HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Syed Naqvi
Applicant
-and-
The Brick Warehouse LP
Respondent
DECISION
Adjudicator: Douglas Sanderson
Date: May 16, 2013
Citation: 2013 HRTO 844
Indexed as: Naqvi v. The Brick Warehouse LP
APPEARANCES
Syed Naqvi, Applicant
Kirryn Hashmi, Counsel
The Brick Warehouse LP, Respondent
Melissa Seal, Counsel
1This is an Application filed on April 6, 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 creed.
2In his Application, the applicant, who identifies himself as Muslim, alleged that he suffered discrimination with respect to his employment with the respondent when the respondent informed him that he was not entitled to attend Friday prayers on March 26, 2009 and when the respondent terminated his employment on April 7, 2010. The applicant also alleged that the respondent denied him benefits available to other employees because of his creed. In his Reply, the applicant alleged that the respondent forced him to work on Eid, an important Muslim festival. In its Response, the respondent denied that it forbade the applicant from attending Friday prayers and asserted that it dismissed the applicant because of poor sales performance. The hearing in this matter was held on December 19 and 20, 2012 in Toronto.
TIMELINESS
3The respondent raised the issue of timeliness during its closing argument for the first time in this proceeding. The relevant sections of the Code are sections 34(1) and (2) which state as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
4The applicant filed the Application on April 6, 2011. The respondent therefore submitted that the only allegation that fell within the one-year time limit set out in section 34(1) of the Code was in respect of the termination of his employment, which occurred on April 7, 2010. The respondent further submitted that should the Tribunal find that the termination of the applicant’s employment did not violate the Code, then the allegations regarding incidents occurring prior to April 6, 2010 are untimely because there would be no timely incident to complete a series under section 34(1)(b) of the Code.
5The applicant did not address the respondent’s submissions regarding timeliness in his reply submissions.
6The Tribunal cannot deal with allegations of incidents occurring outside of the one-year time limit set out in section 34(1) of the Code because they are outside the Tribunal’s jurisdiction. Although the respondent’s submissions regarding timeliness came after the Tribunal heard all the evidence of the merits of this matter, the Tribunal must first determine whether it has jurisdiction to rule on the allegedly untimely allegations. The applicant filed the application on April 6, 2011; therefore, the incidents alleged to have occurred prior to April 6, 2010 fall outside of the one-year time limit set out in section 34(1)(a). Accordingly, I must decide whether the applicant’s allegations amount to a series of incidents, of which one or more occurred on or after April 6, 2010. The applicant provided no explanation for the delay; therefore, there is no basis on which to conclude the delay was incurred in good faith pursuant to section 34(2) of the Code. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25.
7In this case, the applicant alleges that the respondent denied him reasonable accommodation of his religious practices on several occasions, did not provide him with benefits to which he was entitled and did not follow its own performance management process. The applicant asserts that these incidents are discriminatory in themselves, but also form the basis for inferring that the respondent dismissed him because of his creed. In these circumstances, I find it necessary to consider the evidence regarding these allegations in order to determine whether they amount to a series of incidents under section 34(1)(b) of the Code.
CREDIBILITY
8The applicant testified on his own behalf and Bill MacKay, Mohammed Haq, Tom Stenton, Wajid Farooq, Mohammed Rehman, Javed Agha, and Salman Nazir testified for the respondent. The applicant and the respondent each tendered a book of documents, respectively containing 13 and 14 documents. Many of the facts were not in dispute, but where I was required to assess credibility I applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
THE EVIDENCE
9The applicant began his employment with the respondent on or about August 10, 2009 at the respondent’s store located at Highway 401 and Weston Road (the "Weston Road store"). The applicant was a commissioned salesperson in the respondent's electronics department. The respondent guaranteed commissioned salespeople a minimum of $9.50 per hour, but if their sales generated commissions exceeding that rate they received the commissions. At the time of hire, the respondent's salespeople were expected to sell warrantees equivalent to 8.5% of their total sales. This warranty target increased to 9.5% in February of 2010. The applicant worked five days a week, Friday through Tuesday with Wednesday and Thursdays off.
