HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ravi Chander
Applicant
-and-
Aon Reed Stenhouse Inc.
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Chander v. Aon Reed Stenhouse Inc.
APPEARANCES
Ravi Chander, Applicant
Self-represented
Aon Reed Stenhouse Inc., Respondent
Kate Dearden, Counsel
Introduction
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 because of race, colour and ethnic origin. The allegations relate to the applicant’s employment with the respondent from 2004 to May 1, 2012, when the employment was terminated on a without cause basis. The applicant alleges that he experienced differential treatment during his employment and in particular that the decision to terminate his employment on May 1, 2012 was discriminatory and contrary to the Code.
2The Application was heard on September 9 and 10, and October 15, 2013. The parties filed final written submissions and the post-hearing process was completed by November 8, 2013.
3The applicant’s evidence in chief was adduced primarily in response to questions from me. The applicant had also prepared a summary of his allegations which he reviewed at the hearing. For the respondent, I heard evidence from Jim Hubbard, a senior officer with the respondent, and he was cross-examined by the applicant. I also heard evidence from two members of the respondent’s Human Resources department.
4At the hearing, the applicant clarified that while he has some issues concerning the earlier years of his employment, his allegations of Code-related discrimination relate to the period after 2009, when Mr. Hubbard became his manager. Mr. Hubbard was the Chief Financial Officer of Aon Reid Stenhouse Inc. and is now the Chief Financial Officer of a related company. The applicant self identifies as a visible minority and was born in India. Mr. Hubbard is a white person.
Summary of the applicant’s allegations
5The applicant makes the following allegations that in his view prove that the respondent violated his Code-protected rights:
The respondent falsely concluded that there were performance problems in regard to his work.
In the absence of true performance issues, the applicant's race, colour and ethnic origin were the real reason his employment was terminated and the claimed performance issues were only a pretext.
He was not successful in a job competition and he was more qualified that the person who was successful.
He was then not offered the position made vacant by the successful candidate.
He was not given training opportunities.
He was not permitted to use a personal day on his mother’s birthday
Mr. Hubbard made comments about the way he dressed.
Issues about documents and disclosure
6Prior to the hearing, the parties had each filed a number of requests with the Tribunal. The applicant filed a Request for Order During Proceedings which sought an order from the Tribunal directing the respondent to disclose a number of documents. I issued a Case Assessment Direction on August 8, 2013 which stated that I was not prepared to direct the respondent to disclose the documents sought at that time but that the request could be renewed at the hearing. The applicant did renew the request at the hearing.
7The documents the applicant wanted to obtain are of two types. The first type was a request for employment-related information about a number of co-workers and about Mr. Hubbard, including salary, bonuses paid, and training opportunities. This information is personal and otherwise confidential. I concluded that this information was not clearly relevant to the issues in the Application. The second type of document that the applicant wished disclosed concerned various corporate acquisitions, most of which pre-dated the applicant’s employment. The applicant appeared to want to use the information to show that he was correct and Mr. Hubbard was wrong about various issues relating to corporations related to the respondent. I concluded that this sort of information was not clearly relevant to the Application. In addition, introduction of this information would likely significantly complicate the hearing in a manner that could not be justified by the marginal, if any, relevance of the documents in question.
Applicant’s concerns about the hearing
8In his post-hearing written submissions, the applicant made a number of complaints about the hearing process. First, he reiterated his view that the respondent should have been required to disclose the documents discussed above. As with his previous submissions on this point, the applicant stated that he believes that he might have been able to better prove his case with access to the documents.
9The applicant also alleges that a time limit was imposed on his cross-examination of Mr. Hubbard that was less than the time allotted to the respondent’s counsel for her questions of Mr. Hubbard. He complains that he was told not to interrupt during Mr. Hubbard’s examination in chief but that he was interrupted during his cross examination of Mr. Hubbard with challenges to the relevance of his questions.
10I do not recall that a time limit was imposed on the applicant about the length of time of his cross-examination. He certainly did not indicate at the time that he needed more time for his cross-examination.
