Naresh Somaroo v. P & F Tool and Die, 2013 HRTO 1846

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Naresh Somaroo

Applicant

-and-

P & F Tool and Die, a division of Magna International Inc., and Warren Peters

Respondents

DECISION

Adjudicator: Douglas Sanderson Date: November 1, 2013 Citation: 2013 HRTO 1846 Indexed as: Somaroo v. P & F Tool and Die

APPEARANCES

Naresh Somaroo, Applicant Self-represented

P & F Tool and Die, a division of Magna International Inc., and Warren Peters, Respondents Eric Gresham, 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 disability.

The Application

2The applicant stated that he worked as a crane slinger and die setter for the respondent. The applicant alleged that the respondent terminated his employment a few weeks after returning to work after suffering a workplace accident. The applicant alleged that he was given more difficult work after his return to work and that the respondent cut his hours. The applicant stated that he experienced severe migraines, which caused him to take some sick days and the respondent dismissed him as a result.

The response

3The respondents asserted that the applicant was an employee of Ranstad Canada, a temporary labor agency that supplies workers to the organizational respondent. The applicant performed temporary work beginning in or about February 2011 until his placement ceased on or about September 22, 2011. The applicant's duties included production activities such as spot welding and packing, and he also assisted with die setting in the press shop. The respondent acknowledged that the applicant suffered a workplace injury on or about May 25, 2011, but was cleared to return to work without restrictions within a few days. The respondent stated that the applicant's duties were no different after his return to work and, apart from a few sick days and vacation, the applicant's hours did not change.

4The respondent asserted that the applicant continued working until September 22, 2011. On that day, the applicant was assigned to perform packing duties. The applicant became upset when he received his assignment and announced he was going home. The applicant left the premises without following the appropriate process for leaving work. The individual respondent, the applicant’s manager, later contacted the applicant to have him explain his actions. The applicant stated that he preferred to assist with die setting rather than packing. In light of this conduct, the respondent informed Ranstad to replace the applicant with another worker. The respondents stated that the applicant never advised them that he was suffering from migraines or any other medical condition.

The hearing

5The hearing of this Application took place on April 2, 2013. The applicant testified, as did the individual respondent, and the parties adduced seven documents into evidence, including the respondent’s book of documents, containing 15 tabs.

6Following the completion of the individual respondent's evidence, counsel for the respondents submitted that the Tribunal should dispose of the Application based on the evidence adduced as far, pursuant to the Tribunal's decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.

7The parties agreed to address this issue by written submissions and I indicated that I would set the timetable for the submissions in that Case Assessment Direction. By oversight, this case assessment direction was delayed until May 23, 2013, and set out a timetable as follows:

• The respondents shall deliver to the applicant and file with the Tribunal their written submissions no later than 14 days after the date of this CAD;

• The applicants shall deliver to the respondents and file with the Tribunal his written submissions no later than 14 days after the day on which the respondents delivers and files their written submissions; and,

• The respondents shall deliver to the respondent and file with the Tribunal reply submissions, if any, no later than 14 days after the day on which the applicant delivers and files his written submissions.

8The respondents filed their submissions on June 7, 2013. The applicant did not file any submissions, and the time for doing so is long since passed. Accordingly, it appears that the applicant has abandoned this Application. The applicant concluded his evidence on April 2, 2013 and the individual respondent testified. The individual respondent was the respondent’s primary witness, and, as I read the respondents’ witness statements, the only witness who could give direct evidence regarding the reasons for ending the applicant’s placement, since it was the individual respondent’s decision. In these circumstances, the issue is therefore not whether the Application has a reasonable prospect of success, but whether the applicant proved a violation of the Code on a balance of probabilities on the evidence presented. I find that the Application must be dismissed for the reasons described below.

The evidence

9It was common ground that the applicant was employed by Ranstad and was performing temporary work for the organizational respondent. There is also no dispute that the applicant's work consisted of general labour duties, including loading machines, packing parts and maintaining the cleanliness of work areas. At some point, the applicant also began assisting with die setting. The individual respondent stated that the dies take raw materials and shape them into parts. The dies must be changed and moved, using a crane or forklift, as needed from time to time. When assisting with the die setting the applicant would insert “fingers” (used to pick up parts), bolt down dyes and remove scrap. The applicant also earned a “crane slinger” license, which is one of the qualifications necessary to become a die setter. There was no dispute that the applicant did not achieve all of the qualifications needed to be a die setter. The applicant's evidence was that he enjoyed assisting with die setting and hoped to eventually become a full-time die setter.

