Hamish Safdari v. Avant Garden Services, 2013 HRTO 644

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hamish Safdari Applicant

-and-

Avant Garden Services Respondent

DECISION

Adjudicator: Mark Hart Date: April 17, 2013 Citation: 2013 HRTO 644 Indexed as: Safdari v. Avant Garden Services

APPEARANCES

Hamish Safdari, Applicant Self-represented

Avant Garden Services, Respondent Tiago Varella-Cid, Representative

1This is an Application filed on November 7, 2011 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.

2The applicant alleges that his employment with the respondent landscaping business was terminated on October 31, 2011 because he had reported a workplace injury and had made a claim for benefits from the Workplace Safety and Insurance Board (“WSIB”).

3The hearing in this matter was held on January 21, 2013, in accordance with the expectation, as expressed in this Tribunal’s Rules, that hearings under the Code proceed in a fair, just and expeditious manner. As both parties were self-represented, I took the lead in questioning the applicant and the owner of the respondent business, and deferred cross-examination until I had completed all of my questioning. Also, given the significant credibility issues as between the parties, I indicated that hearing from a former co-worker of the applicant may assist the Tribunal, and with the consent of the parties, questioned this witness by telephone. After I had completed my questioning of the applicant and the respondent, I afforded each of them the opportunity to provide any further evidence on their own behalf, and I also afforded them an opportunity to question the third witness. Both parties made brief submissions at the conclusion of the evidence.

REVIEW OF EVIDENCE

4The respondent is a small landscaping business in Toronto, which is a sole proprietorship operated by the respondent’s representative at the hearing (hereinafter referred to as the “owner”). The business primarily operates from early April to early December each year, although the respondent does some snow removal and firewood delivery in the winter months. The owner describes the business as providing a higher quality of knowledge-based landscaping and gardening service than the typical “run in and run out” lawn maintenance, including such things as pruning, care of annuals and perennials, and minor tree work.

5The applicant commenced employment with the respondent on October 19, 2011 as a casual labourer primarily to do fall clean-ups.

6On Friday, October 28, 2011, the applicant was unloading some firewood from a truck. The truck was parked in an alley, and there was a wall between the truck and where the firewood was being stacked. The applicant and another worker were in the truck throwing the firewood over the wall, and the owner was on the other side stacking the wood. A piece of wood being thrown by the applicant bounced back off the wall and hit him on the tip of a finger on his left hand. The applicant states that he experienced a lot of pain, but kept working since he was a new employee. The applicant continued to complete his work duties that day despite the pain. At some point during the day, his finger was bleeding and a bandage was applied.

7The applicant states that when he awoke the next morning on Saturday, October 29, 2011, his finger was swollen, had turned black and was very painful. Although he was not scheduled to work that day, the applicant called the owner in the morning to advise him that his injury had worsened and that he intended to seek medical treatment. The applicant states that during this phone call, the owner told him to advise the doctor that the injury had occurred at home, so that the injury would not be reported as a workplace injury and affect the owner’s insurance premiums. This is denied by the owner. He states that from what he observed on the previous day, the applicant’s injury to his finger was relatively minor and he did not believe that it would become so serious unless something else had occurred outside the workplace. The owner’s evidence is that he asked the applicant whether he had done anything at home to further injure his finger, and if so, that the applicant should tell this to the doctor because the respondent did not deserve to have a workplace injury reported against it if the injury in fact had occurred at home.

8The applicant went to a medical clinic on October 28, 2011 and saw a doctor, who took x-rays of his finger. The x-rays showed that the applicant’s finger was fractured. The applicant states that the doctor asked him how the injury had occurred, and he told her that it had happened at work. As a result, the doctor completed a WSIB form, reported the injury as a workplace injury, and indicated that the applicant could return to work on modified duties. After leaving the medical clinic, the applicant called the owner again to advise him that his finger was fractured and that the doctor had reported the injury as a workplace injury. The applicant states that the owner was angry when informed of this, and repeated again that the applicant should not have said the injury had occurred at work because this would impact the respondent’s insurance. While acknowledging that they spoke again on October 28, 2011, the owner denies that he was angry and states that he had no issue with the injury having been reported as a workplace injury by the doctor.

9The applicant returned to work on Monday, October 31, 2011 and provided the owner with the doctor’s report and the direction for modified duties. The applicant’s evidence is that he went out with a work crew and tried to assist with collecting leaves, though this was difficult due to his injured hand. The owner’s evidence is that he assigned the applicant to do some work to prune back some perennials at a client’s home in order to remove the dead growth. The owner states that he found the applicant cutting back some very lush irises, which is not what he had been asked to do. The owner states that this was the culmination of a number of issues he had been experiencing with the applicant, as discussed in detail below, and he decided to cut his losses with the applicant.