10The applicant testified that as a Muslim, he is required to observe several practices, including praying five times a day, attending prayers on Friday afternoons and observing Eid, an important holy festival. The evidence was that during the applicant’s employment with the respondent seven of the salespeople in the respondent's electronics and furniture departments were Muslim men who attended prayers Friday afternoon. All the witnesses testified that the practice on Friday afternoons was for the employees wishing to attend prayers to inform management that they were leaving, in order to ensure coverage on the sales floor and to ensure the respondent could account for the whereabouts of its employees, and then to proceed to the mosque. Mssrs. Haq, Farooq, Rehman, and Nazir were all salespeople at the Western Road store during applicant's employment and each identified himself as a Muslim who attended Friday prayers. They all testified that attending Friday prayers had never been a problem for them during their employment with the respondent and all of them were currently employed or previously had been employed there for several years.
Eid
11The evidence was that Eid al-Fitr fell on Sunday, September 28, 2009. The applicant testified that the respondent held a “mega sale" that weekend. Tom Stenton and Bill MacKay, respectively the Store Manager and General Sales Manager of the Western Road store at the material time agreed that the respondent often holds sales, particularly in September, and conceded that a sale may well have occurred over Eid in September 2009, although neither specifically recalled when Eid fell in 2009. The applicant testified that there was pressure to make sales and he was required to work, but did not indicate whether he asked for the day off.
12Mssrs. Stenton and McKay testified that the practice developed at the Western Road store was for employees to advise management if they wanted to take a day off for Eid, which they understood to be an important occasion for Muslims. Mssrs. Stanton and McKay testified that Muslim employees were not required to work on Eid if they did not wish to. Mr. MacKay's evidence was that some Muslim employees chose not to work on Eid days, while others would come in later in the day after the feast in the morning. Mssrs. Haq, Farooq, Rehman, Agha and Nazir all testified that the respondent would give them Eid off if they asked for it, even if there was a sales event scheduled. Mssrs. Farooq, Rehman and Agha also testified that they came into work on Eid after meeting their religious responsibilities, when a sales event was scheduled, as it was an opportunity to make money.
13Eid al-Adha fell on Friday, November 27, 2009 and the respondent scheduled an "Early Boxing Day Sale, VIP Offer" on that date. Both the applicant and Mr. Stenton testified that they spoke about the sale sometime prior to November 27, 2009. The applicant's evidence was that Mr. Stenton advised him that a big sales event was upcoming and it was important to make sales that day. According to the applicant, Mr. Stenton asked the applicant what his plans were for the sale and the applicant responded that he was planning to celebrate Eid. The applicant's evidence was that Mr. Stenton indicated the other Muslim salespeople were working that day and that the results would determine who would be on his team. Consequently, the applicant worked on November 27, 2009, i.e., Eid al-Adha.
14Mr. Stenton’s evidence, given in cross-examination, was that the applicant asked for November 27, 2009 off and he and the applicant discussed the request. Mr. Stenton explained that the sale scheduled on November 27, 2009 was a VIP sale and depended on staff to invite customers, friends and family members for success. Mr. Stenton stated that he advised the applicant that the event would be busy and could be a great sales day. Mr. Stenton's evidence, however, was that he did not prevent the applicant from taking the day off. Mr. Stenton denied that he informed the applicant that the results from that sale would determine "who is on his team". Mr. Stenton did not recall if the applicant worked that day or not.
15In my view, Mr. Stenton's account is largely consistent with the applicant’s on this issue. The applicant wanted to take November 27, 2009 off to celebrate Eid and Mr. Stenton encouraged the applicant to consider working that day. The evidence was that the sale in November 27, 2009 was one of several the respondent holds every year and I accept Mr. Stenton's evidence that there is always pressure to deliver sales results in the respondent's business. There is nothing before me that indicates that the sale on November 27, 2009 was any more important than any other sale such that the sales results from this particular sale would affect the applicant's job security. Accordingly, I find it unlikely that Mr. Stenton advised the applicant that the sales results would determine "who is on his team". Nonetheless, Mr. Stenton did not explicitly grant or deny the applicant’s request not to work on November 27, 2009. In the circumstances, it seems more likely than not the applicant felt it was in his best interests, from an employment perspective, to work on November 27, 2009.
March 26, 2010
16The applicant testified that he went to Friday prayers with his colleague Mohammed Alam on March 26, 2010. The applicant stated that he understood that Mr. Alam had received permission to leave from Mr. Stenton; therefore, he went out to his car and they drove to the mosque. The applicant's evidence was that he, Mr. Alam and a woman named Sadia were working that day. Sadia did not attend Friday prayers. According to the applicant, the floor was empty of customers when he left.