11It is true that the applicant was asked not to interrupt during counsel’s examination in chief of Mr. Hubbard. It was suggested that he keep notes of his concerns so that he could raise them when he questioned Mr. Hubbard. It appeared that he did so. During his cross-examination of Mr. Hubbard, counsel for the respondent did occasionally raise objections about relevance to some of the applicant’s questions. These objections were dealt with as they arose. Some were upheld and some were not. The applicant was appropriately given considerably leeway in respect of his cross-examination questions because he was self-represented and not familiar with the hearing process. For example, he provided extensive evidence in the course of asking his questions.
Background
12The applicant came to Canada from India in 2000. He was a Chartered Accountant in India. After coming to Canada he became a Certified Management Accountant (which the applicant identified as an American designation) and then qualified as a Certified General Accountant (CGA). At the time he started his employment with the respondent in 2004, he had one remaining examination to take to achieve the CGA designation, and he successfully completed the examination soon after starting his employment.
13The applicant’s job title was Financial Analyst. In general terms, he was responsible for collecting data used to produce the respondent’s internal budgets. Data was primarily obtained from Regional Financial Managers.
14The applicant’s employment was terminated on May 1, 2012, on a without cause basis. He was provided with a severance package in accordance with a contract of employment he signed when he started his employment. While the respondent did not assert that the termination was for cause, it does assert that the termination was due in part to performance related issues.
15The applicant contends there were no performance related issues. He believes that he was an excellent employee who consistently provided high level product. In the absence of performance issues, the applicant believes that the termination of his employment must be discriminatory, and specifically, that the termination was related to the fact that he is a visible minority and of Indian heritage.
16At the hearing, the applicant was asked if he could identify anything that Mr. Hubbard ever said to him that had any direct racial connotation. He recalled that on one occasion, Mr. Hubbard stated “I don’t care where you came from”, which the applicant felt was a negative comment on his heritage. The applicant testified that on another occasion, Mr. Hubbard said something like “your place is out there” pointing out the window. The applicant was not able to explain how these alleged comments establish discrimination on the basis of a Code ground.
17Apart from these comments, the applicant did not identify any evidence of direct discrimination. However, he believes that the circumstantial evidence shows discrimination because the respondent’s assertion that there were performance issues is false. The hearing therefore focussed on the applicant’s job performance. In addition, the applicant alleges that he was not considered for promotion and was not given equal access to training opportunities. He also alleged that he was denied a request to take a personal day on his mother’s birthday and that Mr. Hubbard made discriminatory comments about his clothes.
The performance reviews and the alleged performance issues
18From 2004, when the applicant started his employment, to 2009 when Mr. Hubbard became the manager, the applicant had not had formal performance reviews. The applicant testified that he got along very well with his previous manager and that they enjoyed a collegial relationship.
19Mr. Hubbard testified that he instituted a performance review process and that the process is integral to his management style. He emphasized that performance review is an ongoing process. The performance standards and job expectations for each employee are set at the start of the year and these form the basis for the end of year assessment but also are referred to throughout the year in ongoing management discussions with employees.
20There were two formal performance reviews for the applicant that were conducted by Mr. Hubbard.
21The first formal performance review was completed in early 2011 and was with respect to the applicant’s performance during 2010. The review template was online and in about January 2011, the applicant entered his self-assessment. The assessment process included a numerical value between one and five for a number of categories. Mr. Hubbard then reviewed the applicant’s self-assessment and wrote his own assessment including a numerical value. The review document covered five categories and an overall assessment section.
22The parties agree that a number of four is warranted when an employee exceeds expectations. Five is consistent with “substantially exceeds expectations”. A number of one or two indicates performance that is below expectations. Three means that the employee has met expectations.
23In the 2010 performance review, the applicant’s self-assessment for all the categories included a numerical value of 4 or 5. Mr. Hubbard’s assessment included a numerical value of 3 for most of the categories and a rating of 2.8 for two of the categories, both of which were important performance categories.
