Hazem Zienelabdeen v. Best Buy Canada Ltd., 2013 HRTO 57

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hazem Zienelabdeen

Applicant

-and-

Best Buy Canada Ltd.

Respondent

DECISION

Adjudicator: Mark Hart

Date: January 11, 2013

Citation: 2013 HRTO 57

Indexed as: Zienelabdeen v. Best Buy Canada Ltd.

APPEARANCES

Hazem Zienelabdeen, Applicant

Larry Hill, Representative

Best Buy Canada Ltd., Respondent

Evan VanDyk, Counsel

1This is an Application dated March 5, 2010 and filed pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in respect of employment because of race, ancestry, place of origin and creed and also alleging reprisal.

2The applicant commenced employment with the respondent company in August 2005 and worked at what was referred to at the hearing as the “Sherway store”. He is Muslim and alleges that he experienced discrimination because of creed due to the respondent’s failure to appropriately accommodate his need to attend prayers on Fridays. He further alleges that his manager, Amyn Kasamali, discriminated against him because of his race, ancestry and place of origin by exercising favouritism towards South Asian employees and adversely treating the applicant as an Egyptian Muslim. The applicant also alleges reprisal on the basis that he raised concerns about favouritism with a Human Resources Manager and experienced adverse treatment after this.

3The hearing in this matter was held on January 26 and 27 and April 17 and 18, 2012. I heard from the following witnesses:

a. The applicant;

b. Katalin Paynton, who was a senior agent in the Operations Department at the Sherway store from 2004 to 2007 and who was involved in scheduling;

c. Amyn Kasamali, who was the Geek Squad Services Manager and the applicant’s direct supervisor at the relevant time;

d. Paula Gilbert, who was formerly the General Manager of the Sherway store and who was subsequently promoted to District Human Resources Manager during the relevant period; and

e. John Metzinger, who was General Manager of the Sherway store at the relevant time.

4At the start of the hearing, I noted that the applicant had raised a significant number of issues in his Application and that it was not always clear to me whether the applicant was alleging a violation of his rights under the Code in relation to every issue raised and if so on what basis. I indicated that, as we proceeded to hear the applicant’s evidence, I would be looking to clarify the issues before me upon which the applicant was asking me to find a violation of his rights under the Code and the basis upon which he is alleging such violation.

5The applicant’s evidence including cross-examination consumed the first two days of hearing. At the commencement of the third hearing day, I outlined for the parties what I understood to be the issues before me for determination based on the materials before me and the applicant’s evidence. I identified these issues as follows:

a. That the applicant alleges that he experienced discrimination because of creed due to the failure to accommodate his religious observance requirements

i. on at least one occasion in late July 2007 when he was scheduled to work on a Friday when he had requested Fridays off,

ii. on three occasions prior to August 24, 2008, when he was scheduled to work on Fridays before 2:30 p.m. when his availability form requested that he not be scheduled on Fridays before 2:30 p.m., and

iii. by being told by Mr. Kasamali sometime before August 24, 2008 to make himself available on Fridays or his supervisory position would be given to someone else;

b. that Mr. Kasamali denied the applicant the opportunity to apply for the Geek Squad Supervisor position because he wanted to give this position to a South Asian employee, which is alleged to be favouritism towards fellow South Asians and discrimination against the applicant as an Egyptian Muslim;

c. that Mr. Kasamali interfered with the applicant’s ability to supervise and discipline the Geek Squad senior employee (who was South Asian) and with the performance evaluations he prepared for Geek Squad employees;

d. that Mr. Kasamali and Mr. Metzinger denied the applicant the ability to transfer to another store because of the applicant’s race, ancestry or place of origin;

e. that Mr. Kasamali and/or Mr. Metzinger unjustifiably applied and administered a 30 day Performance Improvement Plan (“PIP”) in order to terminate the applicant’s employment, and that this was either in reprisal for the applicant contacting Ms. Gilbert about his transfer request or was discrimination because of the applicant’s race, ancestry or place of origin on the basis that Mr. Kasamali was discriminating against the applicant as an Egyptian Muslim and favoured fellow South Asians and/or on the basis that Mr. Metzinger discriminated against non-Whites; and

f. that the respondent company failed to take appropriate steps to respond to the applicant’s allegations of discrimination raised with Ms. Gilbert post-termination.

6I asked the applicant to confirm that these were the alleged violations of the Code that he was raising before me. After consultation with his representative, this was confirmed by the applicant. As a result, in my Decision below, I will address each of these allegations in turn.

7In making my findings, I have been mindful of the fact that the applicant bears the legal burden of proving discrimination on a balance of probabilities, and that 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. Where I have been called upon to assess credibility, I have made this assessment in accordance with the well-established principles articulated in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) at pp. 356-357.

Allegations re scheduling

8The applicant is a practising Muslim and requires time off on Fridays to attend prayers. The applicant’s evidence is that it was a mandatory requirement of his faith for religious observance on Fridays to go to mosque in response to the call for prayer, to attend a speech, and then to say prayers. The applicant testified that his requirement to be off work differed from summer to winter. He testified that in the summer, the call for prayer is around 1:20 pm and that he would have to be at the mosque 30 to 45 minutes before the start of prayer. As result, the applicant testified that he would not be able to arrive at work before 3 pm in the summer. In the winter, the applicant testified that he would be able to arrive at work by 2 pm. While I do not dispute the applicant’s evidence regarding the needs of his faith, I note that the only evidence before me regarding a request for religious accommodation on Fridays was that the applicant not be scheduled before 2:30 pm. I find that, if indeed in the summer the applicant required religious accommodation until 3 pm, there is no evidence before me to indicate that this was ever communicated to his employer.