17When the applicant and Mr. Alam returned to the store, they were each paged to see Mr. Stenton. The applicant's evidence was Mr. Alam met with Mr. Stenton first, and after the meeting he advised the applicant that Mr. Stenton said that they were not allowed to go to Friday prayer. The applicant testified that he proceeded to Mr. Stenton's office where Mr. Stenton and "Ryan" were waiting. Mr. Stenton informed the applicant that he left the floor without notice and left Sadia alone. According to the applicant, Mr. Stenton advised the applicant to make alternative arrangements for prayer. The applicant replied that he could not and that prayer was only an hour. In any event, the applicant understood that he could no longer attend Friday prayers. The applicant acknowledged that he did go for prayer the following Friday, but explained that Mr. McKay was on the floor that day and Mr. Stenton was on vacation.
18Mr. Stenton's evidence was that on March 26, 2010 a customer complained that the salesperson left in the midst of discussing the sale. Mr. Stenton testified that neither Mr. Alam nor the applicant advised him that they were leaving for the mosque. Mr. Stenton stated that he had another salesperson assist the customer and spoke to the applicant and Mr. Alam, individually, when they returned. Mr. Stenton's evidence was that when he met the applicant he explained the customer complaint. According to Mr. Stenton, the applicant denied leaving a customer. Mr. Stenton stated that he reminded the applicant he must inform him when he is leaving for prayer, and the applicant replied that he was forbidding him from going to prayer. Mr. Stenton testified that he advised the applicant that this was not correct, but that the applicant had to inform management before leaving. According to Mr. Stenton, the applicant made no notable response. Mr. Stenton stated that the applicant was not disciplined. Rather Mr. Stenton merely reminded the applicant of the process to follow when going to prayer. In cross-examination, Mr. Stenton stated that he did not inform Mr. MacKay of the incident because it was "not that big a deal" and felt no need to advise Mr. MacKay.
19I find, on a balance of probabilities, that Mr. Stenton did not advise the applicant that he could no longer leave work to attend Friday prayers. Prohibiting the applicant from attending Friday prayers after the incident on March 26, 2010 would have required Mr. Stenton to communicate this decision to other managers and there is no evidence of such a communication or of any formal disciplinary measures. In my view, Mr. Stenton’s evidence that the incident was "no big deal", only requiring a reminder to the applicant, accurately reflects the severity of the situation. On the other hand, preventing the applicant from attending Friday prayers would have been significantly disproportionate, particularly so since Mr. Stenton was well aware of the importance of this practice for Muslims. I also note that the applicant identified three witnesses: Mr. Alam, "Ryan" and Sadia Afreen, whom he indicated would testify to corroborate his account of this incident. Ultimately, the applicant called none of these witnesses and made only last-minute attempts to contact them. See Naqvi v. The Brick Warehouse LP, 2012 HRTO 2317. Finally, the applicant did attend Friday prayers the next Friday he worked, which is inconsistent with Mr. Stenton taking any steps to prevent the applicant from attending Friday prayers.
Termination of Employment
20It is common ground that the respondent terminated the applicant's employment, with two weeks’ notice, on April 7, 2010 and provided him with a letter confirming this decision. The letter, signed by Mr. Stenton, indicates the respondent advised him on two occasions, March 5 and April 2, 2010, that his performance was not meeting expectations. The second letter notes that the applicant would have until May 1, 2010 to improve his performance, but the applicant showed no signs of improvement despite attempts to assist him. Consequently, the respondent decided that it would terminate the applicant's employment with two weeks’ notice on April 7, 2010.
21Both parties referred to a document entitled "Presidents Cup Report: Top 100 Salesperson by Net Sales" for the Western Road store. This document shows the sales results of the respondent’s salespeople working in the furniture and electronics departments from January to the end of April 2010. In his testimony, the applicant noted that his sales increased significantly in March 2010 – by about $19,000.00. The applicant further noted that he was ranked tenth out of 19 salespeople and the respondent did not dismiss several of the employees with weaker sales results. The applicant acknowledged that Mr. McKay had regular meetings with salespeople regarding sales and that Mr. MacKay provided him with two performance management letters, known in the respondent’s parlance as "Phase" letters. The Phase 1 letter advised the applicant that his sales volume was below expectations and had been below expectations for the past two months and also that his warranty sales were the lowest in the department and below standard. In the letter, the respondent directed the applicant to take certain actions to improve his sales and warns of further "progressive action" should he not meet expectations by April 1, 2010. The Phase 2 letter acknowledged that the applicant's sales have improved and the respondent would not have to "top-up" his income (i.e., to $9.50/hour). The letter noted, however, that the applicant’s warranty sales continued to be below expectations. The respondent again directed the applicant to take steps to address his sales efficiencies by May 1, 2010, failing which he faced further progressive action.