24Mr. Hubbard’s overall assessment of the applicant’s performance included a numerical rating of 3, with the following comments:
Ravi – I believe that we are at a cross-road of expectations and potential. I believe that you have met expectations in your role but need to determine if you want to and are able to exceed and out perform in that role.
25Mr. Hubbard was asked to clarify this comment. In particular, he was asked to clarify the apparently contradictory suggestion that in order to meet expectations, the applicant would seemingly have to exceed expectations.
26Mr. Hubbard explained that he wanted the applicant to be more pro-active in the way he did his job. He felt that the applicant was generally only reactive in that he provided information that was requested of him but failed to anticipate what might be required and to provide the information before it was requested. He indicated that he expected the applicant to constantly review the data that came to him to ensure accuracy, whereas the applicant was inclined to review data only when asked to do so. He felt that even when the applicant did review data he sometimes made errors or overlooked significant problems with the data. On some occasions, this could have had major repercussions if it had not been noted by someone else. Mr. Hubbard explained that because of the applicant's professional qualifications, and the fact that the applicant had been performing the job for about six years by the time of the 2010 review, his expectation of the applicant was that the applicant would exceed the normal expectations of the job. Mr. Hubbard’s view was that the fact that the applicant was not exceeding normal expectations meant that he might not be suited for the job on an ongoing basis.
27The applicant does not agree with Mr. Hubbard’s assessment of the way he did his work. He did sign the 2010 assessment document but indicated that he did so under duress. The applicant testified that the errors that Mr. Hubbard alleged would have been caught before they caused any actual problems.
28The performance review for 2011 was completed in approximately March 2012. The applicant submitted his self-assessment on March 6, 2012. Mr. Hubbard’s assessment of the applicant was presented to the applicant at a meeting on March 23, 2012. Mr. Hubbard testified that he will sometimes provide an employee with his comments in advance of the meeting to discuss the comments but that he also often waits to provide the comments so that he can explain them in person.
29The applicant testified that the meeting lasted less than 15 minutes. He testified that he anticipated that Mr. Hubbard would be arrogant in the meeting and this proved to be the case. The applicant testified that Mr. Hubbard started the meeting by stating that it was obvious that they could not see each other “face to face”. Mr. Hubbard testified that he said that he and the applicant did not see each other “eye to eye”. The applicant testified that he realized that he would not gain anything by discussion about the negative comments in the assessment and told Mr. Hubbard that he was not prepared to discuss the fact that there was a gap between Mr. Hubbard’s assessment and his self-assessment. He testified that he did state that he wanted a third party to review the assessment. He testified that Mr. Hubbard did not respond to this. The applicant testified that he believes that Mr. Hubbard should have suggested that the applicant ask for an intervention by the Human Resources department since it was clear that a manager and employee had a significant disagreement. Mr. Hubbard did not suggest that the applicant go to the Human Resources department. The applicant agrees that he did not himself pursue the matter with the Human Resources department although he did understand that he could have complained to the Human Resources department about the process. He indicated that he now realizes that it was a mistake for him not to have pursued the matter at the time.
30The applicant's self-assessment at the time of the 2011 annual review was similar to his self-assessment the year before. Mr. Hubbard’s comments were more negative than the 2010 assessment, although the numerical value for the overall assessment was 3. In his testimony he indicated that his assessment in the 2011 review was “more exacting” than his assessment in the 2010 review.
31Mr. Hubbard testified that some aspects of the applicant's self-assessment for 2011 were “bizarre”. He indicated that the applicant appeared to have overlooked performance issues that had been discussed during the year. He felt that the applicant’s failings were not reflected in his self-assessment. In particular, Mr. Hubbard felt that the applicant was responsible for ensuring that accurate data was received from the Regional Financial Managers in a timely way. The applicant felt that he did not have the authority to require the Regional Financial Managers to provide accurate information in a timely way and that he was required to spend a great deal of frustrating time trying to get the information.
32For example, one of the significant elements of the applicant's job duties and of the assessment was the annual budget process. The applicant's self-assessment was:
Had to constantly monitor, guide and resolve issues from the Regions on several Budget related issues. It could have been more effective if there was equal professional matching of minds from the other side.