10On the morning of October 31, 2011, after receiving the doctor’s report, the owner contacted the applicant’s work references as shown on his application form. The application form is dated October 18, 2011 and had been provided to the owner either on that day or on the next day, when the applicant commenced working for the respondent. The owner had not previously contacted the applicant’s references.

11On the application form, the applicant had stated that he had worked for the Nova Scotia Agricultural College as a crop field assistant from May to December 2010. The applicant acknowledged in his testimony before me that this was not true. In fact, the applicant had been employed in three different jobs in Nova Scotia during this period of time, and had only worked for the Agricultural College from September to late October 2010. His evidence is that, when he completed the application form, he did so carelessly and in a rush and simply grouped these three jobs together. I do not accept this evidence. The applicant’s own evidence is that he had been interviewed by the owner several days before he started work on October 19, 2011 and had been given the application form at that time. As indicated, the application form is dated October 18, 2011. I find that the applicant had ample time to complete the form truthfully and accurately, and did not do so.

12The owner spoke to the reference from the Nova Scotia Agricultural College at 8:30 a.m. on October 31, 2011. During this phone call, the owner was advised that in fact the applicant had only worked there from September to late October 2011 and had left the position before the ten-week term was finished. This is significant because, on the application form, the applicant had stated his reason for leaving the position as “end of contract”. While the owner’s notes record the referee as stating that the applicant was conscious about his work (I presume this is intended to mean conscientious), the owner’s notes record that the referee also stated that the applicant had issues working with others, did not work with equipment in this position, and had not been accepted to a post-graduate position due to his work. While acknowledging that he had not worked with equipment in this position (the job entailed recording data), the applicant denied that he had issues working with others and testified that he had not proceeded with a post-graduate position at the college because he had been accepted into another college in New Brunswick.

13The application form further indicated that the applicant had worked part-time as a telemarketing sales associate from April to October 2011. The owner also contacted the reference given for this position. The owner’s notes record the referee as stating that the applicant made numerous excuses, missed work frequently and was difficult to deal with. The owner’s notes record the referee as saying, in quotes, that the applicant was “not worth the trouble” and was “not focused, his attention always seems to be somewhere else”. The owner’s notes indicate that the referee said that he wished the owner had called him before the applicant had been hired, as the referee would not have given him a positive reference. The owner’s evidence is that he would not have hired the applicant on the basis of this reference. The applicant disputes the characterization of his work performance at the telemarketing company, and maintains that he has a good relationship with the referee.

14At approximately 11 a.m. on October 31, 2011, the applicant was provided with a letter terminating his employment with the respondent. The termination letter is lengthy and provides several reasons for the dismissal. First, it is stated that during his interview for the job, the applicant had claimed to have 16 years of landscape experience, that he had worked in a garden center, and had an extensive working knowledge of plant materials as well as experience working in gardens. However, the letter states that in the short time he had been employed by the respondent, the applicant had displayed a complete lack of familiarity with standard landscaping equipment, such as line trimmers and blowers, and that there had been property damage as a result of this which had raised concerns. The letter further states that the applicant’s incorrect identification of common landscape plants revealed that his knowledge was not as he had claimed.

15The applicant denies saying that he had 16 years of landscape experience. His evidence is that he said he had 16 years of experience in horticulture, based upon the fact that he had studied for a bachelor’s and then a master’s degree in horticulture in Iran, had then taught horticulture for a period of time in Iran, and had worked for the Iranian Ministry of Agriculture. All of this was before he emigrated to Canada in August 2006. After coming to Canada, he worked at a farm for about five months, and then at a restaurant for two years. While he did work at a garden center for one year, this was as a sales associate in the seasonal department. The applicant acknowledges that his actual experience with landscaping work and equipment is very limited.

16There was a dispute in the evidence regarding the extent to which the applicant actually had been required to use standard landscaping equipment, which consists of mowers, line trimmers and blowers, during the short period he worked for the respondent. The applicant’s evidence is that he was mainly assigned work collecting leaves from client’s lawns. He did use a blower as part of this work, but he denies having been assigned to use either a mower or a line trimmer during his work for the respondent. This was disputed by the owner, who states that the applicant had been assigned to use a line trimmer, but had proceeded to try to use it in the wrong direction, and also had been assigned to use a mower, but had “scalped” a lawn and also had operated this equipment in the wrong direction. The applicant’s evidence is that the owner had said that he would be trained on this equipment, and that he had only used the line trimmer and mower as part of his training and not on a client’s property. He acknowledges that initially he was using the equipment in the wrong direction, but states that this was corrected by the owner and was not an issue.

