HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mina Bapir Rasoul
Applicant
-and-
Nacer Allahoum and La Casbah Restaurant
Respondents
DECISION
Adjudicator: Maureen Doyle
Indexed as: Rasoul v. Allahoum
APPEARANCES
Mina Bapir Rasoul, Applicant
Self-represented
Nacer Allahoum and La Casbah Restaurant, Respondents
Fatima Allahoum, Representative
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondents deny having discriminated against the applicant contrary to the Code.
3This hearing took place over several non-consecutive days, with a Kurdish interpreter providing translation for the applicant and a French interpreter providing translation for the respondent.
4The applicant testified on her own behalf. The respondent’s witness and representative was Ms. Fatima Allahoum, spouse of the individual respondent and part-owner of the organizational respondent. She also indicated that she is the “production manager”.
BACKGROUND
5The applicant testified that she did not prepare her own Application, and that she had someone who speaks and writes English better than she does, prepare it for her. She testified that though she signed to say that the Application was accurate, she may not have understood exactly what was written and it may not in fact be entirely accurate. Accordingly, in making my decision, I have reference to her oral testimony as well as to the evidence proffered by the respondents.
6Beginning in June, 2010, the applicant worked at the respondent restaurant and catering business on a part-time basis, performing duties involving some food preparation and cleaning. It is not disputed that she worked Saturdays and some other days, often Wednesday and Friday, for approximately 15-20 hours per week. There is no dispute that she was paid every second week, on Wednesdays.
7The applicant testified that she worked her normal shift on Saturday, December 17, 2011. She testified that on that day she told the individual respondent, Mr. Nacer Allahoum, that she wanted her paycheque on Monday, December 19, 2011. She testified that when she spoke to him on Saturday, December 17, 2011, he agreed that she could come to get her paycheque on Monday, December 19, 2011. She testified that she never told the individual respondent why she wanted her paycheque or that she was sick.
8Ms. Allahoum testified that, as every Saturday, she arrived at the restaurant later in the afternoon on December 17, 2011, after having been at a farmer’s market all day, and she saw the applicant for about 10 to 15 minutes at the restaurant. She testified that if she spoke with her, it was only a brief greeting.
9The applicant testified that she went to a specialist physician who referred her for testing for cancer. She testified that she was very worried and on December 19, 2011, showed the specialist’s referral for testing to a doctor at a walk-in clinic who told her she should take time off work due to her stress. Elsewhere in her testimony, she indicated that when she saw the doctor at the walk-in clinic, he also prescribed medicine for a different medical condition. She entered into evidence a doctor’s note dated December 19, 2011, stating that she should be off work until January 11, 2012 as well as an undated prescription from the same doctor. At various points she stated that it was the doctor at the walk-in clinic who initially sent her to the specialist and that it was a doctor at the local hospital who sent her to the specialist. The note dated December 19, 2011 indicates that December 19, 2011 was the first time she was seen at that walk-in clinic.
10She testified that she was not scheduled to work on Monday, December 19, 2011, but that she went to the restaurant that Monday to collect her paycheque. She testified that she spoke with Fatima Allahoum and that when she asked for her cheque Ms. Allahoum started yelling at her and said that she did not want to give her the paycheque as she had not done a good job. She testified that she told Ms. Allahoum that she was sick and could not stay and only wanted to collect her cheque and go, but that Ms. Allahoum insisted that she stay and work. She also testified that Ms. Allahoum insisted that she did not want to pay her and that she told the applicant to get out of the restaurant, stating that she should get a lawyer to obtain her cheque for her.
11The applicant testified that she presented the doctor’s note to Ms. Allahoum on Monday, December 19, 2011. But when I asked her when she showed Ms. Allahoum the doctor’s note, she talked about Ms. Allahoum saying that she did not want to pay her, she talked about telling Ms. Allahoum that she was sick and wanted to collect her cheque and go, she stated that Ms. Allahoum was yelling and screaming and she eventually testified that she did not get a chance to give her the note as Ms. Allahoum was yelling at her.
12Fatima Allahoum testified that when the applicant came to the restaurant on December 19, 2011, the only thing she talked about was getting her paycheque, stating that she had asked Mr. Nacer Allahoum on Saturday to have it ready. She testified that she told the applicant she did not have the cheque and that she is not the one who prepares the cheques. She testified that the applicant told her she needed money for food and some shopping, but that she did not mention the need for medicine. She testified that she offered the applicant a cash advance of $200 on December 19, 2011, but that the applicant refused it, saying she wanted her entire pay and that she did not want to return to work. Ms. Allahoum testified that the applicant did not tell her she had a doctor’s note indicating that she would need to take time off work for medical reasons.