9The applicant raises three allegations about scheduling. The applicant’s first allegation relates to an occasion when he was scheduled to work on Friday, August 3, 2007 commencing at 1:00 p.m. The applicant’s evidence is that at this time, he had completed an availability form in which he had requested Fridays off. I do not have a document in evidence before me that supports this. However, I did hear from a witness who was involved with scheduling at the relevant time (Ms. Paynton), who recalls that the applicant had requested Fridays off. However, her evidence is that the applicant had indicated that, if this were not possible, he had asked not to be scheduled to work on Fridays before 2:30 p.m. This is consistent with other documentary evidence before me showing that the applicant had requested not to be scheduled on Fridays prior to 2:30 p.m.

10Ms. Paynton’s evidence is challenged by the respondent. In my view, it is not necessary for me to resolve this dispute. The documentary evidence before me indicates that on July 27, 2007, having seen the schedule, the applicant advised that he could not work during the summer time on Friday before 2:30 p.m. and requested that the schedule be changed. The document has a further note indicating that the schedule was in fact changed. In my view, the applicant’s need for religious accommodation was appropriately addressed in this instance. Whether or not the applicant would have preferred to have the entire day on Friday off, the evidence indicates that his actual need for religious accommodation was for him to be able to attend mosque on Fridays in response to the call for prayer, which required him to be absent from work for a set period of time in the middle of the day. The evidence before me indicates that the applicant’s need for religious accommodation ultimately was met in this instance by not scheduling him before 2:30 pm.

11The applicant’s next allegation relates to three occasions in July and August 2008, when he was scheduled to work on Fridays prior to 2:30 p.m. On these occasions, there is no dispute that the applicant had filed an availability form indicating that he did not want to be scheduled on Fridays prior to 2:30 p.m. However, there also is no dispute in the evidence that on each of these occasions, the applicant was permitted by the General Manager of the store to leave work and come back late from his lunch in order to attend prayers. The applicant’s evidence is that on these occasions, he was required to attend a Bosnian Muslim mosque close to the store rather than his own mosque, which deprived him of participating in prayers in his own language. There is no evidence that the applicant raised this particular concern with management at the store. The applicant also states that he was denied the opportunity to spend time with his community following prayers. In this regard, I note that the applicant had indicated his availability as of 2:30 p.m. on Fridays, which also would have prevented him from spending time with his community following prayers.

12In my view, the applicant’s need for religious accommodation was appropriately accommodated on these occasions. He was permitted time off work for religious observance to attend prayers. As stated above, while the applicant’s scheduling preference was to have Fridays off at least until 2:30 pm, his actual need for religious accommodation was to be able to be absent from work to attend mosque on Fridays in response to the call for prayer for a set period of time in the middle of the day. The evidence before me indicates that this need for religious accommodation was granted by the respondent. While the applicant may have preferred to attend mosque in his own language and in his own community, the evidence does not support that he raised this specific aspect of his request for accommodation with the respondent.

13The applicant takes issue with the fact that he was not paid for this time. In the circumstances of this case, it is not a requirement for the employer to pay an employee for time off work for religious observance. The applicant points to another employee, who is Christian, who was allowed to leave a monthly Sunday meeting early in order to attend church, but was paid for the full three hours of the scheduled meeting. However, I accept the respondent’s position that where an employee is called in to work, the Employment Standards Act requires a minimum payment of three hours: see O.Reg. 285/01, s. 5(7). As a result, the distinction between the applicant and this other employee was not based on their creed, but was based upon a statutory requirement which did not apply to the applicant on occasions where he was already scheduled to work.

14Third, the applicant alleges that on August 24, 2008, he was required by his manager, Mr. Kasamali, to sign an availability form making himself open for the full day on Fridays, failing which he would be removed from his supervisory position as Geek Squad Supervisor. The evidence indicates that during the period from August 29 to November 21, 2008, there were nine occasions where the applicant was scheduled to work on a Friday prior to 2:30 p.m. No issue is raised by the applicant regarding any lack of religious accommodation after November 21, 2008. Mr. Kasamali denies that he required the applicant to open up his availability on Fridays.

15While there is no dispute between the parties that the applicant signed an availability form on August 24, 2008 indicating that he was open for the full day on Fridays, I do not accept the applicant’s evidence that he was required by Mr. Kasamali to sign an availability form on August 24, 2008 making himself open for full days on Fridays. The applicant raised issues of alleged discrimination with Human Resources following the termination of his employment on July 2, 2009 and submitted detailed notes and supporting documents, including numerous allegations against Mr. Kasamali, but did not raise any allegation regarding Ms. Kasamali forcing him to sign this availability form. The applicant subsequently retained a lawyer, who wrote a detailed nine page letter setting out the applicant’s allegations of discrimination in violation of the Code, which again did not raise any allegation about Mr. Kasamali requiring him to sign this availability form. Further, the applicant submitted a 17 page document and a four page chronology in support of his Application to this Tribunal, neither of which raised this allegation.