10The applicant was injured at work on May 25, 2011, when he attempted to throw a piece of scrap metal into a scrap bin. Unfortunately, the scrap bounced off the bin and hit the applicant in the head. The applicant was taken to hospital and received about 18 stitches. The accident was reported to the Workplace Safety and Insurance Board (“WSIB”). The applicant returned to work on May 31, 2011 and received a WSIB benefits for his lost time.

11The applicant's evidence was that he began to feel sick about two weeks after returning to work and began to experience headaches, which he described as migraines. The applicant stated that he began calling in sick in August and September 2011 and missed between 15 and 20 days of work. The applicant's evidence was that he worked 50 hours per week, plus overtime, prior to his accident at work.

12The applicant agreed, in cross-examination, that he had no restrictions when he returned to work, which was confirmed by a Functional Abilities Form (“FAF”), completed by a physician, which the applicant provided to the organizational respondent. The applicant agreed that he did not provide the respondents with any updated medical documentation indicating he had any restrictions before the end of his placement with the organizational respondent. The applicant further agreed that he did not share any information about a disability with the respondents during his placement. The applicant adduced several documents, dated after the termination of his placement with the organizational respondent, consisting of doctors’ notes referring him for tests and the results of the tests, which indicated no abnormalities. The applicant also tendered the results of a CT scan that, on the face of the document, was printed on January 27, 2010.

13Also in cross-examination, respondents’ counsel reviewed timesheets, recording Ranstad employees’ hours of work with the organizational respondent, from the time the applicant began working in February 2011 to the end of his placement on September 23, 2011. The applicant agreed that the records were accurate (both parties included these records in their documents to be relied upon) and demonstrated that he consistently worked 44 hours per week at his regular rate of pay, plus several hours of overtime each week both before and after his workplace injury. The records indicated that Ranstad employees, including the applicant, worked less than 44 hours in two weeks in July 2011 and the applicant agreed that this reflected lower staffing levels for Ranstad employees. The applicant agreed that the records indicated he was absent due to illness once in late July 2011 and three times in early August. The records indicated that the applicant took a week of vacation in the week of September 4, 2011. The applicant initially stated that he did not take vacation that week, but had been ill. Counsel for the respondent then put to the applicant that he took the week off because his wife was ill and the applicant agreed. The applicant also agreed that he took vacation on Monday, September 11, 2011, again because his wife was ill.

14The applicant testified that that he was consistently assisting with die setting prior to his workplace injury. The applicant's evidence was that following his return to work he continued to assist with die setting for approximately 1½ to 2 weeks after which he began to get more difficult tasks such as general labour, packing and cleaning. However, in cross-examination the applicant stated that he continued to assist with die setting for one or two months after his return to work, and also performed packing. The applicant viewed this as a change in position and indicated in cross-examination that he did not consider himself to be a packer after he began assisting with die setting. The applicant agreed that other Ranstad employees helped with die setting, but not as often as he did. In cross-examination, the applicant testified that approximately 2½ to 3 months after his return to work he began to feel that the organizational respondent did not want him at work anymore because of his disability, noting that he had called in sick a number of times.

15There was no dispute that the applicant left work on September 22, 2011. In cross-examination, the applicant conceded that he was assigned packing work that day and that he found the assignment unfair. He acknowledged that he was upset that another worker was assigned die setting work and he left the workplace. The applicant agreed that he did not inform his manager, the individual respondent, that he was leaving, but did inform his contact at Ranstad. The applicant agreed, again in cross-examination, he spoke to the individual respondent later that day and indicated that he left work because he was not feeling well and because he did not like packing. The applicant acknowledged that he said nothing about feeling unwell in his Reply in response to the respondents’ Response, which indicated that the applicant stated only that he left work because he was unhappy with his job assignment. The applicant did not refer to his departure from work on September 22, 2011 in the Application. The applicant acknowledged that he should not have walked off the job on September 22, 2011 and agreed he was wrong to have done so.

16The individual respondent testified that the applicant provided a FAF when he returned to work, which indicated that the applicant has no restrictions. The individual respondent stated that the applicant never advised that he had any medical restrictions or that he required accommodation. According to the individual respondent, the applicant mentioned having headaches in his first week back to work, but not after that.

17The individual respondent testified that the applicant's work did not change when he returned to work. The individual respondent's evidence was that the applicant’s shift remained the same, he worked the same hours and was assigned the same work assisting with die setting as he had prior to his injury. The individual respondent stated that the applicant raised no concerns about his work following his return to work.

18The individual respondent's evidence was that the applicant's placement came to an end when he walked off the job on September 22, 2011. The applicant had been assigned packing work, as had several other temporary employees, because they were short people due to a breakdown in the press shop. The individual respondent explained that the protocol for someone to leave work is to speak to a supervisor or manager to state why one needs to leave and ask permission. The individual respondent's evidence was at the applicant did not follow this protocol, but merely advised a co-worker.