13Ms. Allahoum testified that at that time, she asked the applicant if she could give her some notice of leaving and at least finish out her remaining shifts for the week in order to give her an opportunity to find a replacement. She testified that she asked the applicant why she had not given her notice when they saw each other briefly at the restaurant on Saturday, December 17, 2011. She testified that their interaction on December 19, 2011 was quite brief, lasting no more than 5 minutes.
14The applicant also testified that she believes she misunderstood Ms. Allahoum on December 19, 2011, as she did not understand that Ms. Allahoum was prepared to give her the remainder of the money owing to her in her paycheque on the Wednesday, but thought that she was only going to pay her the cash offered to her on December 19, 2011. She testified that she just wanted money to cover her prescription and that she was not in a hurry to receive the remainder of the money, but that when Ms. Allahoum did not offer her the full amount, she became scared that she would not receive the remainder and demanded her entire pay.
15The applicant testified that she then went to a community agency that had been helping her and an individual there telephoned Ms. Allahoum for her. She testified that she went to the agency and complained that she needed all of the money owing to her and indicated she did not understand why Ms. Allahoum wanted to keep her money. She testified that nothing was accomplished in the telephone call.
16Ms. Allahoum testified that she received a telephone call from an individual at a community agency a couple of hours after the applicant left the restaurant on December 19, 2011. She testified that the individual stated that the applicant was at the community agency and was saying that Ms. Allahoum had refused to give her the pay cheque. She testified that she asked the individual why the applicant had not given her notice earlier, for example on Saturday December 17, 2011, and the individual stated that the applicant did not have to give notice and could leave when she wanted. She testified that she advised the individual that she would have the applicant’s cheque ready for Wednesday, December 21, 2011. She testified that the individual mentioned nothing about the applicant being sick or about a doctor’s note.
17The applicant entered her calendar into evidence. It indicates that she went to the restaurant again on December 20, 2011 at 1 pm. She testified that she went there at that time, but that she knocked on the doors and no one answered.
18The applicant testified that Ms. Allahoum called her at home on Wednesday, December 21, 2011 and said that she had her cheque ready for her but that it was not for the full amount and she did not need her to return to work. She testified that she told Ms. Allahoum that she needed the cheque for the entire amount owing.
19The applicant testified that she went to pick up her cheque at some point after Wednesday December 21, 2011, and that she went with the individual helping her from the community agency. She testified that she did receive the cheque and did not dispute that it was made out to her for the correct amount for her wages.
20Ms. Allahoum testified that the individual from the community agency came with the applicant on Friday, December 23, 2011 to collect the applicant’s pay cheque, she handed the cheque to the individual from the community agency, and the applicant did not get out of the car. She testified that neither the applicant nor the individual from the community agency mentioned a health problem or a doctor’s note.
21Also in evidence was a note, signed by the individual from the community agency. It states “Hi Fatima, This is Mina’s address for you to mail her vacation pay and ROE – Record of Employment ASAP. Thank you”. It was not clear how or when this note was delivered, but there was no dispute that the respondents subsequently sent a cheque to the applicant for the amount owing for vacation pay. The respondent employer also provided a Record of Employment, indicating that the applicant had quit her employment.
22In cross examination the applicant was asked why she did not ask the individual from the community agency to find a way to mail or hand deliver the doctor’s note to Ms. Allahoum, including taking advantage of the opportunity to deliver it on December 23, 2011 when she collected the paycheque. The applicant testified that she told the individual from the community agency that she needed her help and tried to give that individual the letter, but the individual said it was not her job and refused. She also testified that the individual advised her that it would be better for her to do it herself, and that she should have direct contact with Ms. Allahoum.
23The applicant testified about health conditions she has which she believes are as a result of these events and testified about her job search efforts and employment.
24The applicant also testified about other concerns she had regarding work at the respondent restaurant, including health and safety concerns and disputes about hours worked.
25In her Application the applicant stated that she asked Fatima Allahoum if she could stay home for several days and tried to show her the doctor’s note but that Ms. Allahoum refused to look at it and sent her out of the workplace. Also in her Application she stated that on Wednesday, December 21, 2011, Ms. Allahoum telephoned her and told her “you cannot come back to work. I don’t need you anymore. I will pay you the least amount of money because you didn’t work”. Finally, in correspondence to the Tribunal dated April 11, 2013 which appears to form her Reply, she alleged that Ms. Allahoum refused to look at the doctor’s note and prescription and instead asked for the name and telephone number of her doctor so she could speak to him directly, but refused to pay any monies owing to her. For the reasons noted above, however, in making this decision, I have reference to the applicant’s oral testimony rather than the Application, and do not consider the inconsistencies between them.