16When questioned about this in cross-examination, the applicant’s response was that he had not recalled this issue at the time and had only recalled it for the first time when giving his evidence at the hearing. When asked why he had not complained at the time to Human Resources about his scheduling, the applicant’s evidence was that he thought he would just wait to see how it worked out.

17I do not find the applicant’s evidence on this point to be credible. He filed very complete and thorough documentation in support of his Application. If an issue of this level of seriousness had in fact occurred as now alleged by the applicant, I would certainly have expected such a significant issue to have been raised at an earlier time. In my view, the applicant’s failure to do so causes me to doubt the credibility of his testimony in this regard. Further, there is no evidence before me to indicate that, on any of these nine occasions following August 24, 2008, the applicant was denied the opportunity to leave work to attend prayers on Fridays.

18Accordingly, for the foregoing reasons, I find that the evidence does not support that the applicant was denied his need for religious accommodation due to scheduling by the respondent.

Allegation re being denied opportunity to apply for the GSS position

19The applicant alleges that Mr. Kasamali denied him the opportunity to apply for the Geek Squad Supervisor (“GSS”) position in early May 2008. The applicant alleges that this was because Mr. Kasamali wanted to give the GSS position to another employee, P.P., who was working as the Geek Squad Senior at the time. This is alleged to be discrimination against the applicant because of his race, ancestry and place of origin as a result of favouritism exercised by Mr. Kasamali towards a fellow South Asian and against the applicant as an Egyptian Muslim.

20Mr. Kasamali is Muslim (although of a different sect than the applicant) and from Pakistan. P.P. is Hindu and from India.

21The main problem with the applicant’s allegation is that there is no actual evidence before me to indicate that Mr. Kasamali either preferred or recommended P.P. for the GSS position. In fact, the evidence is quite to the contrary. The applicant’s evidence is that when he asked Mr. Kasamali whether he could apply for the GSS position, Mr. Kasamali expressed concern about the applicant’s lack of technical knowledge. This is supported by Mr. Kasamali, who states that he was concerned about the applicant’s lack of hands-on experience with computer hardware. Mr. Kasamali’s evidence is that, in response to the applicant’s expression of interest in the GSS position, he also had to dig into what had happened when the applicant previously had held a supervisory position at the store, first as cellular supervisor and then as digital audio supervisor, and the applicant’s subsequent transfer to a non-supervisory position as a business professional. Mr. Kasamali’s evidence is that he found out that the applicant had been stepped down from his supervisory role because of some inter-personal issues with staff and because he had not been successful as a supervisor. This is disputed by the applicant, although there is evidence from Mr. Metzinger, who was General Manager of the store at this time, to support that the applicant was removed from his previous supervisory role due to inter-personal issues with some staff.

22The bottom line, however, is that Mr. Kasamali’s evidence is that he nonetheless made the decision to recommend the applicant for the GSS position, because he decided to give the applicant another chance at a supervisory role. Mr. Kasamali’s evidence is that he did not consider P.P. to be ready to assume a supervisory role. This is supported by the evidence of Mr. Metzinger, who confirmed that Mr. Kasamali had recommended that the applicant be hired for the GSS position and who also testified that P.P. was not considered for this position.

23In the end, the evidence simply does not support the applicant’s allegation that Mr. Kasamali preferred P.P. for the GSS position. While Mr. Kasamali did have some concerns about the applicant assuming this role, the evidence indicates that he nonetheless recommended the applicant for this promotion and that the GSS position was in fact granted to the applicant. There is no evidence to contradict this.

24I also find it telling that, following the applicant’s termination on July 2, 2009, P.P. was not given the GSS role. If Mr. Kasamali in fact had favoured P.P. and wanted him in the GSS role, then this would have been an opportunity for that to happen. But it did not. This further undermines the applicant’s allegation that Mr. Kasamali favoured P.P. and wanted him to assume the GSS role.

25As a result, I find that the applicant’s allegation that Mr. Kasamali discriminated against him by denying him the opportunity to apply for the GSS position due to favouritism towards P.P. is not supported by the evidence.

Allegations re interference with supervisory responsibilities

26The applicant alleges that Mr. Kasamali interfered with his supervisory responsibilities as GSS, particularly in relation to disciplinary issues relating to P.P. and the preparation of performance evaluations. It is alleged that Mr. Kasamali showed favouritism in relation to these actions towards P.P. as a fellow South Asian and against the applicant as an Egyptian Muslim.

27The applicant testified that there were two incidents where P.P. was caught by Loss Prevention staff at the store trying to remove confidential CDs which contained proprietary software owned by the respondent. The allegation is that P.P. intended to use these CDs for his own private business. The applicant’s evidence is that he reported these two incidents to Mr. Kasamali, but no action was taken against P.P. There are no documents before me relating to these alleged incidents. Mr. Kasamali had no recollection of these alleged incidents or of the applicant reporting these incidents to him.

28There was a further incident where it was brought to the applicant’s attention that P.P. had not punched out for his lunch on two occasions in late April and early May 2009. This was documented by records of P.P.’s time card and confirmed by video surveillance. The applicant’s evidence is that he prepared a Performance Counselling Record to discipline P.P. and brought this record to discuss with Mr. Kasamali as his manager. The applicant’s evidence is that he left the specific discipline on the form blank, but verbally expressed his view to Mr. Kasamali that P.P. should be terminated with cause. The applicant states that Mr. Kasamali instead wanted to give P.P. a written warning, which on the form is two steps away from termination for cause (final written warning is the intermediate step).

