HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Aldeen Morgan
Applicant
-and-
Herman Miller Canada Inc. and Corrado Fermo
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Morgan v. Herman Miller Canada Inc.
APPEARANCES
Aldeen Morgan, Applicant
Daniel Lublin, Counsel
Herman Miller Canada Inc. and Corrado Fermo, Respondents
Neena Gupta, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment with respect to employment because of colour and reprisal. The respondents filed a common Response on August 6, 2010, denying the allegations in the Application.
2The applicant was employed at Herman Miller Canada Inc. from July 3, 2007 until March 30, 2010 as an Installation Scheduler.
3The corporate respondent Herman Miller Canada Inc. (“Herman Miller”) is a company engaged in the business of furniture design and installation.
4The personal respondent, Corrado Fermo, was employed by Herman Miller as the Vice-President Finance/Operations and then as the President of Workplace Resource a division of Herman Miller. Mr. Fermo has not been employed with Herman Miller since June 2011.
5A hearing on the merits of the Application was held on January 18, 19 and 20, April 11, 12, 13 and 18, and May 8, 2012.
The Issues
6The Application makes the following allegations:
a. That the applicant was assigned tasks outside of his job description (the “discriminatory allocation of tasks”), including,
i. That the applicant was routinely required to work outside regular business hours, including having to respond to emails and his pager; and
ii. That he was assigned menial tasks and that as a black man “Mr. Fermo believed that it was the applicant’s duty to act like a janitor or a moving man” and as a “servant”.
b. That the applicant was unfairly put on probation because of an incident that occurred in May 2008 and that thereafter he was ignored and treated in an adverse manner by Mr. Fermo because he was a “black man”. The applicant further alleges that he was alienated by the entire management team (the “probationary incident”);
c. That the applicant raised a human rights issue in the winter of 2008 with respect to an email that was sent about an installation team that stated that the team looked like they were “picked up off a street corner”. The applicant alleges that this was a discriminatory comment because the installation team was “all black” (the “email incident”); and
d. That when the applicant complained about the “mistreatment instead of passively accepting the demeaning role that they wanted me to take”, no one at Herman Miller got back to him and then his employment was terminated as a reprisal.
7The Application raised a number of claims of systemic discrimination which the applicant withdrew on the first day of hearing. The applicant also advised that he was no longer pursuing the inequitable salary issue. The hearing proceeded with respect to the remaining issues.
The Expert Evidence
8The applicant advised that he intended to call Dr. Ralph Agard as an expert witness. The will-say statement signed by Dr. Agard on December 2, 2011 indicated that he would testify with respect to a number of issues including; that the applicant reasonably believed that he was being subjected to differential treatment; how the applicant would interpret being asked to perform what he perceived to be demeaning tasks; the concept of “White Privilege” and “Cognitive Racism”; and the lasting impact of the discrimination on the applicant.
9The applicant advised on the second day of hearing that he also intended that Dr. Agard testify on the emotional impact of the violation of human rights on minorities and specifically the applicant; the appropriate steps that an employer must take with respect to a complaint from a visible minority; and the remedial actions that the Tribunal should award if the Application was successful.
10The respondents objected to Dr. Agard’s testimony by raising a number of issues including, reliability, necessity and relevance. Dr. Agard testified on the second day of hearing, with respect to his credentials and his interactions with the applicant, which involved a one-hour meeting with the applicant on the Saturday before the hearing, which was approximately five weeks after he had signed his witness statement.
11The respondent objected to the testimony of Dr. Agard, including any expansion of his proposed evidence that was not contained in the will-say statement. Both the applicant and the respondent made detailed written submissions and referred to numerous cases in support of their respective positions.
12The Tribunal denied the applicant’s request that Dr. Agard be allowed to testify as an expert witness for the reasons that follow.
13The seminal case on the issue of the admissibility of expert evidence is R v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, which discusses the following criteria: relevance; necessity; the absence of an exclusionary rule and; a properly qualified expert.
14I find that the will-say statement of Dr. Agard did not contain sufficient particulars of his proposed testimony since it simply contains general areas of proposed testimony. For example, it is not sufficient to identify in a will-say statement that Dr. Agard will testify about what an appropriate response is to a claim of racial discrimination, but the will-say must contain specifics about the “appropriate response”. There are simply no conclusions articulated by Dr. Agard in his witness statement.
15Further, in order for evidence to be relevant it must be reliable. Dr. Agard’s statement was signed on December 2, 2011, almost six weeks before his one-hour meeting with the applicant. Dr. Agard testified that he based his will-say statement on his review of the Application and the Response. In the will-say statement, Dr. Agard proposed to testify on the perceptions of the applicant and the impact of the discrimination on the applicant without even having met the applicant. Therefore, I found that the proposed evidence of Dr. Agard was not reliable, in large part because his will-say statement was signed prior to him having any interactions with the applicant, which could have led to any independent objective observations. I also note that Dr. Agard, who is not a qualified counsellor or therapist, met with the applicant for one hour and as such I would have afforded little, if any, weight to any of his observations in these circumstances.
16Further, it was not necessary to hear from Dr. Agard with respect to a number of issues including any public interest remedies, because all that was being sought by the applicant was training and improvements to policies, which are routinely awarded by the Tribunal. There is nothing unique or novel which necessitated the Tribunal to hear evidence from an expert.
17In conclusion, I declined to hear the evidence of Dr. Agard because the applicant failed to satisfy me that his proposed evidence was relevant, reliable or necessary. In light of this determination, it was unnecessary to determine whether Dr. Agard was properly qualified as an expert with respect to his proposed evidence.
The Discriminatory Allocation of Tasks
18The parties agree that the applicant applied for employment after he responded to a job advertisement posted by Herman Miller on the internet for an Installation Scheduler. Mr. Fermo testified that this was a new position that was created by Herman Miller in an effort to streamline the supervision and scheduling of the installation crews, who are subcontracted by the company. In large part the applicant was expected to liaise between Herman Miller and the installation crews.
19The applicant testified that he had been involved in installation work and that he applied to work at Herman Miller because he wanted to work in an office environment and no longer “work with his hands” or do any physical labour. The applicant signed an employment agreement and started work in July 2007, reporting to the Team Leader. In turn the Team Leader reported to Mr. Fermo, the VP Finance/Operations at the time. There is no formal job description detailing the job duties of an Installation Scheduler. The applicant’s initial salary was $48,000 per year and later was raised to $49,478.
20The applicant described that he was the only black man who worked for the company and that he was very conscious of this fact. The applicant testified that on his first day of work he was approached by two black female employees who told him to “watch himself because it is an old boys club”. As these two employees did not testify at the hearing, I put no weight on the meaning of this alleged statement to the applicant.
21The applicant testified that it was his view that the job tasks that he performed were beyond those contained in the job advertisement and that the scope of his job grew because Mr. Fermo was taking advantage of his knowledge and industry contacts. The applicant testified that he was assigned work outside of his job description and that he was required to work outside of his regular work hours and that this was discriminatory.