26The applicant bears the onus of proving that her Code rights have been infringed by the respondents on the balance of probabilities. For the Application to succeed, the applicant must establish on a balance of probabilities that she suffered from a disability, that the respondents were aware that she had a disability or perceived her to have one, and that Ms. Allahoum terminated her employment due to her purported disability. For purposes of this decision, I will accept, without finding, that the applicant suffered from a disability. The decision in this matter rests therefore on whether the applicant has established her version of events that occurred on December 19, 2011. For the reasons below, I prefer the version of events recounted by Ms. Allahoum, and this Application is dismissed.
27An often cited case in relation to assessing credibility of a witness’s testimony is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). 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 demeanour 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.
28I am also guided by Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, where the Tribunal stated at paragraph 54:
Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witnesses, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of the witness’s evidence does not automatically ender the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.
Did the respondents know that the applicant suffered from a disability?
29There is no dispute that the applicant contacted the individual respondent, Nacer Allahoum, on Saturday, December 17, 2011 to ask him to have a paycheque ready for her on Monday, December 19, 2011. There is no dispute about the fact that she did not provide him with any reason for needing the cheque before her normal payday, Wednesday, December 21, 2011.
30In her evidence, the applicant testified that when she went to the restaurant on December 19, 2011, a day when she was not scheduled to work, and spoke with Ms. Allahoum, she asked her for her cheque, as previously discussed with Nacer Allahoum, and advised her that she was sick and just wanted her cheque and to go home. She testified that Ms. Allahoum did not give her an opportunity to show her the doctor’s note and she did not indicate in her testimony that she told Ms. Allahoum that the doctor had advised her to take time off her scheduled shifts. Similarly, in her testimony, she did not indicate that she showed Ms. Allahoum her prescription or advise her that she wanted money for a prescription. This is all consistent with the fact that the applicant made her initial request to be paid early when she spoke with Nacer Allahoum on Saturday, December 17, 2011, notably before the doctor saw her on December 19, 2011. Though she also testified that all she cared about was getting the money for her prescription and was prepared to wait for the remainder of her pay, this is not consistent with the fact that she asked to be paid early when she spoke with Nacer Allahoum on Saturday, December 17, 2011, before she had received a prescription or a note for time off from her doctor. It is, however, consistent with Ms. Allahoum’s evidence that the applicant spoke to her only about needing money for food and shopping, as paying for a prescription had not been her motivation for seeking the early pay cheque in the first place.
31The applicant did not deny that Ms. Allahoum offered her a $200 cash advance on Monday, December 19, 2011, nor did she deny that she declined the offer, insisting on the full amount of her pay. In what I find to have been a very telling admission, the applicant testified that she misunderstood Ms. Allahoum and believed that she was being offered $200 in full payment and that she was not going to receive the remainder of her full pay on Wednesday. She testified that it was at that point that she became scared and insisted on payment of the full amount owing to her.
32Given the applicant’s testimony indicating that she misunderstood Ms. Allahoum’s offer of a cash advance and given the parties’ challenges in communicating at the hearing, with the applicant requiring a Kurdish interpreter and Ms. Allahoum requiring a French interpreter, I have no difficulty whatsoever in concluding that there was significant miscommunication between the parties when they spoke English to each other. Further, I also note that at several points the applicant’s testimony was confused and inconsistent. For example, her testimony was inconsistent regarding whether she had been to the walk-in clinic before December 19, 2011 to obtain the referral to a specialist, or whether she had been to the hospital for that purpose. At first she testified that she had presented her doctor’s note to Ms. Allahoum, but subsequently indicated that Ms. Allahoum had not given her a chance to do so as she was yelling. She testified that in asking for the early paycheque, she just wanted money to cover her prescription, but she did not have one on Saturday December 17, 2011 when she asked for the early pay cheque. Whereas the evidence of Ms. Allahoum was consistent. Where the two diverge, therefore, I generally prefer the evidence of Ms. Allahoum, bearing in mind however, that there appears to have been some difficulty between the parties in communicating.
33The applicant also testified that on December 19, 2011, Ms. Allahoum insisted that she stay and work, but that she told Ms. Allahoum she was sick and wanted to go home. Given the difficulties the applicant and Ms. Allahoum had communicating with each other, as it was not the applicant’s scheduled shift, I find that the request to continue working was likely not a request that the applicant stay at the restaurant and work that day, but rather, that she continue working for the remainder of her shifts that week. However, again, given what I have found to be the difficulties in communication between the applicant and Ms. Allahoum, I am satisfied that the applicant believed Ms. Allahoum was asking to her stay at work that day. However, I do not find the fact that the applicant advised Ms. Allahoum that she just wanted to get her cheque and go home because she was sick, was an indication by the applicant that she had a disability and would require several weeks off work.
34I further note that there is no evidence that the individual from the community centre who was assisting the applicant, told Ms. Allahoum about the doctor’s note. This individual also did not deliver the note to Ms. Allahoum, either when she delivered the note with the applicant’s new address for her final cheque and ROE or when she collected the final pay cheque with the applicant.