33The applicant assigned himself a self-rating of 4.5 for this category.
34Mr. Hubbard’s rating was 3.5 and his comment was:
Ravi – I am not sure what aspects you are referring to but in June we had a number of issues that we discussed and documented in e-mails where I specifically noted (June 22) that perhaps you were not “leading and co-ordinating” the annual budget process.
35Mr. Hubbard testified that he felt that the applicant’s comments reflected the fact that the applicant was not a good “team player”. He indicated that as a manager a good team is essential and this requires the members of the team to work co-operatively and with mutual respect.
36Mr. Hubbard noted that this concern was particularly clear to him in regard to the area of the assessment concerning teamwork. The applicant’s self-assessment value for this area was 4 and his comments were as follows:
Always believed in self improvement and honesty in my work. Never bothered what the other person will think.
37Mr. Hubbard’s comments in the assessment for this area included the observation that the assessment area was about team work and that the applicant's comments seemed to be about himself and indicated that he was not interested in what others on his team might think. He rated the applicant at 2 for this area.
38The applicant's comments in the overall section of the assessment included:
My contribution in AON has surely not been recognized so far. I can debate and prove this to anyone if one is willing to listen. There has been no shortfalls in terms of qualification or experience or skills or even ability to monitor and coach others.
My policy has been to work in the best interest of the company which is AON. I do not work just to satisfy individuals because individuals come and go and the company stays on forever.
39With regard to “areas for improvement” in the overall section Mr. Hubbard indicated:
I am not sure that I can really add anything here but I would suggest that you should read your comments in this evaluation and see how very little respect you have for the Team. Your comments suggest that you do not bother what others think and no one is as professional as you.
40However, in the “strengths and accomplishments” area of the overall section, Mr. Hubbard stated:
I felt that there was an improvement with more pro activity this year. I have determined based on the past few years of discussion that your role does fit [your] competencies.
As noted Mr. Hubbard assigned an overall numerical rating of 3, indicating that the applicant had met expectations.
41Both the applicant and Mr. Hubbard provided extensive evidence about various aspects of the applicant's job and how it fit into the respondent’s overall structure. As I noted at the hearing, it was sometimes difficult for me to assess this evidence because much of it related to accounting, budgeting and computer software processes that were difficult to understand and which changed during the relevant time frame. As discussed in more detail below, if this was a wrongful dismissal case and not a human rights case, it might have been necessary to ensure that the parties provided sufficient evidence about these systems, including possibly expert evidence about professional standards and industry expectations. However, as also discussed in more detail below, I am satisfied that this type of evidence is not necessary in order to determine this Application.
42In more general terms, the applicant identified a number of frustrations with structures that made his job difficult. One issue concerned the nature of his relationship with the Regional Financial Managers. While he needed them to provide a stream of data, he had no actual authority to direct them if there were problems or delays in providing the data. For the applicant, some of the issues alleged about his performance were really not his fault at all but were rather the result of this structural issue. At the same time, the applicant testified that he had a very good rapport with the Regional Financial Managers and that there was mutual respect. However the applicant submits that since he was required to make sure that data was submitted on time, he should have been made a supervisor of the Regional Financial Managers.
43Another problem was that a number of other people could enter data and change information in such a way that the applicant did not necessarily know that this had occurred. Mr. Hubbard acknowledged that this was sometimes a problem for him too in regards to his own use of the data. These challenges were made worse when systems were changed, especially if all of the people using the systems were not properly trained on the changes. At various times, the applicant made suggestions to Mr. Hubbard about ways to address these and other structural issues. The applicant felt that these suggestions were consistently ignored.
44The applicant also had a number of concerns about the overall system. He felt that there were significant financial losses that were happening, or could happen, that could have been prevented if his advice was followed. In his post-hearing written submissions, the applicant said this with regard to one of these issues:
[Mr. Hubbard] hardly showed any interest in all the “Gray areas” where the company was making huge losses. In fact I was even told not to probe into such areas. [three reporting centres or clients] are clear loss centers, which should have been avoided and the shareholders interests should have been protected. No appropriate or corrective action was ever taken and huge losses were incurred.