22The applicant testified that he was asked to perform menial tasks, which included breaking down boxes and taking garbage down to the basement, commonly referred to as the “dungeon”. He also testified that once he accidently locked himself in the basement and had to get out through a window. He also was asked to move furniture in the showroom. Though other individuals sometimes helped, he testified that it was his belief that he would always be required to lift the heavier furniture and he was required to do more work than the others because of his colour.
23There is no dispute that in large part due to the economic downturn Herman Miller unilaterally decided that all employee salaries (except those employees paid solely by commission) would be decreased by 10% and that all employees would be required to work a reduced work week. Though the Application alleged that the applicant’s salary was reduced more than others for discriminatory reasons, this allegation was withdrawn at the hearing. The applicant’s annual salary was therefore reduced to $44,530.20 in May 2009.
24All of the employer’s witnesses, including Mr. Deacon and Ms. Robertson, the HR manager, and Ms. Ingham, the applicant’s Team Leader, testified that this was a small company and everyone had to chip in to help, including moving furniture. The Tribunal heard the evidence of Mr. James Nasurick, a white man who eventually took over the applicant’s role at Herman Miller who testified about the tasks that he had to perform. These were in no way any significantly different than the applicant’s tasks.
Findings
25There was no dispute that the employees working in the office are predominately female and there are approximately ten men who would assist with heavy lifting. To some extent the higher an employee is ranked in terms of management the less they assist with “menial” tasks. The applicant did not call any evidence in support of his position that he was assigned “menial” tasks on a discriminatory basis nor is there sufficient evidence from which I am able to draw such an inference. As such, the applicant has not established on a balance of probabilities that he was assigned menial and demeaning tasks because of his colour.
26A lot of evidence was called about whether the applicant was performing tasks that were within the scope of the original job posting advertisement. However, I accept the evidence of Mr. Fermo that since the position of Installation Scheduler was a new position that it was an evolving role. I can find nothing discriminatory in the allocation of tasks assigned to the applicant. I find that Mr. Fermo considered the applicant to be an asset to Herman Miller and that he was assigning tasks in an effort to maximize his contributions at the company during difficult economic times. I also accept that the applicant was required to work irregular hours and extended shifts as described in the job advertisement since this was not a nine to five job.
The Probationary Incident
27In the spring of 2008 Mr. Fermo told the applicant that Herman Miller was considering no longer outsourcing the installation work but performing this work itself. This would involve Herman Miller no longer retaining contractors and employing the installers directly. Mr. Fermo asked the applicant his opinion with respect to the feasibility of this undertaking and whether it would result in a cost saving to Herman Miller. Mr. Fermo considered these discussions with the applicant to be confidential.
28A few weeks later the applicant divulged to one of Herman Miller’s biggest contractors that the company was considering bringing the work in-house. Mr. Fermo found out about the disclosure of this information from the contractor, who was upset because it could result in the loss of work to the contractor.
29Both Mr. Fermo and Ms. Robertson testified that they considered terminating the applicant’s employment at that time. However, the applicant apologized and considered that the incident was a result of the applicant’s lack of experience working in an office environment. Instead of dismissal they decided to impose discipline by putting the applicant on a six-month probationary period during which his work would be monitored by the Company. This occurred in August 2008.
Findings
30In the Application, the applicant states that the incident was “relatively minor” and that he was imposed discipline that was not proportionate to his misconduct because he is a Black man. The applicant admitted in his testimony that he did disclose to the contractor that the company was thinking of bringing the work in-house. However, the applicant failed, despite repeated questioning in cross-examination, to understand or acknowledge that this disclosure could potentially undermine the company’s future relationship with the contractor.
31I accept the testimony of Mr. Fermo and Ms. Robertson that they viewed the applicant’s conduct as a serious breach of confidentiality and I agree that it was. Mr. Fermo testified that the company depended on this contractor and would have been significantly negatively impacted if it withdrew its services. I do not accept the applicant’s theory that he was unfairly disciplined because he is a Black man. In light of my findings there is nothing from which I can draw the inference that the discipline was unfair or disproportionate on the basis of a Code ground.
32The applicant also alleged that subsequent to this incident, he was unfairly ignored by Mr. Fermo. In order to make out that this allegation amounts to a breach of the Code, the applicant must first establish on a balance of probabilities that he was both subject to disadvantageous treatment and also that this was on the basis of a Code-related ground. To the extent there was any evidence to support this allegation; it came from a concession of Mr. Fermo, who testified that he had reservations about including the applicant in confidential discussions after the probationary incident. In addition to my finding above that this was subjectively seen as, and objectively was, a serious incident, I also find that the applicant failed during the course of his employment to understand the severity of this breach of confidentiality. This is reflected in his Application to the Tribunal in which he characterizes the incident as minor. To the extent that Mr. Fermo may have “ignored” the applicant by excluding him from confidential discussions after the incident, I find that there is nothing from which I can draw an inference that this was based on Code-related grounds. The applicant has not otherwise established that he was “ignored” or received a comparatively different or disadvantageous level of attention from Mr. Fermo or any other member of senior management and accordingly this allegation is dismissed.
33I note that the respondents adduced considerable evidence that there was, in fact, no differential treatment in this respect as regards the applicant. Mr. Fermo denied that he ignored the applicant and in fact there was considerable evidence with respect to emails between them. Mr. Fermo testified that shortly after the probationary incident he was promoted to the position of President and therefore the necessity to interact with the applicant for work-related reasons was reduced. The respondents also called considerable evidence with respect to whether Mr. Fermo had a tendency to become distracted and fail to acknowledge his subordinates generally. Taken as a whole this evidence supports the respondents’ position that the applicant did not generally receive less attention than others and in my view supports my finding that the applicant has failed to establish on a balance of probabilities that he was ignored either by Mr. Fermo or senior management because he is a Black man.
The Email Incident
34The Application alleges that in the winter of 2008 an issue arose with respect to the performance of work at a particular project. An email was sent by Ruth Kershaw regarding a number of complaints about the installation portion of the project, including that the installers were negative, unprofessional, had no dress code, lacked responsibility, had failed to remove garbage and looked “like they were picked up at the corner of Sherbourne and Queen”. The email concludes with Ms. Kershaw’s comments that she considered that they will lose the client. This email was not sent to the applicant but to a number of other employees.
35The applicant testified that this email was shown to him by another employee. The applicant brought this email to the attention of Mr. Fermo because he did not believe that it was a fair representation of the work that had been performed by the installation team. The applicant was not satisfied with Mr. Fermo’s response, as he did not agree that there were any racial undertones to the email and told the applicant that the email was not addressed to the applicant. The applicant then of his own initiative showed the email to the installation contractor. The applicant testified that the owner of the installation company was upset by the content of the email and stated that he would raise the issue with Mr. Fermo. The applicant states that no one told him that he could file a complaint and no one talked to him further about the incident. The applicant believed that the team was comprised of all black men and that the email had racial undertones.