29There is no dispute that there was a disagreement between the applicant and Mr. Kasamali as to the appropriate discipline to be given to P.P. arising out of this incident. This dispute ultimately was taken up with Mr. Metzinger as the General Manager of the store, who determined that P.P. should be given a final written warning.

30A disciplinary meeting with P.P. was held on May 13, 2009. The applicant’s evidence is that, at this meeting, P.P. started to speak with Mr. Kasamali in a shared language that the applicant did not understand. The applicant states that when he objected to this, he was asked to leave the meeting. Mr. Kasamali does not recall this, and testified generally that he discourages employees from speaking in languages other than English in relation to work issues.

31The evidence indicates that there was workplace tension between the applicant and P.P. This is evident from the applicant’s evidence, and is supported by the evidence of Mr. Kasamali and Mr. Metzinger. Mr. Kasamali attributes this tension to a conflict between the applicant and P.P. in relation to their roles within the Geek Squad. Mr. Kasamali’s evidence is that he wanted P.P. to spend his time dealing with computer hardware and fixing computers, and he wanted the applicant to focus more on selling Geek Squad services to customers. Mr. Kasamali testified that the applicant would become over-involved in fixing computers, which led to conflict with P.P. Mr. Metzinger testified that he was made aware of the tension between the applicant and P.P., and sat in on a counselling meeting involving these two individuals in order to observe this dynamic for himself. Mr. Metzinger’s evidence is that both the applicant and P.P. raised their voices during this meeting, and Mr. Metzinger expressed his view that the applicant had not spoken to P.P. appropriately as his supervisor.

32The issue for me under the Code is whether the applicant’s race, ancestry or place of origin played a role in Mr. Kasamali’s response to the disciplinary issues regarding P.P. In my view, this is not supported by the evidence. Rather, it appears to me that Mr. Kasamali, as the manager, was hearing both sides of this workplace conflict and was endeavouring to balance the applicant’s desire to see P.P. disciplined against P.P. concerns about how he was being supervised by the applicant. This is a common dynamic that plays itself out when a mid-level supervisor, such as the applicant, feels unsupported by his manager in addressing disciplinary issues. Further, while Mr. Kasamali may have spoken to P.P. in a shared language and asked the applicant to leave the meeting, this to me signals only that P.P. wished to have a private conversation with Mr. Kasamali as his manager and does not in and of itself support a finding of racial discrimination against the applicant. While the applicant may have felt unsupported by Mr. Kasamali, in my view there is insufficient evidence to connect this to discrimination in violation of the Code. For me, this conclusion is further supported by the undisputed fact that, not long after the termination of the applicant’s employment, P.P. himself was terminated for cause.

33The applicant also raised an issue about performance evaluations for the Geek Squad members. The applicant’s evidence is that it was his responsibility to complete these forms as the GSS, but that Mr. Kasamali wanted to review them before they were submitted. There is no dispute that Mr. Kasamali changed the evaluation forms in order to increase the rating for P.P. and to lower the rating for another full-time Geek Squad employee. The applicant discovered this at a management meeting where the final evaluation forms were distributed, and raised a concern about Mr. Kasamali’s actions with Mr. Metzinger.

34Mr. Kasamali’s evidence is that, as the performance evaluations were being prepared in November 2008 about five months after the applicant had been given the GSS role, his intention was for the two of them to prepare the evaluations together. Mr. Kasamali was concerned that the evaluations should reflect the entire year of the employees’ performance, and not just the time when the applicant was their supervisor. As the applicant had only been their supervisor for five months, Mr. Kasamali felt that he was in a better position to assess the employees’ performance for the full year.

35In my view, Mr. Kasamali’s evidence provides a credible explanation for his involvement in revising the evaluation forms. While Mr. Kasamali revised P.P.’s evaluation to give him a higher rating, the evidence before me does not support that race, ancestry or place of origin was a factor in this revision, as opposed to Mr. Kasamali’s assessment of P.P.’s performance over the entire year. I further note that the applicant took exception to Mr. Kasamali’s rating of P.P. relative to the other full-time Geek Squad member, where the evidence of both Mr. Kasamali and Mr. Metzinger supports that there were performance issues with this other employee. In addition, Mr. Metzinger’s evidence is that, as General Manager for the store, it was his role to review all employee performance evaluations in the overall context of the store, and expressed his view that Mr. Kasamali’s ratings were lower than they should have been. This resulted in an increase to the rating given to the other full-time Geek Squad member.

36In my view, having carefully considered all of the evidence before me, I find that the evidence does not support that race, ancestry or place of origin was a factor in either Mr. Kasamali’s response to disciplinary issues relating to P.P. or in his involvement in the performance evaluations for Geek Squad employees.

