HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rami Gerro
Applicant
-and-
Aditya Birla Minacs Worldwide Inc.
Respondent
DECISION
Adjudicator: Kathleen Martin
Indexed as: Gerro v. Aditya Birla Minacs Worldwide Inc.
APPEARANCES
Rami Gero, Applicant
Self-represented
Aditya Biria Minacs Worldwide Inc., Respondent
Jonathan Maier, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability.
2By Case Assessment Direction dated August 24, 2012, the Tribunal directed that a summary hearing be held as to whether or not the Application should be dismissed.
3On November 29, 2012, a summary hearing was held and both parties made oral submissions.
4I have determined that the Application should be dismissed. My reasons follow.
FACTUAL BACKGROUND
5The Application arises out of the applicant’s attempt to be rehired by a call centre operated by the respondent in the spring of 2012.
6The applicant had previously worked for the respondent as a customer service representative during two earlier periods: June 16, 2008 to October 11, 2008; and February 1, 2010 to January 2011. At the end of each period the applicant quit his employment.
7On March 25, 2012, there was a posting for an opening for the same position with the respondent. The applicant applied but received no response. The applicant met his previous floor managers and after a few emails and follow up calls, one of the floor managers called the applicant and advised that an individual in HR (which I presume refers to human resources) emailed the floor manager regarding a verbal warning the applicant had received when last employed. In his call with the applicant, the floor manager expressed that he remembered that it was regarding the “washroom problem” and that he would reply to the person in human resources. The applicant was subsequently told that he did not get the job.
8The applicant alleges that he was discriminated against on the basis of disability because he did not get the job because of the “washroom problem”.
9A Response was filed. The respondent states that as a customer service representative the applicant was entitled to take a regularly scheduled meal period and two scheduled breaks along with additional breaks to use the washroom provided that he logged out. The respondent states that during the applicant’s last period of employment he received a verbal warning for taking 17 unauthorized breaks and returning late from a scheduled break on 10 occasions. The respondent states that this discipline was not because of any need to use the washroom but rather because he failed to notify his team leader when he took an unscheduled break or adhere to his scheduled break.
10The respondent states that the applicant did not accept the discipline he received and discussed the matter with the team leader. During the conversation, the team leader suggested that if the applicant had a medical condition that required additional breaks, he could submit a medical note in support and the request would be considered by the respondent’s disability management system. The applicant responded that he was 56 years old and that he sometimes needed to use the washroom during his shift. The applicant did not provide the respondent with any information.
11Among other things, the respondent disputes that the applicant has a disability and/or argues that the applicant violated his own duty to cooperate in any accommodation process by refusing to provide further information or taking any further steps to explore the issue with the respondent.
12With respect to his 2012 application for employment, the respondent states that the human resources manager made the initial determination to not hire the applicant based on the fact that he had quit on two previous occasions. When asked to reconsider, the human resources manager reviewed the applicant’s previous personnel file and determined that he had been disciplined previously for using “unauthorized unpaid breaks as washroom breaks”. The manager also looked into whether there was any connection between this matter and the disclosure of a disability and request for accommodation and received confirmation from the disability manager that the applicant had never alleged a disability. After her review of the foregoing, the human resources manager confirmed the original decision to not hire the applicant citing the applicant’s past resignations and prior discipline.
13In accordance with the Tribunal’s usual procedures a copy of the Response was delivered to the applicant. The applicant was reminded that the Rules require an applicant who intends to prove a version of the facts different from those set out in the Response to include those facts in a reply.
14The applicant did not file a Reply.
DECISION AND ANALYSIS
15In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about the summary hearing process at paras. 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
16In this case, in the Case Assessment Direction directing a summary hearing, the Tribunal stated that having reviewed the Application, it appeared that the applicant may be unable to prove a link between the event (i.e. the hiring decision) and the alleged ground. At the outset of the summary hearing, I directed the applicant to make submissions addressing this issue but also to make submissions on the issues raised in the Response including the issue of disability, on what basis the respondent was aware of his disability and his reply, if any, to the respondent’s explanation as to why the applicant was not rehired.
17The applicant submits that he has a disability which he characterized as a “need to go to the washroom based on age”. The applicant submits that the respondent was aware of this disability because he advised the team leader of his need to take washroom breaks during his employment in 2010. The applicant states that he refused to provide a doctor’s note although he suggests this refusal was justified because he is not required to do so by law. He states that his requirement to take washroom breaks is “normal for everybody [as they age]…this is not a big issue”. The applicant states that he has no evidence to dispute the respondent’s evidence as to why the applicant was not rehired in 2012 (as referenced in paragraph 12 above).
18The issue is this case is whether or not there is a link between the respondent’s decision not to hire the applicant in 2012 and a disability within the meaning of the Code (or other prohibited ground). I find that there is no reasonable prospect that the applicant can establish this link.
19Based on the applicant’s submissions, I am not convinced the applicant will be able to establish a disability within the meaning of the Code given that by his own admission, he views his “condition” as normal for every one of his age. While the applicant did not seek to expand the Application to include age, even if I consider his condition as related to age and disability, I remain unconvinced that his mere assertion of this condition would be sufficient to engage the Code. I note that the applicant did not point to any medical information or other evidence in support of his assertion.
20However, even assuming without finding that the applicant has a disability within the meaning of the Code, there appears to be no reasonable prospect of establishing that the respondent was aware of this disability (or condition related to age/disability) such that the Code would be engaged. While the applicant was disciplined in 2010 for schedule adherence issues related to washroom breaks, the applicant does not appear to dispute that the discipline was based on not following proper protocol in taking washroom breaks and not the frequency of breaks. When the applicant expressed disagreement with the discipline based on his “condition”, it was recommended that he bring in a medical note but he elected not to do so. In these circumstances, I find that there is no reasonable prospect that the applicant can establish that the respondent had awareness of a “disability” or age-related need because the applicant chose to not clarify it at the time either through a medical note or otherwise.
21Finally, in my view there is no reasonable prospect that the applicant can establish a link between his disability or age-related need and the hiring in 2012. The applicant bases his case on the text message referencing the schedule adherence issue. As indicated above, this discipline was based on not following proper protocol. The reference to the schedule adherence issue in and of itself does not suggest that the respondent was giving consideration to his “disability”. In fact, even the applicant acknowledged this during the summary hearing by stating that the link was “not so strong”.
22Further, the applicant states that he has no evidence to dispute the explanation provided in the Response as to why he was rejected for employment in 2012 (the fact that he quit twice in the past; and had a schedule adherence issue unrelated to any claim of disability). On its face, this explanation seems reasonable. While not proven in evidence, the applicant’s concession that he has no evidence to dispute it is a further consideration in my conclusion that there is no reasonable prospect that the applicant can succeed with the Application.
23For all of the above reasons, the Application is dismissed on the basis that there is no reasonable prospect that it will succeed.
Dated at Toronto, this 10^th^ day of May, 2013.
”Signed by”_______________________
Kathleen Martin
Vice-chair