36During cross-examination, the applicant took the position that he did not know whether the comments in the email were Ms. Kershaw’s or the client’s. He then stated that he believed that the statement in quotes about “Sherbourne and Queen” was in fact attributable to Ms. Kershaw. He also stated that it was his opinion that this area was an area with predominately homeless black men, the implication being that Ms. Kershaw had made a discriminatory statement.
37On February 17, 2012, the respondent brought a Request for an Order During Proceedings (the “February 2012 Request”) to permit the testimony of Ms. Kershaw on the basis that the respondents had been under the impression that there was no dispute that it was understood that the comments had not been made by Ms. Kershaw but that she was repeating the comments that had been made by the client. It was the respondent’s position that it was necessary to call the evidence of Ms. Kershaw to explain the circumstances of the email.
38The applicant opposed the respondents’ Request to permit Mrs. Kershaw to testify on the basis that she had not been included as a witness prior to the hearing. In the alternative, the applicant proposed to permit Ms. Kershaw to give very limited testimony but that on cross-examination that he be permitted to question on any issue he wished.
39On March 19, 2012, the Tribunal issued Interim Decision 2012 HRTO 569 (the “March Interim Decision”), in which the respondents’ Request to allow Ms. Kershaw to testify was granted. My reasons for this decision are as follows.
40I find that the applicant did not in his Application or in his witness statement clearly identify that he was accusing Ms. Kershaw of having made a discriminatory statement. The Application states, “At the completion of this job, one of the Stakeholders sent an email to the Corporate Respondent stating that they were not happy with the team that was on site”. This statement is repeated verbatim in the applicant’s will-say statement. Further, at paragraph 18 of the Response the respondents clearly allege that Ms. Kershaw summarized the client’s concerns in the email. The applicant did not file a Reply to dispute this allegation. Therefore, I accept that the respondents were surprised by the applicant’s testimony at the hearing that he attributed the alleged discriminatory statement to Ms. Kershaw.
41Further, since Ms. Kershaw was now being accused of having made a discriminatory remark I find that it would be fair to her for the Tribunal to hear her evidence. Since the Request to allow the testimony of Ms. Kershaw was made between blocks of hearing dates, and the respondents provided the applicant with a detailed witness statement, there was more than sufficient time for the applicant to prepare in advance of the hearing for her testimony.
42Ms. Kershaw testified about the issues that arose during the project in question, including that an employee of the contractor had been found sleeping on the premises under a desk. She said that she spoke with the client and sent the email which summarized the client’s complaints. Ms. Kershaw testified that she did not understand the client’s comments to be discriminatory, including the reference to “Queen and Sherbourne” which she understood was used to describe that the contractor’s employees were not professional. Ms. Kershaw stated this was not the first complaint about this particular contractor. Ms. Kershaw did not recall discussing the email with the applicant. During cross-examination Ms. Kershaw explained that she did not send the email to the applicant because she did not understand his role in the project.
43Mr. Fermo testified that he did recall the applicant approaching him about the email; however, he does not recall the applicant taking the position that the client was being racist. Mr. Fermo stated that he delegated to another employee dealing with the client’s complaint and he understands that there were a number of meetings with respect to issues that had arisen during this particular project. Mr. Fermo does not recall speaking with a representative of the contractor himself. Mr. Fermo was of the opinion that the email did not connote any racist allegations, and under cross-examination maintained that “Queen and Sherbourne” was not an area populated by predominately black individuals.
Findings
44I have considered the evidence with respect to this issue, and I find that the applicant has not established that the events surrounding the handling of the email are evidence of any discriminatory or racist conduct. I do not accept that this email, or the comments contained therein, support the applicant’s submission that there is a racist connotation to the email. The Tribunal heard evidence from a number of witnesses about their respective subjective views of the “Queen and Sherbourne” reference and though all agreed that this is an impoverished neighbourhood, the respondents witnesses denied that this area is predominantly black neighbourhood as alleged by the applicant. I note that the applicant has provided no objective evidence to support his assertion that the reference to “Queen and Sherbourne” is an area populated by predominantly black individuals or even one that is either currently or historically understood to be so.
45I accept the testimony of Ms. Kershaw that she was repeating the comments made to her by the client. I also find that it is clear from the content of the email that Ms. Kershaw was summarizing the comments of the client.
46I am not satisfied that the applicant did in fact raise the issue that he perceived the email to be discriminatory with Mr. Fermo, but even if I accept the applicant’s testimony, I find that it was not inappropriate for Mr. Fermo after reviewing the contents of the email to conclude that it did not denote any racism. Indeed, that is consistent with my findings.
47The applicant alleges that Mr. Fermo had an obligation to address the issue of alleged racism in the email. Given my findings, that Ms. Kershaw did not make the comments and that in any event there was nothing in the email that was discriminatory, I find that there is no basis to support the allegations that the email or the treatment of the email by the respondents infringed the applicant’s rights under the Code.
The Applicant’s Termination from Employment
The Applicant’s version of Events
48On February 27, 2010, the applicant was working at a project site and returned to the office to find his co-workers having a pot luck lunch. Since an account manager was on vacation his workload was increased and he had to deal with a number of additional issues. The applicant testified that he was tired and hungry because he had not yet had his lunch. He testified that Ms. Robertson yelled at him across the room when he came in, asking him where he had been because someone was looking for him. Ms. Robertson did not know, but in fact the applicant had already dealt with this issue. The applicant felt embarrassed and humiliated because of this and, he said, no one yells at Herman Miller. The applicant told his supervisor Ms. Ingham that he wanted an apology from Ms. Robertson.
49The applicant testified that the next day Ms. Robertson approached him because she felt that it was important that they “clear the air” and they met in a boardroom. The applicant testified that he believed that Ms. Robertson gave him a sincere apology. During this meeting the applicant told Ms. Robertson that he believed that he was being unfairly assigned menial tasks because of his race. He also discussed a number of concerns that he had with respect to Mr. Fermo and his management style and the low morale at the company. The applicant testified that Ms. Robertson listened to what he said and that she would follow-up with him within two weeks, which she failed to do.
50The next day the applicant spoke to his supervisor Ms. Ingham about what was going on. During this conversation the applicant was paged to retrieve liquor from Mr. Fermo’s car for an event that the company was throwing. The applicant says that he told Ms. Ingham that this was exactly what he was complaining about. He states that he told Ms. Ingham that he felt like a houseboy and Mr. Fermo’s slave and that he was being targeted to perform these tasks because of his race.
51The applicant then testified that he spoke to Beth Johnston, the new Director of Sales, about the same issues that he had raised with Ms. Robertson and Ms. Ingham. The applicant had no reporting relationship to Ms. Johnston, who summarized their conversation in an email she sent to Mr. Fermo, dated February 26, 2012, as follows:
Hi Corrado,
Per our chat, here are the highlights from my conversation with Deen. He is clearly very unhappy here and has no problem voicing his perspective of how dysfunctional he thinks HMWR is.
very unhappy here
has gotten advice from a lawyer
is documenting “issues”
is disrespected
does “everything” around here
treated like a “black slave”
has reviewed his “situation” with the head of scotiabank (girlfriend’s employer)
lawyer advises to push lawsuit and he “will get a settlement”
has very negative attitude
if he does “push” issue, will send letter to Brian Walker
he says management does not care
HMWR culture contradicts what Herman Miller website advertises (particularly how minorities are treated)
he shares his opinions with Sonja, Denise, Claudio, Mark
he openly criticizes work team leaders and executives
does a ton of work over and above his job and does not get paid for it
gets no recognition
executives don’t speak to him
he is ignored
52Though the applicant was not aware that Ms. Johnston had sent this email at the time he testified that this email accurately summarized the issues that he raised with the Ms. Johnston during their conversation.