22The applicant's evidence, however, was that Mr. McKay delivered the Phase 1 letter dated March 5, 2010, and the Phase 2 letter, dated April 2, 2010, at the same time, i.e., on April 2, 2010. According to the applicant, he was serving a customer when Mr. McKay called him into his office. The applicant therefore excused himself from the customer and proceeded to Mr. MacKay's office, where he presented the applicant with both documents. The applicant stated that Mr. McKay said that the letters were merely a formality; therefore, he did not complain about receiving them at the same time. He returned to the customer after receiving the letters.
23Mr. MacKay’s evidence was that as the General Sales Manager he was responsible for managing sales performance and was required to review sales results on a monthly basis. Mr. Mackay stated that an "Annual Scorecard" is developed for each salesperson that sets out their monthly goals and actual results. The Annual Scorecards regarding the applicant indicate that he met his sales volumes and warranty targets only once each, in March 2010 and September 2009 respectively. Mr. MacKay testified that he would discuss sales results with each salesperson at the beginning of each month. His evidence was that once concern arises regarding a salesperson's performance, the performance management process requires him to speak to the salesperson in question regarding “Minimal Acceptable Standards”. If performance does not improve, the salesperson receives a Phase 1 and then a Phase 2 performance management letter, which set out what the salesperson must do to improve sales and maintain his or her employment with the respondent. Mr. MacKay stated that these corrective action steps must be taken before the fifth of each month and that he followed this process with the applicant.
24Mr. MacKay testified that he recalled delivering the Phase 1 letter to the applicant on or about the date on the letter, but that his recall of delivering the Phase 2 letter to the applicant was vague, as two or three other salespeople were also receiving performance management at that time. In any event, he reiterated that the performance management letters had to be delivered by the fifth of the month. Mr. MacKay noted, however, that he did not actually give the applicant a copy of the Phase 1 letter when he met with him in March. Rather, the applicant asked for copy at the time he received the Phase 2 letter to Mr. MacKay provided him with a copy of both letters. Mr. McKay noted that salespeople usually do not ask for copies of performance management letters.
25The applicant’s evidence regarding the delivery of the performance management letters on April 2, 2010 was much more detailed than Mr. MacKay’s and Mr. MacKay acknowledged that his recall of that incident was vague. I find that Mr. MacKay provided copies of both the Phase 1 and Phase 2 letters on April 2, 2010, which Mr. MacKay acknowledged in any event. I also find, however, that Mr. MacKay discussed the applicant’s poor sales performance with him and that the applicant was well aware that the respondent had concerns about his performance. In that regard, given the respondent’s practices for monitoring sales performance, I find that it is more likely than not that Mr. MacKay did advise the applicant that he needed to improve his performance or face progressive corrective action in early March 2010. On this point, Mr. MacKay was very clear that he did have a performance management meeting with the applicant in March 2010, whereas the applicant said very little about any performance discussions in that period.
26Mr. MacKay stated that Mr. Stenton called him while he was on vacation and informed him that they needed to act regarding the performance action plans. Mr. Stenton also advised him that four employees were to be dismissed. Mr. MacKay therefore informed Mr. Stenton where to retrieve the files from his computer. When he returned to work, the affected employees – two in electronics and two in furniture – had already been notified of the termination of their employment. Mr. MacKay confirmed that 2010 was a slow year in retail and that sales were low in the Weston Road store at the time. Mr. MacKay testified that the decision to terminate the employment of the four salespersons’ employment was based on sales results.