45The applicant’s testimony and submissions show that he was personally and professionally committed to his employer. This resulted in conflict with Mr. Hubbard when the applicant felt that Mr. Hubbard was not acting in the best interests of the employer or when he failed to understand or accept the applicant's suggestions for improvement. In his written submissions the applicant commented:
For me working for AON REED was top priority and not working to please and satisfy Jim Hubbard’s personal ego. I got my salary from AON REED and not Jim Hubbard.
46In his reply submissions, the applicant stated:
Yes my loyalty was for AON REED. Mr. Hubbard wanted me to ignore highly critical areas where the company was losing money and as a professional I stood up against him in the best interest of the company. I cannot turn my head the other way and agree with my manager if he is wrong. I never had any grudge against anyone. It was Mr. Hubbard who did not want to see me face to face or eye to eye. He was the one who could not stand a more qualified visible minority employee in the corporate office…
47As the applicant’s manager, it is apparent that Mr. Hubbard had some difficulty with the applicant’s views about how things should be done. This difficulty was probably enhanced because Mr. Hubbard’s managerial style differed significantly from the previous CFO who had been the applicant’s manager. As the respondent notes in its submissions:
After hearing evidence from Mr. Chander and Mr. Hubbard, it would be reasonable to conclude that there was some tension in the relationship prior to the termination meeting. The evidence shows that when Mr. Hubbard became the CFO of Aon, he brought in a new corporate culture. He wanted employees to show initiative, ambition, work on teams, and perform at a high level.
48The “tension” mentioned here was evident in the hearing. It appeared to me that the underlying cause of this tension was primarily the different management style that Mr. Hubbard introduced. This style was quite different than the style of his predecessor. A key component of this style was Mr. Hubbard’s view about the importance of team work which differed from the applicant’s ideas about team work. One example of this difference was that Mr. Hubbard convened regular team meetings which team members were expected to attend. People were not in the office could participate by telephone conference call. The applicant frequently participated by telephone conference call even though he was in the building where the meeting was occurring. The applicant testified that he did not see why it was necessary to attend these meetings in person. Mr. Hubbard testified that he felt that this showed that the applicant was not a good team player.
Hiring process allegations
49The applicant's allegations of discrimination include a hiring process in early 2012. There was an opening for the position of Manager of Finance. The applicant testified that he believes that he should have been given this job and that he is more qualified than the person who did get the job.
50Ms. Yewchuck, from the respondent’s Human Resources department testified that the applicant applied for the position. However, by the time he did so, the position had already been filled. She testified that “due to a glitch” the computer system accepted the applicant’s application.
51Mr. Hubbard testified that in his opinion, the successful candidate was better qualified for the job. In particular, she had management experience which the applicant did not and management was a key component of the job duties.
52As a result of this hiring process, there was a vacancy created because the position previously filled by the person who was the successful candidate was vacant. The applicant testified that he felt that he should have been awarded that position. He applied for the job but was not the successful candidate. The applicant testified that he was not surprised by this because the job was two levels above the level of his job.
Termination of the applicant's employment
53The applicant’s employment was terminated on May 1, 2012, approximately six weeks after the meeting on March 23, 2012 meeting about the 2011 performance review.
54At the hearing, Mr. Hubbard was asked when the decision to terminate the applicant's appointment was made. He testified that the decision was made in about mid-2011. He agreed that as a result, the 2011 performance review process in March 2012 was not really relevant to the termination decision.
55Mr. Hubbard testified that earlier in 2011 he and others concluded that they needed someone else in the position held by the applicant, although it was not immediately decided whether this would be accomplished through a reorganization or termination of the applicant’s employment. In early 2012, there was discussion between Mr. Hubbard and others about a student co-op placement who had been working in the department. He was identified as someone the company should try to recruit. Mr. Hubbard testified that the student was “a really bright and motivated kid” and that they did not want to lose him to a competitor. In early 2012, Mr. Hubbard realized that this student could be a “great fit” as a replacement for the applicant. The student was graduating on May 1, 2012 and this is why the applicant’s employment was terminated on that date.