Allegation re denial of transfer to another store

37The applicant states that by April 2009, things had deteriorated at the Sherway store to the extent that he sought a transfer to another store. The applicant states that he first spoke to Mr. Kasamali about this and then raised the issue with Mr. Metzinger. The applicant states that he was denied the ability to transfer. Frustrated by his inability to obtain a transfer, the applicant contacted Ms. Gilbert by phone on April 15, 2009. Ms. Gilbert formerly had been the General Manager at the Sherway store, and she and the applicant had a good work relationship. At the time the applicant called her, Ms. Gilbert had moved into the role of District Human Resources Manager. There is no dispute that Ms. Gilbert told the applicant that he needed to discuss this issue with Mr. Metzinger as the store manager. After speaking with Ms. Gilbert, the applicant once again raised the issue of a transfer with Mr. Metzinger. While the applicant’s evidence is that he was told by Mr. Metzinger that the store to which the applicant wanted to transfer was not a “good store”, the applicant also testified in chief that Mr. Metzinger further told him that he had to address his performance with Mr. Kasamali.

38There is dispute between the parties as to the content of the discussion between the applicant and Ms. Gilbert on April 15, 2009. In his evidence in chief about this telephone conversation, the applicant initially testified that he did not mention anything about discrimination or favouritism to Ms. Gilbert because he was scared to do so. Then, after being prompted by his representative, the applicant altered his testimony to allege that, while he did not use the words “discrimination”, “bias” or “prejudicial treatment”, he did mention favouritism to Ms. Gilbert. This is denied by Ms. Gilbert. In my view, given the inconsistency in the applicant’s evidence on this point, I find that the allegation that he raised the issue of favouritism with Ms. Gilbert on April 15, 2009 is not credible and I place no reliance on the applicant’s evidence in this regard.

39There also is dispute between the parties as to whether the applicant told Ms. Gilbert that he had been advised by his doctor to seek a transfer to another store due to the stress he was experiencing at work. This is denied by Ms. Gilbert. She states that if an issue of stress had been raised, she would have referred the applicant to the respondent’s benefits provider or employee assistance plan. The evidence of both Ms. Gilbert and the applicant is that no such referral was made. There is no dispute that the applicant did not submit any medical documentation in support of his transfer request. Nor is there any medical evidence before me to support that the applicant required a transfer due to stress. In my view, this issue is somewhat of a red herring. No allegation of discrimination because of disability is raised in the Application, nor is there any support in the evidence for such an allegation.

40In addition, while I am aware that the applicant has alleged reprisal in his Application, I find that there is no proper foundation for such a claim arising out of his telephone conversation with Ms. Gilbert on April 15, 2009. In order to amount to reprisal pursuant to s. 8 of the Code in the circumstances before me, there must be evidence to indicate that the applicant sought to claim and enforce his rights under the Code at some point prior to an adverse or retaliatory action being taken against him. As canvassed above, this simply is not supported by the evidence relating to the April 15, 2009 telephone conversation. Further, while the applicant did raise an allegation of racial discrimination and favouritism with Ms. Gilbert in early July 2009, this occurred after his employment already had been terminated. As a result, I find that there is no foundation in the evidence to support any allegation of reprisal in relation to events up to and including the termination of the applicant’s employment.

41With regard to the denial of a transfer to another store, once again the issue for me is whether the applicant’s race, ancestry or place of origin was a factor in denying this request. This allegation simply is not supported by the evidence. Mr. Kasamali’s evidence is that in response to the applicant’s request, he simply told the applicant that he needed to speak with Mr. Metzinger. Mr. Metzinger’s evidence is that he told the applicant that he knew there were concerns about the applicant’s performance and that he was having a tough time, but that transferring to another store would not change anything and the applicant simply would have the same concerns there. This is supported by the applicant’s own evidence that Mr. Metzinger raised performance issues with him when he raised the transfer request once again after speaking with Ms. Gilbert. It also is consistent with the written documentation regarding the applicant’s performance from this period of time, which records ongoing concerns with the applicant’s work performance.

42At the end of the day, the evidence simply does not support that either race, ancestry or place of origin was a factor in the denial of the applicant’s transfer request. Rather, the evidence indicates that the overriding concern was that the applicant first needed to address his performance issues at the Sherway store.

Allegations re Performance Improvement Plan and termination of employment

43On June 4, 2009, the applicant was placed on a 30 day Performance Improvement Plan (“PIP”) at a meeting with Mr. Metzinger and Mr. Kasamali. Mr. Kasamali’s evidence is that he previously had discussed his concerns about the applicant’s performance with Mr. Metzinger and that he was repeatedly raising the same issues with the applicant without seeing improvement. As a result, a decision was made to place the applicant on a PIP. This decision was made in consultation with Mr. Metzinger and Ms. Gilbert. The evidence of Mr. Metzinger and Ms. Gilbert supports that there were performance concerns raised in relation to the applicant and a joint decision made to address these concerns through a PIP.

44The PIP sets out a number of specific concerns, including: poor leadership behaviours, for example taking credit for your team’s work; disrespectful conduct with customers and Geek Squad members; lack of humility in regards to learning new processes and results; and issues with the day to day management of the precinct, including the failure to complete the weekly checklist, to execute the daily task list (“DTL”), to make sure that the Billing Disposition Report (“BDR”) was accurate, and to control amounts owing from the performance service plan (“psp”). The applicant was advised that unless there were significant improvements within 30 days, management would be discussing his suitability for the GSS position and his employment may be terminated.