27Mr. Stenton's evidence was that he concluded that the store was carrying too many salespeople in April 2010 and in cross-examination Mr. Stenton stated that April is the worst month for sales. He therefore called Mr. MacKay, who was on vacation, in order to access his performance management files. Mr. Stenton selected the four poorest performers – two in each of the electronics and furniture departments – and recommended to human resources that the respondent terminate their employment. Mr. Stenton stated that human resources concurred with his recommendation and he informed the affected employees, including the applicant, of the decision. Mr. Stenton explained that of the nine salespeople ranked below the applicant in the Presidents Cup Report for Western Road between January and April 2010, two were dismissed along with the applicant; one had given notice of his resignation; one had resigned in January; two (who are strong salespeople) were absent on extended leaves overseas; one was part-time; another was transferring to the Mississauga store and one, a furniture salesperson (where sales targets are different), showed promise in add-on sales and had not been subject to performance management. According to Mr. Stenton, the absence of two of his better salespeople partially explained the applicant’s increase in sales volume in March as there were more opportunities for sales. In cross-examination, Mr. Stenton noted that these salespeople were returning in April, which would eliminate any advantage the applicant had enjoyed.
28The applicant attempted to establish in cross-examination of Mssrs. Faroog, Rehman, Nazir, Agha and Stenton that the respondent hired two salespeople shortly after the termination of the applicant’s employment. Mr. Rehman believed that two salespeople may have started after the applicant departed, but was not sure when. The other witnesses did not recall that the respondent hired any salespeople around the time the applicant left its employ. In my view, there is insufficient evidence for me to find that the respondent hired new salespeople shortly after the applicant’s dismissal.
Post-termination Commissions
29The applicant was given two weeks’ notice of the termination of his employment and he chose to work during the notice period. The applicant’s evidence was that he made some sales in the notice period, but did not receive the commissions for sales delivered after April 22, 2010. The applicant’s Statement of Earnings and Deduction for April 8 to April 22, 2010 indicate a commission of $389.92 for the period. The applicant testified that he asked Mr. MacKay about the commission, who said that he would investigate the matter for the applicant. Ultimately, Mr. MacKay advised the applicant that he would not receive the commission.
30Mr. Mackay did not testify about any post-termination commissions the applicant may have earned. In cross-examination, Mr. Stenton acknowledged that the applicant had “written” a deal in this period, but the merchandise had not been delivered and he was unsure if it was ever delivered. In re-examination, Mr. Stenton explained that commissions are only paid after the merchandise in question is delivered. He also explained that commissions are paid on delivered merchandise up to the end of a salesperson’s final pay period. Accordingly, a commission would not be paid on merchandise delivered after the final pay period, but on the other hand, Mr. Stenton noted that commissions are also not deducted for returned merchandise after the final pay period, as they would in the normal course of employment. The respondent adduced the applicant’s employment contract, which confirmed Mr. Stenton’s description of how commission is paid.
Benefits
31The applicant’s evidence was that he did not receive benefits during the time he was employed by the respondent. The applicant stated that after working for the respondent for about five months, he learned that other employees were receiving benefits cards and were being reimbursed for medical and dental expenses. The applicant stated that he spoke to Mr. MacKay, who filled out a form, but he did not receive a benefits card. The applicant noted that he suffered a painful dental problem in March and February 2010 and had to take time off. The applicant adduced a document entitled "Brick Warehouse LP Designation of Beneficiary and Dependent Information", which appears to have been printed from the respondent's internet or intranet site on March 21, 2010. The applicant listed his wife and children's names on the form.
32Mr. MacKay testified that salespeople become entitled to health and dental benefits after six months of employment and life insurance after three months. Mr. McKay stated that benefits cards are sent by mail to each employee at their store from head office and arrive frequently. Mr. MacKay's evidence was that he or the Store Manager would distribute mail, but he did not specifically recall providing the applicant with the benefit card or a benefit package. Mr. MacKay testified that the applicant came to him once to fill out a form to add his children to his benefits plan, but did not recall when this occurred. The respondent also adduced a form entitled "The Brick Commitment" which confirms, amongst other things, that employees are automatically enrolled in the respondent's "core" benefit plan after six months of employment. The applicant acknowledged receipt of this information by signing it on August 7, 2009.
ANALYSIS AND DECISION
33In my view, it is appropriate to first rule on the timely allegations regarding the termination of the applicant’s employment and the applicant’s post-termination commissions.