56The applicant noted that the summer student is a white person. He also noted that this person is a younger person and that there was accordingly a possibility that the applicant had been discriminated against because of age. However, he agreed that age was not a ground of discrimination that was alleged in this Application.
57Mr. Hubbard testified that the decision to terminate the applicant’s employment was not due only to the desire to recruit the summer co-op student. He testified that he felt he was spending an inordinate amount of time managing the applicant and it seemed that the same issues were constantly recurring. Issues included performance errors and disrespect for team members.
58Mr. Hubbard testified that he worked with the Human Resources department to see if it might be possible to offer the applicant a different position in the company. However he eventually concluded that there was nothing suitable unless the applicant was prepared to move out of the country and he knew that the applicant would not want to do that.
59Mr. Hubbard testified that a number of employees have had their employment terminated in the past few years due to ongoing re-structuring.
The post-termination events
60At the termination meeting on May 1, 2012, the applicant was presented with a termination of employment letter that offered him benefit and salary continuation for a period of 24 weeks conditional on signing a standard release. The applicant refused to sign the release. He was eventually paid the 24 weeks salary continuation as this was consistent with his entitlement under the employment contract he signed at the start of his employment.
61The applicant testified that he was very taken aback when he was told at the meeting that his employment had ended. Mr. Hubbard was present at the start of the meeting but was not prepared to discuss the reasons for the termination. Sandy Tantello from the Human Resources department was present and so was a person from an out-placement agency. Mr. Hubbard left and he discussed his options with Ms. Tantello and the out-placement person as best he could.
62The applicant sent an email on May 20, 2012 which set out his position with respect to the termination of his employment. The email explained that the applicant felt that he had consistently performed well in his job and that any suggestion to the contrary were unfair and unwarranted. He made a counter proposal with respect to the severance package that had been offered. In this email, the applicant mentioned “unprofessional disrespect, discriminatory and differential treatment”. He explained that over the years, and based on his professional qualifications and experience, he should have been promoted but was not. He mentioned that he had been denied a request for a personal day and stated that he had been subjected to emails that were “unprofessional, despicable and disrespectful.” Despite allusions to “discrimination” this email did not include any allegation of discrimination on the basis of a Code-protected ground.
63A senior Vice-President responded to this email and advised that the company did not accept that its hiring and promotion practices were discriminatory.
64The applicant sent another email on June 21, 2012. It too mentions “discrimination” but does not identify discrimination on any Code-protected ground. The specific aspect of discrimination discussed in the email is that while he was terminated for alleged performance issues, Mr. Hubbard had not been similarly fired when he had been criticized by senior management for a faulty financial report.
65The applicant did make an allegation of discrimination on the basis of a Code-protected ground in an email to Mr. Hubbard dated March 13, 2012 (this predated the termination of employment).
66This email was in the context of an email chain between the applicant and Mr. Hubbard about the applicant's bonus for 2011-12. He received a $1,000 bonus and felt that this was not adequate. Mr. Hubbard replied that the bonus amount was calculated under a formula. He offered to explain the formula to the applicant. The applicant replied that he did not agree with the calculation of his formula. He added:
I have been severely discriminated maybe because of my heritage on several issues and if it can be resolved by you it is OK or else I will have to move to the next several levels to get my right.
67Mr. Hubbard acknowledged the applicant’s email and offered to talk later. He did not respond to the suggested allegation of discrimination on the grounds of heritage. As noted, the applicant did not subsequently re-state this allegation other than to say that he had experienced general discrimination.
Analysis and conclusions about the termination of employment
68Section 5 of the Code provides as follows:
- (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, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
69In a human rights case, the applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not that a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46.
70The primary issue that I must decide in this case is whether the applicant’s race or colour was a factor in the decision to terminate his employment. The applicant does not have to prove that his race or colour was the only reason for the termination. He only needs to show that this was a factor in the decision. In addition, I must decide whether the applicant was discriminated against contrary to the Code during his employment and whether the respondent appropriately dealt with and investigated any complaints of discrimination made at the time by the applicant.