45The applicant takes strong issue with the performance issues set out in the PIP letter. He points to the numerous letters of recognition he has received from customers (which are in evidence before me) and his abilities in relation to customer relations and sales. His representative also compiled a list of positive comments received about the applicant’s work performance during his tenure with the respondent.

46While I appreciate and have considered that evidence, there also is before me considerable evidence regarding performance issues raised with the applicant over time which support the concerns outlined in the PIP. In these documents, concerns repeatedly are raised about the applicant’s leadership issues, his lack of respect and humility, problems with time management, concerns about communication with subordinates, and conflict management. These concerns not only were echoed in the evidence of Mr. Kasamali and Mr. Metzinger, but also were supported by a report received by Mr. Kasamali from a part-time Geek Squad member (who does not belong to a racial or ethnic group that Mr. Kasamali is alleged to have favoured).

47There also was dispute before me as to whether the applicant was “set up” for termination by the imposition of the PIP, or whether this was a genuine attempt by the respondent to improve the applicant’s performance. I heard evidence from Mr. Metzinger and Ms. Gilbert that 30 day PIPs had been used by the respondent to successfully improve an employee’s performance. Mr. Metzinger’s evidence was that the biggest factor in determining whether a 30 day PIP would be successful was the employee’s response to the plan: if the employee accepted and embraced the plan as an opportunity for positive change, then the employee was likely to be successful; if the employee resisted the plan and believed it was a set up, then the employee was likely to fail.

48It is not my role under the Code to review in general the appropriateness of the imposition of a performance improvement plan on an employee. That is a decision for management which does not necessarily engage the Code. My jurisdiction in this case is restricted to an assessment of whether a discriminatory factor was involved in the decision to impose a PIP on the applicant, and particularly whether this decision was related to the applicant’s race, ancestry or place of origin. This simply is not supported by the evidence.

49The applicant’s allegation, as it emerged through his evidence, is that the PIP was imposed upon him as a result of him having raised the request for transfer with Ms. Gilbert in April 2009 and after he had an issue with Mr. Kasamali regarding the appropriate discipline for P.P. in May 2009. The applicant stated in his testimony that after these events, he suddenly went from being a good employee to become a “disaster employee”.

50There are numerous problems with this allegation. First, the evidence does not support that the applicant suddenly became a “disaster employee” following these events. Rather, the evidence before me indicates that the issues raised in the PIP letter had been consistently raised in various documents relating to the applicant’s performance going back at least to mid-November 2007 and are consistent with the evidence of Mr. Metzinger and Mr. Kasamali regarding the performance issues that had caused the applicant previously to have been moved out of a supervisory role.

51Second, the allegation as it relates to the applicant’s contact with Ms. Gilbert is unconnected to any ground protected under the Code. At its highest, this allegation is that Mr. Metzinger was upset with the applicant for going over his head and speaking to Ms. Gilbert and therefore retaliated against the applicant by putting him on a 30 day PIP. I hasten to say that the allegation that Mr. Metzinger was upset with the applicant for speaking to Ms. Gilbert about a transfer is not supported by any actual evidence, and is pure speculation on the applicant’s part. However, even if a manager was upset with an employee for going over his head, this alone does not support a violation of the Code. There needs to be evidence to link this with a prohibited ground of discrimination (in this case, race, ancestry or place of origin) or to reprisal. No link has been established in the evidence to any prohibited ground of discrimination arising out of the applicant’s contact with Ms. Gilbert, and (as discussed above) there is no foundation to allege reprisal.

52Third, the allegation as it relates to Mr. Kasamali’s response to his dispute with the applicant over the appropriate discipline for P.P. also does not bear scrutiny. I do not accept the applicant’s allegation that Mr. Kasamali exercised favouritism towards P.P. Mr. Kasamali had the opportunity to recommend P.P. for the GSS role when it was first created, but did not do so and instead recommended the applicant for the position even though he had some reservations about the applicant’s technical and supervisory skills. When the applicant’s employment was terminated, P.P. still was not promoted to the GSS role. And then P.P.’s own employment was terminated for cause shortly after the applicant’s employment was terminated.

53Further, the evidence simply does not support an inference that Mr. Kasamali instigated putting the applicant on a 30 day PIP because he bore a grudge towards the applicant arising out of their difference of views over the appropriate discipline for P.P. arising out of P.P.’s failure to clock out for lunch. The documented performance issues with the applicant pre-dated this dispute. And Mr. Kasamali did not make this decision on his own, but the decision was supported by Mr. Metzinger and Ms. Gilbert. This is particularly significant as Mr. Metzinger was the one who supported a higher level of discipline for P.P.

54As a result, I find that the decision to place the applicant on the 30 day PIP was made on the basis of documented performance issues, and the applicant’s race, ancestry and place of origin were not factors in this decision.

55The applicant’s work performance was closely monitored during the 30 day PIP, with weekly documented reviews with Mr. Kasamali. There was detailed documentary evidence before me regarding the weekly reviews of the applicant’s performance during the 30 day PIP period. These weekly reviews indicate that there were ongoing problems with the applicant’s time management and need to prioritize tasks. A repeated theme is that Mr. Kasamali wanted the applicant to be more visible on the sales floor and improve the rate of attachment of Geek Squad services to computer sales. There also were concerns about the applicant’s failure to complete and validate his weekly checklist, and to hold his staff accountable for completing the daily task lists.