53The applicant testified that no one from the company got back to him about the issues that he had raised. He suspected that he would be terminated and he was not surprised when this occurred on March 30, 2010, in a meeting with Ms. Ingham and Ms. Robertson. The termination letter he received states as follows:
We have just cause for your termination. Recently, you have deliberately misinformed your co-workers regarding the financial situation of Herman Miller and implied that you have access to confidential information that Herman Miller was contemplating selling its dealerships. There is no basis for this campaign of misinformation and your speculation, disguised as confidential information, caused unnecessary alarm amongst your co-workers. We have no idea why you would choose to spread such deliberate untruths in the workplace. Your conduct undermines the hard work Herman Miller has undertaken to minimize the impact of the financial downturn on the staff.
You have disclosed to us that you are profoundly unhappy at Herman Miller. You continue to dispute the validity of the discipline that was given to you in 2008 regarding your leakage of information to outside resources regarding Herman Miller’s confidential planning.
In addition, you have openly expressed your lack of confidence in Herman Miller’s work team leaders and executives.
In the circumstances, there is clearly no possibility of repairing the relationship.
54The applicant testified that he was surprised by the reason given by the company in support of his termination from employment, specifically that he had spread mistruths about the company selling his dealership. He had never been approached by any representative of the company with respect to this issue. The applicant testified that there had been a number of conversations about the ongoing feasibility of the company, especially when the company decided to reduce the work week and salaries. The applicant testified that there were a number of rumours circulating and that a lot of employees were having these types of discussions.
The Respondents’ Version of Events
The Response
55The Response filed on August 6, 2010 at paragraphs describes the events of February 24 and 25, 2010, being the conversation between the applicant and Ms. Robertson. The Response states that Ms. Robertson “perceived Morgan as wanting to ‘vent’ about workplace concerns” and that she reported these concerns to Ms. Ingham. The Response states at paragraph 37 with respect to the applicant’s termination from employment:
It became evident that Morgan was profoundly unhappy, was openly stating that he was going to sue Herman Miller, felt that he did “everything” and was openly critical of work team leaders and executives of Herman Miller. Morgan’s communication style was unprofessional, loud and inappropriate.
Thereafter, it was discovered that Morgan had communicated false information to another Herman Miller employee that the Toronto Herman Miller dealership was going to be sold due to economic conditions. Morgan apparently seeks to diminish his own participation by stating it was being “informally discussed” and “informal scuttlebutt”. Morgan fails to take responsibility for his own actions. Morgan postured that he was “in the know” and the employees believed Morgan’s communications and believed he would be losing his job as a result of this purported transaction. Morgan’s communication undermined Herman Miller’s efforts to maintain employee morale in difficult economic times.
With respect to paragraph 48 of Schedule “A” of the Complaint, Morgan was terminated because Herman Miller determined that he was undermining Herman Miller’s operations due to the spread of inaccurate information and his overall hostility and negativity.
The February 2012 Request
56In the February 2012 Request which was brought by the respondents to permit the testimony of Ms. Kershaw, the respondents also sought to rely on spreadsheets created by Ms. Robertson in the fall of 2009, which would indicate that the decision to terminate the applicant’s employment was made in the fall of 2009. The respondents submitted that this document, which was delivered to the applicant with the names of employees redacted, was necessary to establish their position that the timing of the applicant’s termination from employment was made many months prior to the applicant raising any human rights issues, and therefore could not constitute a reprisal. The 2012 Request states that during the first two days of hearing after having discussions with respect to “what was perceived to be an emphasis on Herman Miller receiving complaints of race discrimination and not investigating same” and that “Corrado Fermo recalled that the decision to terminate Mr. Morgan had been made in the fall of 2009, well before the timing of any conversations with Ms. Ingham, Ms. Johnston and Mrs. Robertson, as part of an overall restructuring.”
57The applicant filed a detailed Response opposing the respondent’s Request to introduce this document into evidence on the basis that this constituted “an entirely new theory and a new defence” that had never been advanced by the respondents, and that such a change in position was an abuse of process.
58In Interim Decision 2012 HRTO 569, I determined that the admissibility, relevance and weight of these documents would be determined during the hearing and directed the respondents to provide unredacted copies of the documents and to provide revised witness statements for any witness who was going to refer to these statements in their testimony. I declined to grant the respondent’s Request to issue an order with respect to the confidentiality of the documents or the employees named in the documents, because it would be unfair to the applicant, given the late disclosure of the documents and could have prejudiced his ability to prepare a his case.
The Evidence of Ms. Robertson
59Ms. Robertson testified about the financial difficulties that Herman Miller encountered which resulted in the dismissal of seven employees in January 2009 called Phase 1 of an effort to cut costs. Phase 2 was scheduled to result in the termination of more employees, including the applicant, in April 2009. However, the company decided that instead of laying off employees that it would implement a universal reduced work week and salary reductions in May 2009. She stated that all of these measures and reductions in staff and salaries were implemented for the purposes of reducing costs but that this also resulted in “really low” employee morale.
60Ms. Robertson again prepared a list in mid to late October 2009 which identified a number of employees who would be terminated. She testified that the applicant was on that list because of the probationary incident, because he did not hold a key position, because Herman Miller was unsure whether the position should be on the payroll and because of his behaviour in the office. Ms. Ingham was also upset about comments that the applicant had made about her at an industry event. On cross-examination, Ms. Robertson confirmed that a number of employees who were on that list were in fact never terminated by Herman Miller.
61With respect to the events of February 24, 2010, she stated that she may have yelled to get the applicant’s attention. She also testified as follows. The next day she met with the applicant to clear the air and explained to the applicant that she was not trying to do anything untoward. During the conversation the applicant told her that he was dissatisfied with Mr. Fermo’s leadership, and that he believed that he was being ignored. He did talk about having to do a number of tasks such as taking boxes down to the basement but that he did not indicate that these were degrading or menial. Though he did use the term “white gloves”, she denies that the applicant used terms such as being treated as a “houseboy” or a “slave”. She stated that the applicant appeared to be stressed and overworked and therefore she told Ms. Ingham that she should meet with the applicant to discuss his workload issues. Ms. Robertson denies that she told the applicant that she would get back to him. In cross-examination, she clarified that she told the applicant to come back to talk to her in a few weeks if things did not improve.