19The individual respondent testified that the applicant called him, but he had been in a meeting. The individual respondent’s evidence was that he called the applicant later and spoke with him. According to the individual respondent, the applicant stated that he was upset about being assigned packing duties and stated that he deserved to be a die setter. The individual respondent stated that he expressed his concern about the applicant leaving without permission, for which the applicant apologized. The individual respondent testified that he advised the applicant that he was to do work as assigned. According to the individual respondent the applicant said nothing about leaving work because he felt unwell or because he had a headache.

20The individual respondent stated that he was extremely disappointed by the applicant's behaviour. The individual respondent stated that the applicant's unauthorized departure left them shorthanded and could have resulted in a “short parts” situation, where the organizational respondent does not provide enough parts to their customers to maintain production. In the individual respondent's view, the applicant should have stayed at work until they could speak. The individual respondent's evidence was that he considered the situation and decided later that day to end the applicant’s placement. The individual respondent stated that he advised human resources and Ranstad of his decision.

analysis and decision

21The relevant sections of the Code are as follows:

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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

6. (1) In Part I and in this Part,

“disability” means,

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

22The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent discriminated against him on the Code grounds alleged. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.

23Where the parties’ evidence conflicted, I have determined the facts of this case, on a balance of probabilities, based on my assessment of the witnesses’ credibility. In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). At pages 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.

24The applicant provided no evidence of any diagnosis that his workplace injury caused any ongoing medical condition. Rather, he provided some notes referring him for testing, along with the results of the tests, which do not indicate any issue. All but one of these documents postdate the end of his placement with the organizational respondent and the remaining document, the results of the CT scan, was printed on January 27, 2010, and obviously significantly predates the applicant's injury. However, the evidence was that the applicant received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, as amended, regarding his workplace injury; therefore this injury comes within the definition of “disability” under the Code.

25The applicant, however, provided no evidence that his injury was in any way connected to the termination of his placement with the organizational respondent. The applicant returned to work soon after his injury and was able to work without restrictions. Other than mentioning headaches in his first week back to work, there is no evidence the applicant said anything about his injury. The applicant conceded that he did not raise any concerns about a medical condition or request accommodation after he returned to work. The applicant's evidence was that he “felt” the respondents did not want him around because he had taken some sick days. However, the applicant adduced no evidence that his absences were a concern for the respondents. In fact, there was no indication that the respondents had any concerns regarding the applicant before he left the workplace on September 22, 2011. The applicant felt that the respondents mistreated him after his injury because they stopped assigning him to assist with die setting. The applicant clearly formed the impression at some point that he would only be assigned work assisting with die setting. There was absolutely no evidence that he was justified in coming to that conclusion. Even if the applicant performed less die setting helper work after his injury, the applicant provided no evidence that would connect this change in his work to his injury.

26The applicant’s evidence was that part of the reason he left work on September 22, 2011 was that he was ill and that he advised the individual respondent of this when they spoke. The individual respondent denied that the applicant gave illness as a reason for his departure on September 22, 2011 and testified that the applicant stated that he left because his work assignment was not to his liking. I prefer the individual respondent’s evidence on this point. The individual respondent's evidence, that the applicant never said anything about his health during their conversation on September 22, 2011, was consistent with the respondents’ position throughout the litigation of this matter and his description of the events of September 22, 2011 was precise and detailed. The applicant's evidence that he gave illness as a reason for leaving was not consistent with his pleadings and the applicant did not provide a satisfactory explanation for this inconsistency when it was put to him in cross-examination. The applicant did not in fact give any evidence about the events of September 22, 2011 in his evidence in chief and his evidence given in cross-examination was not sufficiently specific or detailed for me to find, on a balance of probabilities, that his account was accurate. The applicant’s evidence suffered from inaccuracy generally. For example, he admitted that his assertion that the respondents cut his hours was incorrect and that he significantly overstated the number of sick days he took, despite having the time sheets in his possession. In his evidence in chief, the applicant stated that he assisted with die setting for one and a half to two weeks after his return to work, but in cross-examination his evidence was that he performed this work for one to two months. Accordingly, I find that the applicant did not inform the individual respondent that he left work because he was ill on September 22, 2011. In any event, even assuming the applicant did cite illness as a reason for leaving work, he did not attribute his illness to his workplace injury. Consequently, I find that the only reason the applicant gave for leaving work on September 22, 2011 was his dissatisfaction with his work assignment, and it is quite understandable that the respondents found this explanation to be unacceptable. I further find and that the applicant’s injury was not a factor in the respondents’ decision to end his work placement.

ORDER

27The Application is dismissed.