71The applicant believes that the termination of his employment was unfair, and in particular, that the allegations of performance issues were completely false and unjustified. Since the applicant believes that the termination could not have been because of performance issues, he concluded that it must have been because of his race or colour and that the alleged performance issues were concocted as a screen for this discriminatory behaviour.
72If the applicant could establish that there was no valid reason for the termination, the possibility of Code-prohibited discrimination could be inferred from all the surrounding circumstances, including as in this case, if the applicant was then replaced by a person not associated with a Code-protected ground. However, the applicant must still be able to show a connection between the wrongful dismissal and a Code-protected ground. A respondent can defend the Application by showing that there is a non-discriminatory explanation for what happened.
73In this case, I find that there is a complete non-discriminatory explanation for the decision to terminate the applicant’s employment. That explanation has to do with the relationship between the applicant and Mr. Hubbard. In my view, the evidence clearly shows that the applicant and Mr. Hubbard had very different views about the applicant's job duties and accountability. Mr. Hubbard felt that the applicant was accountable to him as the applicant's manager to whom he reported. Mr. Hubbard felt that he was managing a team and that, as he put in his evidence, Mr. Hubbard was the hub of a wheel comprising the rest of the team. While the applicant understood this, he felt that his true loyalty was to the company as a whole. The applicant did not agree with Mr. Hubbard’s approach to many things and thought that things should be done differently. It is not my task in this Application to determine which of them was correct or whether the applicant was justified in his disagreements about Mr. Hubbard’s management style. The applicant's self-assessment was that he was exceeding expectations and contributing in a superior manner. Mr. Hubbard felt differently.
74Again, my task is not to determine who was right about the applicant’s performance, although I do have to consider whether Mr. Hubbard’s negative evaluations were influenced by Code-protected grounds.
75In any employment situation where there are significant differences in approach and style between an employee and a manager, and where each believes that the other does not respect him, there is at least a potential that things will end badly for the employee. And, in my view, that is what happened here.
76Even if the applicant is correct that he was right and Mr. Hubbard (to whom the applicant was accountable) was wrong with respect to their differing views of how things should be done, and how he should relate to the other members of the team, this would not prove discrimination contrary to the Code. It might establish wrongful dismissal but a wrongful dismissal complaint does not become a human rights case only because the applicant is a person associated with a Code-protected ground.
77I can find no evidence to support the applicant’s assertion that his colour and/or race were a factor in the termination decision. I find considerable evidence that the termination decision was related to a clash between the applicant and Mr. Hubbard. As noted, a significant clash with a manager may well turn out badly for the employee.
78At the same time, I do understand why the applicant felt that the termination of his employment was unfair and unjust. He had worked for the respondent for many years and clearly felt a great deal of loyalty to the respondent as his employer. His employment was terminated for alleged performance issues even though he was evaluated as meeting expectations. He felt betrayed when his employment was ended because of conflict with his manager, particularly as he was convinced that he was right and his manager was wrong.
79However, while I understand the applicant’s reaction to these events, I must determine only if he experienced Code-related discrimination. Having considered the evidence, I conclude that the applicant has not established that it is more probable than not that the termination of his employment was related to his race, colour or ethnic origin.
Conclusions about the promotion allegations
80The applicant's allegation in this regard is primarily with respect to the recruitment process when he applied for the position of Financial Manager that went to someone else who he identifies as a white woman. The basis for the allegation that this was discriminatory appears to be the applicant's contention that he was better qualified than the successful candidate because he had professional accounting accreditation that the successful candidate did not.
81On this point, Mr. Hubbard testified that professional accounting accreditation was not a requirement of the job and that managerial experience was. He testified that he successful candidate had the relevant managerial experience and the applicant did not.