62Ms. Robertson received an email from Mr. Fermo forwarding on Ms. Johnston’s February 26, 2010 email. During cross-examination, Ms. Robertson acknowledged that this email did indicate that the applicant had raised a human rights issue and that she forwarded this email to her counterpart in the United States. She doubted that an independent investigation had been undertaken, and she had left this up to her American counterpart. She acknowledged that Herman Miller’s inaction could have been a breach of the company’s Human Rights policy. Though Mr. Fermo states in this email that they will talk about the issue the next week, Ms. Robertson had no recollection of any conversations with him or Ms. Ingham about the applicant.
63Ms. Robertson was very vague about the circumstances and the timing of when it came to her attention that the applicant was allegedly spreading false rumours about the potential closure of the dealerships. According to her, it may have been at some time in early February 2010. She testified that she spoke with an employee who told her that it was Mr. Morgan who had told him this misinformation. During cross-examination she confirmed that she did not speak with the applicant about this issue, nor give him an opportunity to explain himself.
64Ms. Robertson testified that though she does not typically include reasons for an employee’s termination from employment if they are laid off, she did so in this case because she wanted the applicant to know that Herman Miller had just cause to terminate his employment. Of the three individuals who were terminated in March 2010, the applicant was the only one whose termination letter referred to just cause, though Herman Miller did pay the applicant his entitlements to termination pay pursuant to his employment contract
65On cross-examination, Ms. Robertson confirmed that she received an email from Mr. Nasurick on April 7, 2010, demonstrating an interest in the applicant’s former position, which she says was unsolicited. She testified that she started creating a job posting for the position on April 16, 2010, and that on June 1, 2010, an offer was made to Mr. Nasurick.
66The applicant tendered an Affidavit sworn on August 22, 2011, by Ms. Robertson (then “Ms. Henderson”) (the “Robertson Affidavit”) which detailed her proposed evidence with respect to the applicant’s termination from employment in part as follows:
On February 25, 2010, I met with Deen as soon as he arrived in the office for the express purpose of apologizing to him, stating that it was not my intention to upset him. He appeared to be very stressed and overwhelmed, especially since the Senior Project Manager he normally worked with was on vacation and Deen was also covering additional tasks during this period. At no time during the meeting did I get the impression that he felt that he was being discriminated against. I got the impression that Deen simply needed to vent his frustrations and I was actively listening to him to ensure that I was interpreting it correctly. I did not take any notes.
Deen did express to me his unhappiness with his working relationship with Corrado and when I asked whether he had shared his discontentment with Corrado, he denied this. Before, ending the meeting, I asked Deen to meet again with me in a few weeks once his workload had returned to normal to discuss any ongoing concerns.
67With respect to the reasons why the applicant’s employment was terminated the Robertson Affidavit states:
After considering the numerous coaching sessions, the prior performance letter relating to the breach of confidential information, lack of effort by Deen to modify his behaviour to meet acceptable business standards, open lack of respect for HCMI leadership and Deen’s deliberate misinformation to an employee, HMCI concluded that the relationship was irreparable and that it had just cause to terminate his employment.
68Ms. Robertson stated that she did not identify in her Affidavit that the decision to terminate the applicant’s employment was made in October 2009, because it was only after the hearing started that she understood that the applicant was raising the respondent’s failure to investigate his complaint and that he was terminated as an act of retaliation. On cross-examination Ms. Robertson acknowledged that it would have been an obvious and full defence to the Application that the company had decided to terminate the applicant’s employment because of the restructuring.
Mr. Fermo’s version of events
69Mr. Fermo testified that Herman Miller was experiencing financial difficulties and that therefore Phase 1 of a cost-saving initiative was implemented in January 2009 with the layoff of eight employees. Mr. Fermo testified that though the applicant was on the list, he was not terminated due to client demands. He also testified that after Herman Miller implemented Phase 2, which involved cutting the work week and reducing employee salaries, employee morale was very low. During cross-examination Mr. Fermo stated that Mr. Morgan’s employment was terminated because he was a negative influence. He acknowledged that the termination letter states that the applicant was being terminated for cause and not as a result of a restructuring.
70Mr. Fermo testified that Herman Miller decided to terminate three employees in October 2009 and that these would take place in November 2009. However, because one of these employees was very senior and Herman Miller was trying to find a role for him, all three terminations kept getting deferred. The other employee was an accounting clerk who had performance issues, and the company wanted to hire a bilingual person.
71With respect to the email that he received from Ms. Johnston, Mr. Fermo thought that the accusations made by the applicant were “pretty harsh” and that he disagreed with them. He testified that there was no investigation and that he was not sure that one needed to be undertaken. However, that was Ms. Robertson’s job and he did not know why there was no investigation. He does not recall speaking to anyone about this email or Mr. Morgan in the next week or so. During cross-examination Mr. Fermo maintained that a “report” of discrimination should be in writing and that there was no report of discrimination in this case. He also agreed with counsel for the applicant that the failure to investigate turned out to be a “spectacular oversight”.
72Once Mr. Morgan’s employment was terminated, the sales people said that they needed the role back. Eventually, Mr. Fermo decided to maintain the position and keep the role.
73The applicant entered into evidence an Affidavit dated May 30, 2011, which was sworn by Mr. Fermo which states the following with respect to why the applicant was terminated from his employment:
In March, 2010, I was approached by Krista Ingham, who advised that they had concerns about Morgan’s behaviour. Morgan seemed to be extremely unhappy and appeared to be spreading doubts about WR’s future within HMCI and suggesting that WR might even be sold. This speculation was extremely harmful. WR was struggling to improve performance in the depths of a very tough recession, morale was low because people were working 9 days/10 and receiving 90% pay and this type of negative messaging was the last thing WR needed. Despite Morgan’s technical knowledge and contributions, I determined that we could not have a negative influence in our workforce and concurred with the recommendation of Christine Robertson and Krista Ingham that he be replaced. It was Morgan’s attitude and not his race that caused him to be fired.
74Mr. Fermo explained on cross-examination that this Affidavit was not accurate, and that in fact the decision to terminate the applicant’s employment occurred many months prior to this date. He also clarified in his evidence that the date should be “February 2010” instead of “March 2010”.
Ms. Ingham’s version of events
75Krista Ingham testified that the applicant was very strong in the field but that he did not know how to fit in the corporate environment. For example she recalls that the applicant was very abrupt and harsh in a meeting in December 2008, because he was not happy about an overtime issue. She characterized his comments as abrupt, harsh and accusatory. Eventually an arrangement was agreed to with respect to overtime and the applicant was advised that in future he should not bring these issues up in a meeting but privately.
76Ms. Ingham testified that the applicant was not terminated during Phase 1 because he was an integral part of the team with respect to an upcoming large project. In April 2009, Ms. Ingham gave the applicant his evaluation; she advised him that because of the probationary incident he needed to regain Mr. Fermo’s trust. She was disappointed when the applicant stated the probationary letter was “a joke” and that he was very dismissive of the issue. Ms. Ingham told the applicant that he needed to work on his professionalism and communication.
