Benjamin Ford v. CLV Group Inc., 2014 HRTO 1101

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Benjamin Ford

Applicant

-and-

CLV Group Inc.

Respondent

DECISION

Adjudicator: Brian Eyolfson

Date: July 25, 2014

Citation: 2014 HRTO 1101

Indexed as: Ford v. CLV Group Inc.

APPEARANCES

Benjamin Ford, Applicant

Self-represented

CLV Group Inc., Respondent

Robert Jarrett, Representative

Introduction

1This Application was filed on June 26, 2013, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination in employment on the basis of age.

2In his Application, the applicant explains that he commenced employment with the respondent, CLV Group Inc. (“CLV”), as a cleaner on May 30, 2013. He alleges that, on June 19, 2013, his supervisor called him and told him that his employment was terminated, and that they were “looking for an older gentleman”. According to the Application, the applicant was 20 years old at the time his employment was terminated.

3In its Response to the Application, the respondent submits that the applicant’s employment was terminated after twelve working days, of which the applicant did not show up for three, and did not provide proper notification. The respondent denies the allegations of discrimination and submits that, at no point during the applicant’s employment, or the events leading to his dismissal, did age ever become a factor.

EVIDENCE

4The applicant gave evidence at the hearing, and the respondent called the following individuals as witnesses: Heather Baker, Head Cleaner; Daniel Pommainville, former Area Operations Manager; and, Jovette Fournier, former Property Manager. By agreement of the parties, the respondent’s witnesses testified first. The parties also provided the Tribunal with several documents.

Jovette Fournier

5Ms. Fournier, who is no longer employed by CLV, testified that she hired the applicant as a cleaner, starting May 30, 2013. She referred to a letter of understanding, signed by both her and the applicant on May 29, 2013, which sets out the terms of employment, including a six-month probation period. Ms. Fournier testified that she explained the probationary period to the applicant, and that the applicant also signed an “acknowledgement sheet” confirming that he read a copy of the respondent’s policy handbook. Ms. Fournier also testified that she reviewed the job description for the cleaner position with the applicant, and that he signed a copy of the job description confirming that he read it on May 29, 2013.

6Ms. Fournier testified that she assigned both Daniel Pommainville and Heather Baker to assist with the applicant’s training. She explained that the applicant met with Mr. Pommainville on May 30, 2013, prior to commencing work, and that the applicant was placed with Ms. Baker as she was the senior cleaner and able to show him all of the job requirements.

7Ms. Fournier testified that she became aware that the applicant was having a difficult time with the duties of the job, but that everything possible was done to ensure his success. She explained that Ms. Baker showed him, as opposed to just telling him, what to do. Ms. Fournier also testified that the applicant started to be absent from work quite often, without calling in or providing a reason for being absent.

8Ms. Fournier testified that the applicant showed a lot of difficulties that were brought forward by Mr. Pommainville and Ms. Baker, and that it was just not a “good fit”, and that is why they let the applicant go, and not for any other reason. She testified that Ms. Baker had raised some concerns about the applicant, and that, during his third week of employment, the applicant did not show up for work for three days in a row. Ms. Fournier testified that the applicant also did not show up the following week. She explained that they received a call and required cleaning staff at a site. They needed to provide the best service they could so they had to make a decision regarding the applicant. She testified that they used a temporary cleaner to perform the duties and she instructed Mr. Pommainville to let the applicant go.

9Ms. Fournier referred to an email that she sent to the respondent’s payroll administrator on June 19, 2013, indicating that they would be letting the applicant go, that he was “not suitable to the job requirement”, and that Friday, June 21, 2013 would be his last day. She testified that June 21, 2013 was chosen for payroll purposes.

Dan Pommainville

10Mr. Pommainville testified that he is no longer employed by the respondent, but that he was in charge of looking after all of the cleaners with the respondent. He explained that when the applicant was hired, he was to work under Ms. Baker who was to assess his work until he could work by himself.

11Mr. Pommainville testified that, during the first couple of days, Ms. Baker explained to him what was going on and that she noticed “little things” that could be worked out. She continued to work with the applicant and to teach him things.

12Mr. Pommainville was referred to a written statement signed by him, dated July 25, 2013. A copy of the statement was provided with the respondent’s Response to the Application. Mr. Pommainville reviewed his statement and testified that its contents are correct. His statement includes the following assertions:

Within the first three days of employment, Ms. Baker told Mr. Pommainville that the applicant did not fully understand his position, and had a difficult time with most jobs she told him to do.

After a few days, the applicant refused to properly complete tasks as instructed, and got into an altercation with Ms. Baker.

Ms. Baker brought to the attention of Mr. Pommainville and Ms. Fournier that the applicant was not suited for the position, and was using profanity and muttering inappropriate things under his breath. Ms. Baker also said she was not going to work with or around the applicant, and that she was uncomfortable with him as a co-worker.