17After hearing evidence from the applicant and the respondent and in light of the significant issues of credibility as between their versions of events, I contacted an employee of the respondent and took his evidence by phone with the consent of the parties. This witness states that he had worked with the applicant about four or five times during the two weeks he had been employed by the respondent, and that the applicant was “not up to the task” and did not display the experience and knowledge that he had claimed. This witness specifically recalled an incident where the applicant had “scalped” a lawn, and was able to identify the specific property and location where this had occurred. Even after hearing this evidence, the applicant continued to deny that he had operated a mower while working for the respondent, but stated that he had dragged a mower at a client’s property and the damage to the lawn may have been caused by this.

18The owner also gave evidence regarding an occasion when he had assigned the applicant to plant some tulip bulbs using an auger. The owner’s evidence is that he told the applicant to be careful with the auger and the extension cord, but the applicant got the cord caught in the drill and damaged the cord. The owner states that he told the applicant to pack up the equipment and return, but the applicant said that he would continue planting the bulbs by hand. The owner states that he explained that the auger is able to drill the holes deeper than by hand, but the applicant insisted that he could do the job by hand. The owner states that the applicant proceeded to finish the job very quickly, and in a shorter time than expected. The following spring, the client reported that no tulips had appeared, indicating either that the bulbs had been planted too shallowly and had been eaten, or that they had not been planted at all. The applicant denies that he was ever assigned to do a job of this nature.

19The owner also testified that there were occasions when he would quiz the applicant about common landscaping plants, and the applicant would be unable to identify them. For example, the owner stated that on one specific occasion, he asked the applicant to identify an annual that had been planted in a client’s garden that the owner thought was pentas, but the applicant said that it was a perennial. When the owner checked, the plant was an annual and not a perennial and was in fact pentas. The applicant denies that this ever occurred.

20The termination letter also cites that the owner had witnessed “potentially dangerous driving habits of no mirror checks before changing lanes and pulling out in front of traffic when the other driver had not indicated or motioned that he would allow safe passage”, which raised concerns about the safety of other staff who may be passengers when the applicant was driving. The owner testified that he observed this on the day of the applicant’s injury on October 28, 2011, when he had assigned the applicant to drive for the purpose of assessing his driving habits. The owner states that the applicant pulled out of the laneway after they had unloaded the firewood without checking for oncoming traffic, and almost collided with another driver. The owner states that he also observed the applicant not checking his mirrors when changing lanes, and that he raised this with the applicant. All of this is also denied by the applicant.

21The termination letter further refers to the reference from the Nova Scotia Agricultural College, and the discrepancies between what the applicant had indicated on the application form and what the owner was told by the referee. It is stated that “these facts clearly demonstrate that you have not been truthful, which is of great concern since I cannot employ those who cannot be trusted”. The owner states that trust is very important in his business, as he services wealthy clients who often are not at home when his crews work there, and he needs to be able to trust his employees.

22The termination letter concludes by stating that the applicant does not have the experience required for the position, should not be entrusted with the responsibility of driving, and cannot be trusted at his word. As a result, the applicant’s employment as a casual labourer for fall garden clean-ups was terminated.

23Notwithstanding the termination of his employment, the applicant received WSIB benefits until November 14, 2011, at which time his medical restrictions expired. The letter from the WSIB Eligibility Adjudicator states that, while there was a conflict between the applicant and the respondent as to why the applicant’s employment had been terminated, this conflict did not affect his eligibility for benefits.

ANALYSIS AND DECISION

24The applicant alleges that he experienced discrimination in employment because of disability when his employment was terminated on October 31, 2011 after he had reported a workplace injury.

25The first issue raised by the respondent is whether a fractured finger constitutes a “disability” within the meaning of the Code. In section 10 of the Code, “disability” is defined to include, under sub-paragraph (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”. It is not necessary in this Decision to address the question of whether an injury that would not otherwise be a “disability” within the meaning of the Code is transformed into a “disability” merely because an applicant claims or receives WSIB benefits. In the Application before me, the applicant’s allegation is that the respondent actively discouraged him from reporting his workplace injury, became angry upon finding out that he had done so, and terminated his employment as a result. Such an allegation, if established on the evidence, is clearly within the ambit of this Tribunal’s jurisdiction under the Code as a result of the definition of “disability” as set out in sub-paragraph (e).