77In late September 2009, the applicant attended an industry event. In November 2009, Ms. Ingham was advised that the applicant had openly made some unfavourable remarks about her abilities at that event, the specifics of which she does not know. The applicant acknowledged in his testimony that the statement that he made were words to the effect that Ms. Ingham did not add value to the franchise.
78Ms. Ingham was very upset about this and wondered if the applicant was talking about this with anyone else. Ms. Ingham met with the applicant in November 2009 and gave him a cautionary word of advice, which she concedes was vague, about being more cognizant of the appropriateness of his comments. Ms. Ingham stated that during this conversation the applicant raised the issue that he did not believe that Mr. Fermo was acknowledging him in the morning. Ms. Ingham told him that she did not believe that this was intentional.
79Ms. Ingham testified that there was a meeting in December 2009, the applicant made comments to the effect that a company employee survey that had been undertaken did not truly reflect company morale and that it was a joke.
80Ms. Ingham testified that in late 2009 and early 2010 she was asked to take a look at the applicant’s role within the organization. She did not believe that Mr. Morgan was a right “fit” and that he would not have a long standing relationship with the company. Ms. Ingham considered the applicant’s probationary incident, the December 2009 meeting incident and the negative comments that he had made against her.
81Ms. Ingham stated that a representative of Herman Miller was coming in February 2010 and that she recalls that the decision to terminate the applicant had been made prior to that visit though she does not recall the specific date.
82On the day of the pot luck, she recalls meeting with Mr. Morgan and that he “offloaded” a number of issues, including that he felt overworked, Ms. Robertson had yelled at him, and that he was abused by the salespeople. She denies that the applicant used the word “houseboy”. The applicant agreed that he would go home for the remainder of the day and Ms. Ingham spoke to Ms. Robertson. Ms. Ingham testified that at that time she knew that they would be proceeding with the applicant’s termination from employment. In cross-examination Ms. Ingham stated that the applicant did tell her that he felt that he was a “puppet” and that he had to put on “white gloves and a mask”.
83Ms. Ingham recalls speaking with Mr. Corrado and that these outbursts and negativity reinforced their decision to terminate the applicant’s employment. Since Ms. Ingham was going on vacation the applicant’s termination from employment was delayed until her return.
Beth Johnston
84Beth Johnston testified that her email accurately captured her conversation with the applicant. In her view the applicant was not making a formal complaint to her, and the conversation occurred because the applicant was waiting for another employee to go to lunch. After the applicant left she went to see Mr. Fermo and then, at her own initiative, sent him an email summarizing the conversation. Ms. Johnston was not involved in the decision to terminate the applicant’s employment.
The Law
85Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, discusses the obligation of an employer to adequately address and respond to allegations of Code-related discrimination and harassment in the workplace.
86In the decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 3 and 4:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
87Further, the Tribunal has found that an applicant need not prove that discrimination has occurred to benefit from the protection of s. 8 of the Code. However, the applicant must have a genuinely held the belief that the respondents were infringing his Code rights. See for example Bertrand v. Primary Response, 2010 HRTO 186.
88I have also considered the issue of credibility, guided by the decision in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), where the British Columbia Court of Appeal states at p. 356-357:
…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.
89I also considered the factors identified by this Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.
Findings
90For the reasons that follow I find that the decision to terminate the applicant’s employment was made as a reprisal because the applicant claimed his Code rights by raising issues of harassment and discrimination in his workplace. I also find that the respondents failed to adequately address, or take any steps in response to, the applicant’s allegations of discrimination and harassment.
Did the applicant claim or enforce a right under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
91Based on the evidence that I heard, I find that the applicant genuinely believed that he was subjected to differential treatment because of his colour, which included being targeted to perform a number of tasks and that he was being ignored by Mr. Fermo.
92Both Ms. Robertson and Ms. Ingham denied that the applicant raised any human rights issues during their respective conversations. Even if I accept this evidence, within the next day or so Mr. Fermo and Ms. Robertson were both aware of the conversation that the applicant had with Ms. Johnston in which he clearly identifies that he believes that he is being treated as a “black slave” and that minorities are not treated in accordance with the company’s policies. In her closing argument, counsel for the respondents argued that the respondents interpreted the comment “black slave” as meaning that he was overworked. However, none of her witnesses testified that they interpreted this comment in this fashion. Further, the comment that “HMWR culture contradicts what Herman Miller website advertises (particularly how minorities are treated)”, clearly identifies that the applicant told Ms. Johnston that he was being treated differently because he was a minority.
93The respondents argued that the Application did not identify Ms. Johnston as an individual to whom the applicant complained and that they had no reporting relationship. Regardless, Ms. Johnston was a member of management and she did report her conversation to Mr. Fermo, who in turn reported it to Ms. Robertson. At that point they both knew that the applicant was raising a human rights issue in the workplace and claiming his rights under the Code.
94Even if I accept Ms. Robertson’s testimony that she did not understand the applicant’s complaints to be related to any human rights issues during her conversation with him, by the next day or so it was clear that the applicant was raising human rights issues. Ms. Robertson did not approach the applicant to clarify whether his previous complaints about the manner of his treatment or the previous discussions were Code-related. No representatives of Herman Miller approached the applicant to discuss his concerns.
95Ms. Robertson testified that she forwarded the email to “someone in the U.S.” and that she received no response or direction from them. This is an indication that she perceived the applicant’s concerns to be of significance. The applicant’s counsel raised the issue that the corporate respondent failed to conduct an investigation into the matter. I find, in fact, that the respondent failed to do anything in response to the applicant’s issues. There was not even a follow-up with the applicant to clarify the nature of his complaints. Instead there was a complete inaction from the employer.
96Mr. Fermo testified that there was no written report of harassment and discrimination made by the applicant; however, if one was required, then a representative of the Herman Miller should have approached the applicant to discuss this requirement. Further, I find that the Code does not require that employees raise issues of discrimination and harassment in writing with their employer in order to trigger their employer’s obligation to address these issues in the workplace.
97Mr. Fermo identified that it was Ms. Robertson’s role to address the applicant’s concerns and she in turn referred this issue to her counterpart in the U.S. I find that Herman Miller failed in its obligation to act reasonably in addressing the applicant’s allegations of Code-related harassment and discrimination in an adequate and appropriate manner. This is an organizational failure.
The reasons for the applicant’s termination from Employment
98Both the termination letter and the Response, which I note the respondents never sought to amend, are very clear about the reasons for the applicant’s termination from employment. They rely on the applicant’s “campaign of misinformation” which the Response alleges occurred after the applicant’s alleged conversations in February 2010. There are no allegations that the applicant’s employment was to be terminated as part of a restructuring and that the decision had been made prior to the applicant raising any human rights concerns.