The same day, the applicant came into Mr. Pommainville’s office and stated that: the job was not for him; it was too much work; he did not want to come in so early; he was not going to work weekends; he did not like having to work at “this speed”; and, he wished to seek other employment. The applicant then “resigned his 1 piece of CLV uniform (HAT)” by pushing it across a desk.

Mr. Pommainville gave the applicant a second chance and opportunity to stay on with CLV, but work independently to see if he was capable of providing high quality work while being alone and unsupervised. During the next week, the applicant took three days off work while still under his probationary period.

On the day the applicant was let go, they had a large problem in one of the buildings that the applicant was to be cleaning and he was not on site. Mr. Pommainville informed Ms. Fournier and she advised him to call the applicant and inform him that he was “no longer required to show up for work with CLV the next week.”

On the phone call, which was after hours, Mr. Pommainville said, “Hello Ben its Daniel.” The applicant replied, “I know what you’re calling about, I know, I know.” Mr. Pommainville stated that unfortunately his help was no longer needed. The applicant said, “Ya, I know, I know.” After that the applicant asked him what it was he did. Mr. Pommainville said that it was “just not for him.” The applicant then asked him to give him a reference.

13At the hearing, Mr. Pommainville testified that Ms. Baker said it was difficult for the applicant to understand his job and simple tasks she was giving him, but that he is very forgiving. He also testified that he did not know if it was because of Ms. Baker’s workload, but that he trusts her judgment, and if she says he is not going to work out, he trusts that it is not going to work out. He also testified that there was an altercation between the applicant and Ms. Baker, and she said that she could not work with him. They gave the applicant his own building to see where it would go from there.

14Mr. Pommainville testified that the applicant came into his office and said he did not want to work and pushed his hat across the table. Mr. Pommainville said just try it for a day or two, to see if it works out on his own, because the problem occurred with Ms. Baker. He told the applicant to go home, think about it, and show up on Monday. The applicant did show up on the following Monday. He testified, however, that the work was not getting done to their standards, and he told that to Ms. Fournier.

15Mr. Pommainville also testified that the applicant called in sick, and did not provide any “medicals”, although they asked him to. The applicant also did not show up the next day, and, although he could not recall, he thought that the applicant did not call in the next day. He also testified that the applicant did not show up for work the following week.

16Mr. Pommainville testified that Ms. Fournier had a conversation with him when the applicant did not show up for a few days, and she told him to just let the applicant know not to come in the next day and to call her. He testified that he did not do hiring and firing, but that Ms. Fournier asked him to call the applicant.

17Mr. Pommainville testified that, in his view, the applicant knew that his employment was going to be terminated. He testified that when he said “hello” to the applicant, he replied, “I know, I know.” He then told the applicant that they no longer needed his help, and the applicant said he knew. He also testified that the applicant asked him for a reference, and he said he would do whatever he could to help.

18Mr. Pommainville testified that he did not refer to a reason for the termination of the applicant’s employment at any time, and that it was up to Ms. Fournier. He testified that he told the applicant to call Ms. Fournier the next day, and that: it had nothing to do with the applicant’s age; he never said anything about age; the applicant’s age was never an issue; and, the applicant’s age never came up during his employment.

19Mr. Pommainville denied that he indicated that he was looking for someone older. He testified that the respondent hires individuals who are young and old and that age does not come into play. He testified that the applicant was dismissed because he did not do the job, and, in his view, the applicant was just not a good fit. It was also a busy time and they needed someone who was dedicated at all times.

20Mr. Pommainville could not recall the day he actually spoke to the applicant. He also testified that the applicant may have called him back after hours, and that it would have been the first day the applicant showed up and said he was calling in sick, which might have been Friday, June 14, 2013 (it appears from the applicant’s time sheets that he may have attended work on June 14, 2013, but went home sick without working).

21In cross-examination, Mr. Pommainville was asked about his signed statement wherein it states that the applicant asked him what it was he did and he said that it was “just not for him”, rather than telling the applicant what he did wrong. He testified that he was only asked to call the applicant and tell him not to come in the next day, and the applicant was supposed to call Ms. Fournier, and he advised the applicant to call her.

Heather Baker

22Ms. Baker testified that she was a senior cleaner with the respondent and Mr. Pommainville was her supervisor. On May 30 and 31, 2013, she was assigned to train the applicant in cleaning a building. She testified that Mr. Pommainville asked her to inform him how the applicant was doing and that she had done that before.

23Ms. Baker testified that she met with the applicant and they went for coffee before starting to clean the building. She testified that she asked him to do simple tasks like sweeping stairwells, and she had to repeat it because it was not done properly. She also asked him to vacuum seven floors, and he came back in 15 minutes and said it was complete. She told him that it takes her an hour or so to do that, and he said that he did every floor, so they walked every floor and stairwell. She testified that she noticed some debris was missed on the second floor, and she told the applicant that he missed some debris and he got upset and said he did not. She testified that he then went off muttering and slammed a glass door, which banged really loud, and he was also swearing.