26I find that the evidence before me supports that the applicant lacked the required experience and knowledge to perform the duties he was hired for, and that this lack of experience and knowledge was evident to the respondent in the short time period he worked there. While having a strong academic background in horticulture, the applicant himself acknowledged that he had limited practical experience with landscaping or standard landscaping equipment. He did not know how to operate this equipment properly, as testified to not only by the owner but also by an experienced co-worker. I find that the applicant did “scalp” a lawn with a mower as testified to by the respondent and the co-worker, and find that the applicant’s initial denial and later effort to modify his evidence to explain the co-worker’s testimony is lacking in credibility.

27I further find that the applicant misrepresented his previous work experience on his application form, and accept the owner’s evidence, as supported by his contemporaneous written notes, that the applicant’s job references were poor when checked on October 31, 2011.

28In light of this evidence, I find that it was inevitable that the applicant’s employment with the respondent would not have continued in any event, regardless of him having sustained a workplace injury.

29At the same time, it is suspicious to me that the respondent did not take any steps to check the applicant’s references or terminate the applicant’s employment at any time prior to the applicant sustaining the workplace injury on October 28, 2011, reporting it on October 29, 2011 and providing the doctor’s report to the owner on the morning of October 31, 2011. When I asked the owner why he decided to check the applicant’s references on October 31, 2011, the owner said that over the preceding two weeks there had been an accumulation of little things regarding the applicant’s work performance, knowledge and lack of experience that caused him to question whether he should continue to employ the applicant. I accept that over the preceding two weeks, there had been an accumulation of issues that caused the owner to doubt the extent of the applicant’s experience and knowledge of landscaping. At the same time, in my view, this does not sufficiently explain why the owner chose to check the applicant’s work references on October 31, 2011, after the workplace injury, rather than at any point prior to that.

30In order to amount to a violation of the Code, a discriminatory ground need only be one factor in a decision that negatively impacts an applicant, and need not be the only reason: see Velenosi v. Dominion Management (1997), 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (Ont. C.A.). In the case before me, I find that there were several factors that led to the termination of the applicant’s employment, including his lack of practical experience and knowledge of landscaping and landscaping equipment and his poor work references. At the same time, I find that the applicant’s workplace injury precipitated the owner’s actions in taking steps to check the applicant’s references and in making the decision to terminate the applicant’s employment, such that the applicant’s workplace injury thereby became a factor in the termination of his employment. As a result, I find that the respondent violated s. 5(1) of the Code when the applicant’s employment was terminated on October 31, 2011.

31Having said that, I already have found above that it was inevitable that the applicant’s employment would have been terminated due to non-discriminatory factors. Accordingly, I find that, as the applicant’s employment would have been terminated in any event, he did not experience any lost income as a result of his workplace injury precipitating the actions taken by the respondent on October 31, 2011. As a result, I decline to make an award of lost income to the applicant arising from the discrimination I have found.

32In addition to any claim for lost income, an applicant also is entitled to an award of compensation for injury to dignity, feelings and self-respect arising from a violation of rights protected under the Code. In McKee v. Imperial Irrigation, 2010 HRTO 1598, the employer was found to have violated the procedural aspect of the duty to accommodate an employee’s medical restrictions, but it was found that these restrictions could not have been accommodated in any event such that the applicant would not have been able to continue his employment. An award of $2,000 was made as compensation for injury to dignity, feelings and self-respect. In Cooke v. Trimaster Manufacturing, 2010 HRTO 455, it was found that an employee had been terminated during his probationary period because he was making a claim for WSIB benefits. While it was found that there were other non-discriminatory factors supporting the termination of his employment, including his low rate of productivity, the applicant was nonetheless awarded $5,000 as compensation for injury to dignity, feelings and self-respect.

33In considering all of the circumstances of this case, including the applicant’s own misrepresentations on the application form, it is my view that an award of compensation for injury to dignity, feelings and self-respect in the amount of $2,000 is appropriate in this case.

34I have considered whether any public interest remedies are appropriate in the circumstances of this case, and have determined that they are not. In my view, the monetary award in this case is sufficient to drive home to the respondent the importance of not considering a claim for WSIB benefits as a factor when considering the potential termination of an employee’s employment.

ORDER

35For all of the foregoing reasons, I hereby make the following order:

a. The respondent shall pay to the applicant the sum of $2,000 as compensation for injury to dignity, feelings and self-respect, with post-judgment interest at a rate of 3.0% per annum to run on any amount unpaid more than 30 days from the date of this Decision.