99At the hearing, the testimony given by the employer’s three key witnesses diverged on significant issues. Ms. Ingham testified that she was approached in late December 2009 or early January 2010 to look into issues of the applicant’s continued employment, whereas both Mr. Fermo and Ms. Robertson testified that the decision was made in October 2009 to terminate the applicant’s employment in November 2009. This would predate any knowledge that the applicant had expressed negativity about Ms. Ingham at the industry event or any of the applicant’s comments in December 2009 about the employee surveys. I find that the evidence given by these witnesses at the hearing about the alleged restructuring was confused and unclear with respect to both the reasons for the applicant’s dismissal and its timing, significantly undermining its credibility. Even more damaging to the respondents’ credibility with respect to the termination issue was their unexpected mid-hearing change of position on the reason or reasons for termination. I address this further below, but I find the reason they provided for their change in position unconvincing and as a result not only would I give little weight to their testimony in support of “restructuring” as the reason for termination, but I find this dramatic inconsistency and change of position raises significant concerns for me with respect to the credibility of their initial position on the reasons for the applicant’s termination.
100In contrast, I find that the reasons provided in the Response, Termination Letter and original Affidavits sworn by Ms. Robertson and Mr. Fermo to be very consistent and are all very clear about the stated reasons for and perhaps more importantly the timing of the applicant’s termination from employment. I prefer the evidence of Mr. Fermo’s Affidavit which clearly identifies the timing of the decision to terminate and to “replace” the applicant, which occurred after the applicant raised his allegations of discriminatory conduct. This is consistent with the documentary evidence that was tendered into evidence, including an email from Mr. Nasurick within a week of the applicant’s termination which states that he had been advised that they were looking for a replacement for the applicant.
101The Application only identified two grounds of discrimination: colour and reprisal. The respondents filed a Response within five months of the applicant’s termination from employment. It was clear that the issue of the timing of Herman Miller’s decision to terminate the applicant’s employment was critical. If the respondents had in fact decided to terminate the applicant’s employment prior to the February 2010 meetings with the applicant then this would likely have been a full defence to the allegation of reprisal.
102However, the Response does not identify restructuring as a reason for the applicant’s termination but does identify other specific reasons for the termination. Herman Miller’s true reasons for the applicant’s termination from employment are not dependent on the issues raised in the Application. I find that the restructuring defence which was raised mid-hearing is an entirely new defence to the Application which is inconsistent with the defence raised in the Response. In addition to the reasons below, I find that the defence that the dismissal was based on general restructuring, as well as the testimony in support of this, is significantly undermined by the fact that it was not raised until mid-hearing and that it conflicts dramatically with more contemporaneous accounts by the respondent of its reasons for the termination.
103Though it may have been that the respondents had considered terminating the applicant’s employment in the past for economic reasons, I do not accept that the decision to terminate the applicant’s employment was made before February 2010. It may be that the applicant was on a list at some point as a potential termination from employment. However, I find that a number of individuals on the list were not terminated.
104With respect to Ms. Ingham’s testimony, though she may have recommended that the applicant’s employment be terminated previously, I find that it was Mr. Fermo who made the decision to terminate the applicant’s employment. He relied at the time of the termination on the reasons given in the Termination Letter, Response and his original Affidavit, although for the reasons below I find the termination was directly related to the applicant having raised concerns of harassment and discrimination.
105The applicant denied starting the rumour that the dealership would be closed. Ms. Kershaw testified at the hearing that she had heard the same rumour and that the applicant had not been her source. Though the respondents take the position that starting this rumour was detrimental to employee morale, even assuming they believed the applicant was responsible for it, they took no actions to tell the applicant to stop spreading this rumour. Nor did Ms. Robertson speak to the applicant to get his version of events or even give him an opportunity to address this accusation. In these circumstances I accept the applicant’s evidence that he did not start this rumour, and find that, to the extent it was identified in the termination letter, it was pre-textual.
106I also find that there is a lack of evidence from the respondents about what occurred the month prior to the applicant’s termination from employment. Despite Mr. Fermo’s direction that employees should document their conversations with the applicant, it appears that no one followed this directive since everyone admitted that they had not made any notes.
107Having considered the totality of the evidence I find that the respondents terminated the applicant’s employment because he raised issues of harassment and discrimination and because he had threatened to “sue” the company in this regard. With respect to Mr. Fermo’s liability, I find that since he testified that he made the decision to terminate the applicant’s employment, that he also committed an act of reprisal.
108Instead of dealing with the applicant’s allegations in an appropriate manner, the company chose to terminate the applicant’s employment. I note that the termination letter itself relies on the fact that the applicant was “profoundly unhappy”. I find that this unhappiness was a direct result of the fact that he perceived that he was being treated in a discriminatory manner because of his colour. Although reprisal need only be one factor in the decision to terminate the applicant in order to find that the applicant was terminated contrary to his right to be free from reprisal under the Code, in my view the reasons in the respondent’s termination letter were otherwise pre-textual. This includes the breach of confidentiality that occurred on August 2009 and the comments made by the applicant about Ms. Ingham. A significant period of time had passed since the confidentiality incident and in my view the issue was largely “stale dated” by the time of the applicant’s termination. Further, the applicant was not even disciplined by Ms. Ingham at the time of the comments in relation to her but he was “cautioned”.
Remedies
109The Code provides the Tribunal with a broad remedial authority once it has determined that a breach of the Code has been established. Section 45.2 of the Code states:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
110The applicant seeks damages for lost wages of $55,799.70 which represents approximately 14 months’ loss of wages, additional monetary compensation for loss of benefits and for injury to dignity, feelings and self-respect, as well as future compliance, or public interest, remedies.
Compensation for Lost Wages and Benefits
111The purpose of granting remedies pursuant to the Code is to compensate the applicant for any losses flowing from the breach of the Code. In this case, the applicant seeks the recovery of lost wages for the period of 14 months. The applicant submitted numerous documents and emails with respect to his efforts to mitigate his damages.
112The respondents did not take issue with the applicant’s efforts to mitigate his damages. However, they submitted that the Tribunal should consider the applicant’s past misconduct and infer that his employment would likely have been terminated at some point in the future and that this should be taken into account when awarding remedies.
113Both Mr. Fermo and Ms. Ingham testified that the applicant had strong technical skills. I decline to do so in this case. The respondents rely on the applicant’s negativity, unhappiness and attitude at work as evidence that in all likelihood the applicant’s employment would have been terminated. Who knows what would have happened if the respondents had dealt with the applicant’s human rights issues— it may or may not have resulted in an improvement in the applicant’s attitude at work. To find otherwise would be pure speculation on my behalf
114The applicant did not engage in insubordinate conduct or aggressive conduct. I also find that there should be some leniency when employees raise human rights issues at work. I also note that the corporate respondent’s financial situation had improved and that the corporate respondent reinstituted the full work week by May 2010. With respect to the other issues identified by the respondents, as noted above, I find that they were stale dated, including the breach of confidentiality that occurred on August 2009 and the comments made by the applicant about Ms. Ingham. In the absence of a finding that the applicant would otherwise have been terminated, it is not appropriate for the Tribunal to reduce any remedies, in this case, based on these events.