56The applicant’s position is that he was not given sufficient support by Mr. Kasamali in achieving his goals during the 30 day PIP period, and that their weekly one on one meetings were abbreviated. With regard to the final weekly review, the applicant’s evidence is that the review was very brief and conducted by Mr. Kasamali in front of other employees. The applicant also testified that the sales targets for the attachment of Geek Squad services were unrealistic.

57It is not the role or jurisdiction of this Tribunal to assess Mr. Kasamali’s management skills or how realistic his expectations for the applicant were. My sole jurisdiction is to assess whether the applicant’s race, ancestry or place of origin was a factor in the assessment of the applicant’s performance during this period. I simply see no evidence of that. Having already found that the applicant’s race, ancestry and place of origin were not factors in the decision to place him on the 30 day PIP, it is difficult for me to understand how the applicant’s race, ancestry or place of origin could become a factor in the assessment of his performance during the 30 day PIP. Such a conclusion is simply not supported by the evidence, particularly in the face of the significant and detailed evidence and documentation showing that the applicant was not meeting expectations.

58The applicant sought to reinforce his allegation that Mr. Kasamali displayed favouritism towards South Asian employees by citing a number of examples. Once again, in my view, these examples do not bear scrutiny and do not support the applicant’s allegation that he personally experienced discrimination from Mr. Kasamali because of his race, ancestry or place of origin.

59The applicant alleges that Mr. Kasamali replaced the former Geek Squad senior with P.P. who is from India. In fact, P.P. was stepped up to be the Geek Squad senior after another employee (L.D.) was experiencing performance issues in the role and had asked to step down.

60The applicant alleges that another employee (K.P.) was hired because her husband is Mr. Kasamali’s best friend and is from India, and was then given all weekends off. The evidence indicates that when K.P. was hired, she provided her availability as being only during week days due to child care responsibilities and her schedule was made out accordingly. The applicant also raised an issue about K.P.’s failure to attend the monthly Sunday morning meetings. Mr. Metzinger states that this became an issue that he discussed with Mr. Kasamali, and the documentation shows that K.P. was in fact scheduled to attend at least three Sunday monthly meetings during the period from November 2007 to May 2008.

61The applicant alleges that Mr. Kasamali hired another employee (R.) who is South Asian. In fact, the evidence before me indicates that R. was transferred from another store at the request of that store’s manager, and the hiring decision was made by Mr. Metzinger. Mr. Kasamali played no role in bringing R. into the Sherway store as an employee.

62Overall, in my view, the evidence is insufficient to establish a pattern of favouritism exercised by Mr. Kasamali towards South Asian employees. In any event, such evidence would only be relevant in this case to the extent that it supported an inference that, as a consequence of alleged favouritism towards South Asian employees, Mr. Kasamali took adverse actions against the applicant because he is Egyptian. Such an inference simply is not supported by the evidence, as there are rational, non-discriminatory explanations for the actions of Mr. Kasamali that form the basis of the applicant’s allegations.

63It also is significant to me that both Mr. Metzinger and Ms. Gilbert were aware of and approved both the placement of the applicant on the 30 day PIP and the termination of his employment. In the course of cross-examination, the applicant alleged for the first time that he believed that Mr. Metzinger racially discriminated against non-White employees. There is simply no evidence before me to support this allegation. Further, no allegation was raised by the applicant that Ms. Gilbert racially discriminated against him. Indeed, the evidence indicates that the applicant and Ms. Gilbert had a good working relationship.

64Overall, in considering all of the evidence before me, I find that there is insufficient evidence to support the applicant’s allegation that race, ancestry or place of origin was a factor either in the decision to place him on the 30 day PIP or the decision to terminate his employment without cause.

Response to discrimination allegations

65The applicant’s employment with the respondent company was terminated on July 2, 2009. While there is some dispute as to precisely when the applicant spoke with Ms. Gilbert, the evidence indicates that at least by July 6, 2009 the applicant had raised allegations of favouritism and racial discrimination by Mr. Kasamali with Ms. Gilbert and had provided her with a handwritten summary of his allegations and supporting documentation.

66Ms. Gilbert’s evidence is that she reviewed the material submitted by the applicant and forwarded it to the company’s legal counsel. She testified that she also discussed the applicant’s allegations with legal counsel and with her District Manager. Her evidence is that, from her own experience with the applicant and the individuals involved and from her own involvement in the decision to place the applicant on the 30 day PIP and to terminate his employment without cause, she believed that the applicant’s claim of discrimination was unsubstantiated when she went through his material. She also testified that, based upon her discussion with legal counsel and her District Manager, all three of them agreed that the applicant’s claim of discrimination was unsubstantiated.

67I am aware of and have considered the Tribunal’s caselaw, which suggests that there is some obligation on an employer to consider claims of discrimination even after an employee’s employment has been terminated: see Dodds v. 2008573 Inc. (Sharks Sports Pub), 2007 HRTO 17; Farris v. Staubach Ontario Inc., 2011 HRTO 979. In Dodds, the applicant called the business partner of the person who had fired her and raised an allegation of discrimination because of pregnancy. The business partner said that he wanted to deal with the situation quietly, but then did not take any steps to address the situation. In these circumstances, it was found that the employer had breached its duty to respond appropriately to an allegation of discrimination. In Farris, it was found that the employer had breached this duty when it failed to reconsider its decision to terminate the applicant’s employment despite being told by the applicant in the termination meeting about her allegations of sexual harassment and that she had filed a complaint with the Ontario Human Rights Commission.