35The applicant did not deliver the doctor’s note to the respondents. The applicant did not testify that she told Ms. Allahoum that the doctor was recommending she take time off for medical reasons. Her evidence does not indicate that she told Nacer Allahoum that the doctor recommended she take time off for medical reasons – in fact when she spoke to Nacer Allahoum the doctor had not yet made that recommendation. The individual from the community agency assisting the applicant did not deliver the doctor’s note to the respondents, either when she went with the applicant to collect the pay cheque, or when she delivered the handwritten note with the applicant’s new address for her final cheque and ROE. There is no evidence to indicate that the individual from the community agency told the respondents that the applicant was ill and required time off or that she had a doctor’s note to that effect. The most that the evidence establishes is that the applicant advised Ms. Allahoum on December 19, 2011 that she was sick and just wanted her cheque and to go. In the circumstances where this was her day off, she had come in simply to obtain a cheque, she did not provide the doctor’s note to the respondents or state that she was required to have several weeks of leave, I do not find that her comment that she was sick and wanted just to go home should be understood as notice to the respondent that she was in need of time off her scheduled shifts for medical or disability related reasons. Accordingly, I do not find that at the relevant time, the respondents had notice of the applicant’s disability. Similarly, I do not find that there is any evidence to indicate that at the relevant time the respondents would have perceived the applicant to have a disability. In these circumstances, and for these reasons, I do not find that the respondents discriminated against the applicant due to disability.
Was the applicant’s employment terminated due to her disability?
36Even if I am wrong in concluding that the respondents were not aware of the applicant’s disability, I do not find that the respondents terminated the applicant’s employment.
37Whether the applicant’s employment was terminated on December 19, 2011 must be examined in light of the surrounding facts. There is no dispute that Ms. Allahoum offered the applicant a $200 advance on this date. I consider that this would be an unlikely offer in the event that she was in fact terminating the applicant’s employment. There is no dispute that the applicant refused the advance and insisted on payment in full.
38While the applicant testified that she told Ms. Allahoum that she wanted the full amount and that Ms. Allahoum told her to get out of the restaurant and that she should get a lawyer to get her money, considering Ms. Allahoum’s offer of a cash advance, I am not persuaded on a balance of probabilities that Ms. Allahoum threatened to withhold the remainder of the money owing to the applicant. In fact, as noted above, according to the applicant, she misunderstood the offer of a cash advance and concluded that Ms. Allahoum was withholding the remainder of the money she was owed. This is what the applicant indicated “scared her” and caused her to go to the community agency for assistance.
39There is no dispute that on December 19, 2011, Ms. Allahoum asked the applicant to continue working. Though the applicant appeared to believe that she was being asked to remain at work that day, as noted above I find that it was likely that she was being asked to continue work that week, completing her shifts and allowing the respondents to find a replacement for her. While it is certainly possible for an employer to terminate an employee’s employment and provide “working notice”, in the circumstances described here, it appears that the question of working the remainder of the week’s shifts came about by way of a response to the applicant’s assertion that she just wanted to collect her cheque and go. As noted above, the applicant and Ms. Allahoum appear to have had difficulty in communicating and the request to work the remainder of the week is consistent with Ms. Allahoum believing that the applicant was quitting her job, with no notice. This is also consistent with the evidence regarding Ms. Allahoum’s conversation with the individual from the community agency, in which the matter of payment of outstanding wages and whether the applicant was obliged to give notice of her intention to quit were the only topics of conversation. This too is consistent with the applicant’s evidence that the reason she went to the community agency was because she was concerned that the respondents were not going to pay her all of the money owing to her. In all of these circumstances, I am not persuaded on a balance of probabilities that Ms. Allahoum terminated the applicant’s employment on December 19, 2011. Rather, I am persuaded that Ms. Allahoum believed the applicant to have resigned from her employment that day.
40The applicant also testified that Ms. Allahoum called her on Wednesday, December 21, 2011, told her that her pay cheque was ready and advised her that she “did not need” the applicant any longer. I find that this too was consistent with Ms. Allahoum’s conclusion that the applicant had quit her employment and her request to the applicant to work her remaining shifts that week. I find that this telephone call was an indication that the respondent was no longer requesting she provide notice of her intention to quit.
41For these reasons, I am not persuaded on a balance of probabilities that the respondents terminated the applicant’s employment.
42For all of the reasons above, I am not persuaded on a balance of probabilities that the respondents knew of the applicant’s purported disability, nor did they perceive her to have a disability, nor am I persuaded on a balance of probabilities that they terminated her employment, and this Application is dismissed.
Dated at Toronto, this 12th day of November, 2014
“Signed by”
Maureen Doyle
Vice-chair