115Therefore, I find that it is appropriate to award the applicant the lost wages that he seeks for the period of 14 months. It was undisputed that this amount was properly calculated at $55,799.70 and it shall be payable less required statutory deductions and withholdings. Although the applicant took the position that I should add 15% to that amount to reflect his loss of benefits I decline to do so in this case. Though the applicant’s counsel stated that such percentages are routinely added by Courts in wrongful dismissal actions, I heard no evidence from the applicant about any losses or expenses that he may have incurred with respect to the loss of these benefits.
Compensation for injury to dignity, feelings and self-respect
116In addressing relevant factors in determining compensation for injury to dignity, feelings and self-respect, in particular cases, the Tribunal provided the following comments in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52-54:
(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
117I find that it is appropriate to award the applicant damages for injury to dignity, feelings and self-respect since I accept that the infringement of his right to be free from discrimination has had an impact on the applicant. However, counsel for the applicant could not point me to a case which would support the extremely high range of damages sought by the applicant. I note that there are not many cases in which the applicant has been successful in only establishing a breach of the reprisal sections, and that most cases have found multiple breaches of the Code. In the case of Chan v. Tai Pan Vacations, 2009 HRTO 273, the Tribunal awarded an applicant $15,000 in damages as compensation for her right to be free from reprisal.
118I have considered the evidence of the applicant with respect to the impact of the respondents’ conduct. This includes his testimony with respect to the uncertainty he faced in the workplace, for over a month, after he raised his allegations of harassment and discrimination in February 2010, when no one got back to him about the issues that he raised and his certainty that things had somehow changed and that his employment would be terminated. He also testified as to the impact of being terminated on the basis of just cause and his belief that he could not use his experience with Herman Miller as a reference in any future employment, which was significant given that this was his first office job and that he had been with the company for a number of years.
119However, I do not accept that the applicant was treated in an adverse or discriminatory manner at the termination meeting or when the employer took his Blackberry to erase his contacts. I do accept that this termination may have been different than other terminations since the respondents carried out the termination on the basis of just cause. With respect to the personal contacts, the applicant did not provide any evidence as to how this may have resulted in injury to his dignity, feelings or self-respect and it was not otherwise clear to me what the impact of this loss may have been to the applicant, other than that it may have had an impact on the applicant’s ability to mitigate his damages. To the extent this may have been the case, I have awarded the applicant the full wage loss that he was seeking.
120Aside from his testimony about the month or so of uncertainty, the impact of being terminated for cause and the loss of his personal contact information from his work Blackberry, the applicant provided no additional testimony or evidence in support of the subjective impact the termination may have had on his dignity, feelings and self-respect. I accept that termination from employment for Code-related reasons is in itself objectively serious conduct and would support a higher compensatory award. However, in this case, I have found not found any discriminatory conduct or harassment contrary to the Code occurred during the course of the applicant’s employment, aside from the termination itself. Accordingly, the absence of ongoing harassment or discriminatory conduct during the course of employment, circumstances which would generally point to an objectively more serious impact on an applicant, support a lower compensatory award.
121For the reasons above, I find that Herman Miller’s failure to address the applicant’s workplace issues and ultimate termination from employment had a significant impact on the applicant. However, I have considered the circumstances of this case and the applicant’s testimony, and I find that the applicant should be awarded $15,000 as damages for injury to dignity, feelings and self-respect.
Future Compliance Remedies
122Though the applicant sought an apology from the respondents, I was presented with no case law that would support my jurisdiction to make such an order or that such an order has been awarded in the past. The applicant relied on the case of Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789, specifically at paragraph 109 which states:
The Tribunal is empowered to direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code. It is well-established in human rights law that any order intended to promote Code rights and policy “…should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances”.
123I do not find that it is appropriate to order an apology, as it would not ensure future compliance and I am concerned that this would force an admission from the respondents which is punitive in nature.
124However, though Herman Miller did appear to have internal human rights policies, it is clear based on the evidence of Mr. Fermo and Ms. Robertson that its managers did not know how to adequately respond to the issues raised by the applicant. In these circumstances, I find that it is appropriate to direct Herman Miller to retain an expert in human rights, of its choosing, to review its human rights policies and to train all of its current employees holding the rank of manager or higher and those employed in human resources who perform work in Ontario with respect to the revised human rights policy, the Code and how to respond to allegations of harassment and discrimination.
125I find that these educational public interest remedies will ensure future compliance with the Code.
The Liability of Mr. Fermo
126I have considered the circumstances of this case and whether Mr. Fermo should be held personally liable for the damages awarded to the applicant. In this case the Tribunal has found that Mr. Fermo was ultimately the employee who was responsible for the applicant’s termination from employment, which was a reprisal. The respondents submitted that Mr. Fermo was acting within the scope of his employment. The Tribunal has found that it has discretion in determining when a personal respondent should be held personally liable. See Williams v. Children’s Aid Society of Toronto, 2011 HRTO 265 at para. 180.
127Unlike the case in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.), there is no evidence before me that Herman Miller is inoperative and/or cannot satisfy the financial remedies ordered by this Tribunal. I therefore exercise my discretion and do not find Mr. Fermo personally liable for any of the financial remedies ordered by the Tribunal. Factors that I have considered in the exercise of this discretion also include the fact that Mr. Fermo is no longer employed by the respondent company, and that the other allegations relating to his conduct have not been proven by the applicant.
128However, since Mr. Fermo is no longer employed by Herman Miller, and he will not benefit from the training that I have ordered I find that it is appropriate that he be directed to undergo some human rights training, as will be set out below.
Order
129I find that the respondents infringed the applicant’s rights under the Code by terminating him as reprisal for asserting his right to be free from discrimination in employment. I also find that Herman Miller failed to reasonably and adequately respond to the allegations of discrimination and harassment that were raised by the applicant.
130The Tribunal Orders:
(a) Within 30 days of this Decision, Herman Miller Canada Inc. will pay $55,799.70 as compensation for lost wages, less all required statutory deductions and withholdings;
(b) Within 30 days of this Decision, Herman Miller Canada Inc. will pay $15,000 to the applicant as compensation for injury to his dignity, feelings and self-respect;
(c) Herman Miller Canada Inc. shall pay to the applicant pre-judgment interest running from March 30, 2010, the date the applicant’s employment ceased, on the sum at paragraph a) and b) above, calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;
(d) Herman Miller Canada Inc. shall pay the applicant post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act from the date that is 30 days after the date of this Decision;
(e) Within 120 days from the date of this Decision, Herman Miller Canada Inc. shall confirm to the applicant in writing that it has retained a human rights expert of its choosing who has;
(i) assisted with the review and revision of its human rights policies, and that a copy of the revised human rights policies has been distributed to all of its Ontario employees; and
(ii) trained all of its Ontario employees holding the rank of manager or higher, and any human resources employees with respect to the revised human rights policy, the Code and how to adequately respond to allegations of harassment and discrimination.
(f) Within 60 days from the date of this Decision, Corrado Fermo shall confirm to the applicant in writing that he has completed the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission which is available online at: http://www.ohrc.on.ca/hr101/.
Dated at Toronto, this 18th day of April, 2013.
“Signed by”
Geneviève Debané
Vice-chair