34The relevant section of the Code are as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
35The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent terminated his employment and denied him commissions because of his creed. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
36The evidence does not support the inference that the applicant's creed was a factor in the decision to terminate his employment. The applicant argued that the respondent’s concerns about the applicant’s performance were a pretext and that the respondent “concocted” this story to justify dismissing the applicant because of his creed. However, there was no evidence that the applicant's religious practices were an issue for the respondent. The applicant was one of several Muslim salespeople at the Western Road store and the evidence was that the respondent accommodated the religious practices of its Muslim employees as a matter of course and without difficulty. Such evidence does not, of itself, negate the possibility that the respondent discriminated against the applicant because of his creed. The applicant did not, however, provide any evidence indicating why, in this environment of apparent tolerance of Muslim religious practices, the respondent would single him out and did not, in my view, establish that the respondent treated him differently because of his religion. The respondent did not prohibit him from attending Friday prayers and there is no evidence that he asked to take September 20, 2009 to celebrate Eid al-Fitr. The applicant did work on November 27, 2009, although he had asked for the day off to celebrate Eid al-Adha. In my view, this unfortunate and arguably improper result was caused by unclear communication on Mr. Stenton’s part and, it would seem, the applicant’s inexperience regarding the respondent’s accommodation practices, and does not establish a link between the applicant’s religion and his dismissal.
37On the other hand, the evidence is that the applicant was not a successful salesperson while employed by the respondent and rarely met sales targets. The respondent did not invent the applicant’s poor sales results and there is no dispute that Mr. MacKay discussed the applicant’s results with him on a regular basis. Regardless of when he received the Phase 1 and Phase 2 letters, the applicant did not dispute the accuracy of their contents. I find that the respondent’s concerns about the applicant’s performance were valid and not a pretext. Mr. Stenton's uncontradicted evidence was that sales were low (corroborated by Mr. MacKay) and the Weston Road store was overstaffed with salespeople in April 2010. He therefore decided to recommend the dismissal of the two lowest performing salespeople in each of the furniture and electronics departments. I also accept Mr. Stenton's evidence, which was also not contradicted, explaining why the applicant was chosen for dismissal when others appeared to have weaker sales results on the Presidents Cup Report. The decision to terminate the applicant’s employment cut short the period he expected to have to improve his performance. This may have been unfair, but in the absence of evidence linking the decision to his creed, I cannot find that it was a breach of the Code. Accordingly I find that the respondent has established a credible non-discriminatory reason for terminating the applicant’s employment and this allegation is dismissed.
Post-termination Commissions
38The applicant did not establish that he was entitled to receive commissions for the sales he made in the two week notice period. His evidence was that the commission in question was in respect of a sale for which delivery occurred after April 22, 2010, his last day of employment. Mr. Stenton’s evidence, confirmed by the applicant’s employment contract, was that commissions were paid only on delivered merchandise up to and including the last of day of the pay period in which a salesperson’s employment is terminated. Consequently, the applicant was not entitled to the commission on any merchandise delivered (assuming it was) after April 22, 2010, pursuant to the terms of his employment contract. In any event, the applicant gave no evidence that connected the sales he made in the notice period to his creed. Accordingly, there is no proper basis on which to find that the respondent violated the Code when it did not pay the applicant commissions on sales he made during the notice period.
Dismiss for Delay
39The Tribunal has found that an allegation which has no reasonable prospect of success cannot form part of a series of incidents for the purposes of section 34(1) of the Code. See: Chappell v. Securitas Canada Limited, 2012 HRTO 874 and Garland v. Canusa-CPS, 2012 HRTO 1309, which were decided following summary hearings held pursuant to Rule 19A of the Tribunal’s Rules of Procedure. In my view, the principle that unmeritorious allegations cannot amount to incidents under section 34(1) of the Code applies equally to allegations the Tribunal finds have not been proven on a balance of probabilities following a full merits hearing. Accordingly, having dismissed the applicant’s allegations regarding the termination of his employment and post-termination commissions, I find that these allegations do not form part of a series for the purposes of section 34(1)(b). Without a timely allegation to complete the series of incidents, I find that the allegations occurring before April 6, 2010 are untimely and therefore outside of the Tribunal’s jurisdiction. Again, the applicant provided no explanation for the delay; therefore, I cannot conclude that the delay was incurred in good faith, pursuant to section 34(2) and these allegations are dismissed.
40In light of the foregoing, the Application is dismissed.
Dated at Toronto, this 16th day of May, 2013.
“Signed by”
Douglas Sanderson
Vice-chair