24Ms. Baker testified that she told Mr. Pommainville that she did not think the applicant would be a good fit because he had trouble following directions and had issues when she asked him to do things, including simple tasks like sweeping and vacuuming. She also testified that she told Mr. Pommainville that she could not work with somebody who is going to lose his temper, and that the applicant made her feel very uncomfortable working with him.

25Ms. Baker testified that Mr. Pommainville said he would speak with the applicant, and he came back to her and told her that the applicant said that she was not telling the truth. She then told Mr. Pommainville that the applicant’s demeanor was violent in slamming doors and swearing, and Mr. Pommainville said he would put the applicant on his own and see how he does.

26Ms. Baker testified that she did not, at any point in any discussion with Mr. Pommainville, say that the applicant’s age was a factor.

27Ms. Baker was also referred to a written statement signed by her, dated August 8, 2013, that was provided with the respondent’s Response to the Application. She reviewed the statement and confirmed that its contents were true.

The applicant

28The applicant testified that he received a phone call from Mr. Pommainville on Wednesday, June 19, 2013 around the lunch hour (12:20 or 12:30 p.m.). He testified that Mr. Pommainville said something like, “I’m sorry Ben I have to do this but we’re just looking for an older gentleman.” The applicant testified that he asked Mr. Pommainville if it was something he did, and Mr. Pommainville said, “No, we are just looking for an older gentleman.” He also testified that on another occasion Mr. Pommainville made remarks about him and his age, agreeing with another individual that, “Yes, he does have a baby’s face.”

29The applicant testified that he did not contact Ms. Fournier after the June 19, 2013 phone conversation, but contacted Mr. Pommainville by email stating that he was not paid for working on June 17 and 18, 2013. He testified that he worked on those days, and performed his duties as a cleaner, but he did not call in to Mr. Pommainville to tell him that he was working. He testified that he was just told to perform his duties as a cleaner, and just show up and not call in. He also testified that he spoke to Mr. Pommainville on June 18, 2013, and asked Mr. Pommainville if he smelled like garbage, because he spilled “garbage juice” on himself. He also testified that was the reason why he was away on June 19, 2013.

30The applicant testified that he knew that his employment was going to be terminated. He also testified more than once that he knew why Mr. Pommainville was calling him on June 19, 2013, and that he knew that Mr. Pommainville was calling him to terminate his employment. He agreed that, at the time he knew his employment was going to be terminated, there was no indication that it was because of age. He also agreed that, at 12:30 p.m. on June 19, 2013, he should have been at work.

ANALYSIS AND DECISION

Relevant Code provisions

31Sections 5(1) and 9 of the Code state as follows:

5(1). Every person has a right to equal treatment with respect to employment without discrimination because of… age.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Assessment of credibility

32To the extent that any issues addressed in this Decision turn on my assessment of the credibility of the parties, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 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.

33I am also guided by factors considered by the 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, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations as to the manner in which the witnesses gave their evidence.

Was the applicant subjected to discrimination on the basis of age when his employment was terminated?

34Having carefully reviewed the parties’ evidence, including the documentary evidence, and considered the parties’ submissions, I find that the applicant has not established on a balance of probabilities that he was subjected to discrimination on the basis of age.

35First, I find that the respondent has clearly established a non-discriminatory basis for the termination of the applicant’s employment. I find that the evidence of the respondent’s three witnesses, who were excluded from the hearing room prior to giving their evidence, was consistent in relation to each other’s evidence. Both Ms. Baker and Mr. Pommainville were consistent in their evidence that Ms. Baker told Mr. Pommainville that there were issues in relation to simple tasks she asked the applicant to do, and that she could not work with the applicant in light of his behavior. They also testified that the applicant was then placed on his own to see how he did. I also find that the evidence of Mr. Pommainville and Ms. Baker is essentially consistent with their written statements signed by them approximately one month and two months, respectively, after their involvement with the events in question.

36Ms. Fournier also testified that she became aware that the applicant was having a difficult time with the duties of the job, and that Ms. Baker had raised some concerns about him. She also testified that the applicant showed a lot of difficulties that were brought forward by both Mr. Pommainville and Ms. Baker, and that it was just not a “good fit”, and that is why they let him go, and not for any other reason.

37Mr. Pommainville testified that, after the applicant was to work on his own, he called in sick, and did not provide any “medicals”, although they asked him to. He also testified that the applicant did not show up for work the following week, and that Ms. Fournier told him to let the applicant know not to come in the next day and to call her. In his signed statement, Mr. Pommainville states that, on the day the applicant was let go, there was a problem in one of the buildings that the applicant was to be cleaning and he was not on site. He informed Ms. Fournier and she advised him to call the applicant and inform him that he was no longer required to show up for work with the respondent.