68I also am mindful of this Tribunal’s caselaw indicating that an employer can attract liability for its failure to appropriately respond to a complaint of discrimination notwithstanding that a violation of the Code is not made out at a hearing: see Nelson v. Lakehead University, 2008 HRTO 41.

69However, in my view, the circumstances of this case are distinguishable from the situations in Dodds and Farris. In Dodds, the employer simply ignored the applicant’s claim and did not take any steps to consider or address her allegations. In Farris, the applicant’s allegations were raised at the time of the termination meeting and were simply disregarded by the employer. In contrast, in the instant case, the evidence before me indicates that Ms. Gilbert as the District Human Resources Manager was open to receiving and reviewing the materials submitted by the applicant, forwarded them to legal counsel, and discussed his allegations with legal counsel and her District Manager. Unlike in Dodds and Farris, the applicant’s concerns were not simply ignored or disregarded. On the basis of this evidence, it is my view that there is an insufficient basis to support a finding that the respondent breached its duty to respond appropriately to the applicant’s allegations of discrimination made after his employment had been terminated.

Other issues

70Before concluding this Decision, I wish briefly to address a number of other issues that arose during the course of this proceeding.

71In advance of the hearing, the applicant submitted a list of proposed witnesses but failed to provide a summary of their expected evidence as required by the Tribunal’s Rules. The respondent objected to the calling of these witnesses on this basis. Upon receipt and review of the applicant’s list of proposed witnesses and the respondent’s objection, I issued a Case Assessment Direction (“CAD”) indicating that the applicant had not complied with the Tribunal’s Rules by failing to provide a sufficient description of his proposed witness’ expected evidence or any details or specifics regarding what their proposed testimony would be. I directed that, if the applicant intended to call these individuals as witnesses at the hearing in this matter, the applicant was to provide to respondent counsel and file with the Tribunal a description of their expected evidence which set out the specific evidence it was proposed that these witnesses would provide and how it was relevant to the applicant’s allegations of discrimination. This was to be done within seven calendar days of the date of my CAD.

72In response to this direction, the applicant indicated his intention to call only one witness (Ms. Paynton) in support of his allegations and provided a more detailed statement of her expected testimony. The applicant did not seek to call any other witnesses to support his allegations.

73At the end of the first day of hearing, I heard submissions from the parties regarding the proposed evidence of Ms. Paynton as the one witness sought to be called by the applicant. She is a White woman who alleges that she experienced racial discrimination by the respondent company, due to the actions of her supervisor and another colleague who are Black. I held that this proposed evidence was inadmissible similar fact evidence, as her allegations of discrimination were entirely different than the applicant’s and did not relate to Mr. Kasamali and his alleged favouritism towards South Asian employees. The applicant also proposed to have this witness testify that as of July 2007, he had requested to have Fridays off for religious observance. At that time, the applicant already had testified to this point and I did not consider it to be a material fact in issue between the parties. When it subsequently became clear that this was a material fact in issue, I allowed Ms. Paynton to testify by teleconference on this point.

74At the start of the hearing, the applicant’s representative requested an order excluding witnesses, which was granted. However, an exception was made for Mr. Metzinger, who was acting as the company’s representative at the hearing. When the applicant’s representative then raised an issue as to Mr. Metzinger’s attendance at the hearing, I explained that the company was a party to the proceeding and so was entitled to have a representative present on its behalf and to instruct legal counsel. In assessing Mr. Metzinger’s evidence, I took into account the fact that he had been present for the evidence of the other witnesses.

75At the start of the second day of hearing, the applicant requested an adjournment in order to retain legal counsel. The applicant’s representative stated that there were rulings I had made that he could not sufficiently explain to his client and so he had advised his client to retain legal counsel. The rulings at issue were my rulings regarding the proposed evidence of Ms. Paynton and regarding Mr. Metzinger’s attendance at the hearing. I explained the basis for these rulings once again to the parties and then heard submissions regarding the applicant’s request for an adjournment. I denied the adjournment on the basis that the applicant already had ample time to retain legal counsel.

76In the Application filed by the applicant, the applicant alleged discrimination because of marital status, which he identified as an allegation of “reverse discrimination”. No specifics or particulars of this allegation were provided in the Application, and this allegation was not pursued at the hearing either in the applicant’s evidence or in the submissions made on his behalf.

77Finally, in the Application and in his evidence at the hearing, the applicant raised an allegation regarding the delay in the issuance of his Record of Employment following his termination. There is no doubt that this Record of Employment was delayed for several weeks beyond the date that it should have been issued. This was raised by the applicant’s representative with in-house legal counsel for the respondent, and the Record of Employment was issued immediately after this issue was brought to the respondent’s attention. This is not a matter that is within my jurisdiction to address, absent any evidence linking the delay to a violation of the Code. There is simply no sufficient basis in the evidence before me to support a finding that this delay was attributable either to racial discrimination or reprisal. Rather, it appears that the delay was due to administrative inadvertence in the respondent’s payroll department in British Columbia.

Conclusion

78For all of the foregoing reasons, the Application is dismissed.