82Ms. Yewchuck, from the respondent’s Human Resources department testified that by the time the applicant applied for the position, it had already been filled. This seems to provide a valid non-discriminatory explanation for why the applicant was not successful. The applicant suggests that this explanation was not true and points to the fact that he was selected for an interview. The respondent does not dispute this but states that this occurred because of a computer “glitch”. I have no evidence or reason to question the respondent’s position on this point.
83At the hearing, the applicant alleged that there was further discrimination when he was not considered for the job that became vacant because of the promotion of the successful candidate. However, this was not an issue that he raised in his earlier communications at the time he complained about not being selected for the Financial Manager position. Moreover, he indicated that he was not surprised that he was not selected as it was a position two positions above his job level.
84I conclude that the applicant has not established that he was denied promotion opportunities because of discrimination on a Code-protected ground.
Conclusions on other allegations relating to the period of employment
85The applicant alleged that he was denied training opportunities that were granted to others. However, he agreed that he never applied for a training opportunity.
86The applicant alleged that Mr. Hubbard made a comment or comments to the effect that the applicant did not dress in way appropriate for promotion and that the applicant felt this comment may have been racially based. The applicant was vague about what exactly Mr. Hubbard said and why he felt any such comment was racially based.
87Mr. Hubbard denied making any negative comment about the applicant’s clothes. He testified that he felt that the applicant always dressed appropriately and in a professional manner.
88I find that the applicant has not established that Mr. Hubbard made any comment about the applicant's manner of dressing that was contrary to the Code.
89It is not disputed that the applicant asked for a personal day on the occasion of his mother’s birthday. It appears that his previous manager had allowed such requests and Mr. Hubbard did not. Mr. Hubbard testified that the reason for the request was not a reason allowed under the company’s personal day policy. I find no evidence that this request was denied for any reason related to the Code
Conclusions about the respondent’s investigation of the applicant’s complaints
90There is considerable evidence that the applicant felt that he was being treated unfairly during his employment and he did state that he felt that he was being “discriminated against.” However, the context of those complaints was that the applicant was complaining that he was being treated unfairly and do not indicate a complaint of discrimination under the Code.
91The only time that the applicant explicitly indicated that he felt that he had been discriminated against on the basis of a Code-protected ground was his March 13, 2012 email to Mr. Hubbard, mentioned earlier:
I have been severely discriminated maybe because of my heritage on several issues and if it can be resolved by you it is OK or else I will have to move to the next several levels to get my right.
92As noted, this email occurred in an email chain about the amount of the applicant’s bonus. It is true that Mr. Hubbard did not ask the applicant about the allegation of severe discrimination because of heritage. However, it is also true that the applicant did not pursue the allegation any further. This was true in his communications with the respondent in the post-termination period where he again complained of “discrimination” in the sense of unfair treatment but did not articulate any Code-protected ground.
93The applicant conceded that, except for the one email to Mr. Hubbard, he never raised any Code-related concerns with the respondent and never made any complaints to the Human Resources department about his allegations of unfair treatment. He agreed that the respondent has a comprehensive complaints process and discrimination and harassment policies and that he was aware of those processes and policies during his employment.
94While an employer has a general duty to investigate allegations of discrimination, under the Code, an employer is obliged to investigate allegations of Code-protected discrimination and not general allegations of unfairness.
95In this case, with the possible exception of the one email to Mr. Hubbard, the applicant never raised any allegations that his Code-protected rights had been infringed either during his employment or in his communications with the respondent after his employment ended.
96Finally, the applicant alleges that the termination of his employment was unlawful because he was not provided with progressive discipline prior to the termination. To the extent that his allegation is relevant to the issue of whether the applicant’s Code-protected rights were infringed, since the applicant’s employment was terminated on a without cause basis and not on a with cause basis, he is not correct in this assertion that his employment could only be terminated after progressive discipline.
DECISION
97The applicant has not shown that is more probable than not that he experienced discrimination contrary to the Code during his employment, or that race, colour or ethnic origin were factors in the decision to terminate his employment, or in respect of the communications with the applicant after the termination of his employment
98The Application is dismissed.
Dated at Toronto, this 21dt day of January, 2014.
“Signed By”
Brian Cook
Vice-chair