38Similarly, Ms. Fournier testified that the applicant started to be absent from work quite often, without calling in or providing a reason for being absent. More particularly, during his third week of employment, he did not show up for work for three days in a row, and he also did not show up the following week. She explained that they received a call and required cleaning staff at a site, and had to make a decision regarding the applicant. She testified that she instructed Mr. Pommainville to let the applicant go.

39It appears from the documentary evidence that the applicant last worked on Tuesday, June 11, 2013, and then was sick for three days. Although the applicant testified that he worked on June 17 and 18, 2013, he also testified that he did not call in to Mr. Pommainville to tell him that he was working on those days. The applicant testified that Mr. Pommainville called him to terminate his employment mid-day on Wednesday, June 19, 2013, and he agreed that he should have been at work at the time. I also note that Ms. Fournier’s email confirming that they would be letting the applicant go was sent at 11:17 a.m. on June 19, 2013.

40The applicant was also clear in his evidence that he knew that his employment was going to be terminated before Mr. Pommainville told him so during their telephone conversation on June 19, 2013. Mr. Pommainville also testified that, when he called him, the applicant said, “I know, I know”, before he told the applicant that they no longer needed his help. I also note that, aside from testifying that he worked on June 17 and 18, 2013, the applicant basically did not dispute the respondent’s evidence concerning his work performance, or that he had unjustified absences from work.

41In the circumstances, I find that it is clear that the respondent had non-discriminatory reasons for terminating the applicant’s employment. With respect to the applicant’s allegation that Mr. Pommainville told him that the respondent was “looking for an older gentleman” when his employment was terminated, having carefully considered the evidence, I find that the applicant has not established on a balance of probabilities that the comment was made.

42Although Mr. Pommainville could not recall the actual day and time that he spoke to the applicant, he was clear in his evidence that he told the applicant that they no longer needed his help, and that he never said anything about age. He denied that he was looking for someone older, and testified that the respondent hires individuals who are young and old. He testified that the applicant was dismissed because he did not do the job, and, in his view, the applicant was just not a good fit.

43Mr. Pommainville testified that he did not refer to a reason for the termination of the applicant’s employment at any time, and that it was up to Ms. Fournier, and that he told the applicant to call Ms. Fournier. In cross-examination, he was asked about his signed statement wherein it states that the applicant asked him what he did and Mr. Pommainville said to the applicant that it was “just not for him”, rather than telling him what he did wrong. He testified that he was only asked to call the applicant and tell him not to come in the next day, and the applicant was supposed to call Ms. Fournier, and he advised him to call Ms. Fournier.

44Ms. Baker also testified that she did not, at any point in any discussion with Mr. Pommainville, say that the applicant’s age was a factor.

45I have found that it is clear that the respondent had non-discriminatory reasons for terminating the applicant’s employment, related to both performance and attendance. I also accept the evidence of Ms. Fournier and Mr. Pommainville that Ms. Fournier instructed Mr. Pommainville to let the applicant go. Mr. Pommainville also testified that he did not hire and fire, and I find that it was Ms. Fournier’s decision to terminate the applicant’s employment. I also find Mr. Pommainville’s evidence that he only told the applicant that they no longer needed his help and that it was “just not for him” when the applicant asked what he did, and that he advised the applicant to call Ms. Fournier, to be reasonable in the circumstances as it was Ms. Fournier’s decision to terminate the applicant’s employment. In these circumstances, I find it difficult to accept that Mr. Pommainville would have told the applicant that they were “just looking for an older gentleman”, even accepting the applicant’s evidence that Mr. Pommainville agreed with another individual that the applicant has a “baby’s face.” In my view, it does not seem likely that Mr. Pommainville would make such a comment in all of the circumstances.

46I also have difficulty with aspects of the applicant’s evidence. In particular, the applicant testified that he worked on June 17 and 18, 2013, but that he did not call in to let Mr. Pommainville know that he was working, and that he was not paid for those days. He also testified, however, that he spoke directly to Mr. Pommainville on June 18, 2013, when he asked Mr. Pommainville if he smelled like garbage, which I find to be contradictory. The applicant also testified that he was not at work on June 19, 2013, when he acknowledged that he should have been, because he spilled “garbage juice” on himself the day before, which, in my view, does not appear to be a reasonable explanation for not attending work the next day. The applicant also testified that he signed a document saying that he read the respondent’s policy manual, but that he did not read it.

47In all of the circumstances, I prefer the evidence of Mr. Pommainville which I have found to be consistent, and I am not satisfied on a balance of probabilities that Mr. Pommainville told the applicant that the respondent was “looking for an older gentleman” when the applicant’s employment was terminated.

48The Application is dismissed.