has alleged that the supervisor made a comment that he "would have to kill him". He also states that his supervisor refused to provide him with a copy of a security clearance. He also alleges that the supervisor made a rude gesture. I have addressed the related allegation that Mr. Fini said he did not need access to job postings in the later section of my reasons on the allegations of segregation.

42The applicant provided no evidence to show that these actions of the supervisor were related in any way to the applicant’s race and/or colour. He asserts that comments and gestures were made only to black employees. In the absence of evidence that these actions of the supervisor were linked to the applicant’s race and/or colour, I am not able to conclude that the actions of Mr. Fini were discriminatory. The applicant did not call other witnesses to testify about the behaviour of Mr. Fini. While Mr. Fini’s actions were rude and inappropriate, the applicant has not established that the behaviour was connected to discrimination on a prohibited ground of discrimination under the Code.

Work Permit Renewal

43The applicant alleged that being sent home until his work permit situation was cleared up was a discriminatory act. The applicant did not provide any particulars or evidence to connect this administrative decision with discrimination on the basis of race and/or colour. He did not establish that he was treated any differently from any other employee without a valid work permit or not in accordance with the respondent’s regular practice. I find that he has not established a prima facie case with regard to this allegation.

Harassment and Discipline

44The applicant maintains that he was not properly identified as the harasser and that there was no basis for concluding that he did engage in harassment. My task is not to determine whether or not the applicant harassed the food services worker. My task is to determine whether or not race and/or colour was a factor in the respondent's investigation of the applicant’s conduct and its decision to discipline the applicant.

45The applicant has alleged that the investigation, finding of harassment and disciplinary letter were discriminatory on the basis of race and/or colour. However, this is a bald allegation not supported by his evidence. He has not established that he was treated any differently than any other employee facing an allegation of harassment. He has not established that he was treated differently than any other employee found to have engaged in harassment. I find that the applicant has not established a prima facie case with regards to these allegations.

Segregation/Lack of Access

46The applicant alleged that black employees were "segregated" to the mailroom and loading dock and did not have access to job postings, memos or post orders. Regarding the applicant’s “segregation” allegation, the applicant testified that his co-workers in the mailroom and loading dock were black. He did not testify about the composition of the workforce at the worksite. He also did not provide any submissions on the fact that his manager, Mr. Springer, self-identified as a Black Canadian. I find that he has not established a prima facie case with regard to this allegation.

47Regarding the applicant’s allegation of access, the job postings, memos and post orders were accessible to all employees either through the intranet, in pay statements or at the main desk. The applicant has not established that there was a link between access to these documents in the mailroom and a prohibited ground of discrimination under the Code.

48In his Application, the applicant stated that his supervisor told him he did not need to have access to job postings, memos and post orders. At the hearing, the applicant testified that his supervisor said that he did not need this access because he was black. As noted, the supervisor did not testify.

49The respondent provided evidence that job postings, memos and post orders were available to all employees through various means. Although this information was not available in hard-copy in the mailroom and loading dock, there is no evidence that it was not made available for any discriminatory reason.

50In his Application, the applicant simply stated that his supervisor said that he did not need access to this information in the mailroom. I find that this version is more credible than the evidence at the hearing. It is clear that the applicant did have access to the job postings, memos and post orders, so it is unlikely that the supervisor said that he did not need access because he was black. In addition, the applicant provided no context for the alleged statement and did not testify about the content of any discussion with his supervisor on the issue of access.

51For these reasons, the Application is dismissed.