Thomson v. Physical Relief Telemedicine and Technology Health Care Solutions, 2015 HRTO 1112

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shawn Thomson

Applicant

-and-

Physical Relief Telemedicine and Technology

Health Care Solutions

Respondent

DECISION

Adjudicator: Colin Johnston

Date: August 20, 2015

Citation: 2015 HRTO 1112

Indexed as: Thomson v. Physical Relief Telemedicine and Technology Health Care Solutions

APPEARANCES

Shawn Thomson, Applicant

Self-represented

Physical Relief Telemedicine and Technology Health Care Solutions, Respondent

Elaine Knight, Representative

Introduction

1This is an Application filed on July 18, 2014, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment on the basis of disability. The applicant alleges that the respondent discriminated against him when his employment was terminated on December 19, 2013.

2The hearing of this Application took place on June 26, 2015. I heard evidence from the applicant and one witness for the respondent, Elaine Knight.

3The applicant has a physical disability, which significantly affects his mobility and the use of his hands and arms.

4The respondent is a small company based in London, Ontario, which operates in the home healthcare field. The company’s principal is Elaine Knight.

5The respondent hired the applicant through a wage-subsidy program offered by the Ontario March of Dimes. The program assists persons with disabilities to learn job skills and possibly gain permanent employment. The wage subsidy ran for a 13 week period from September 3 to December 2, 2013.

Evidence

6Ms. Knight testified that in the summer of 2013, she was approached by a representative from the March of Dimes and asked if she would be interested in hiring the applicant. At the time, Ms. Knight was interested in designing a website for her company and establishing a social media presence. She reviewed the applicant’s resume and was impressed with the fact that he had experience designing and implementing websites and social media plans.

7The applicant testified that it was his understanding when he was hired that the respondent was hiring him into a permanent position and that once the subsidy period ended, he would continue to do work maintaining the respondent’s website.

8Ms. Knight conceded that when she signed the contract with the March of Dimes, she communicated to them that she was interested in hiring the applicant after the wage subsidy ended. She explained that this offer was not unconditional and was contingent on the applicant’s performance during the 13 week period. It was her thought at that time, that if the applicant could create a website within the 13 week period, she would hire him on a few hours a week to update the content on the site. There was no evidence to suggest that the parties ever came to any agreement on hours of work or wage rates once the subsidy period ended.

9The applicant pointed to an email the respondent sent to the March of Dimes on November 22, 2013, which referred to the applicant performing “future work” as further proof that his employment was to continue beyond the subsidy period. Ms. Knight explained that her reference to “future work” in the email was referring to the 2 week period she extended the applicant’s contract when he became ill in mid-November. It was not a reference to permanent employment.

10The applicant began working in September 2013. He testified that before he started work, he informed Ms. Knight that he could only type 4 to 6 words per minute. Ms. Knight denied the two had this conversation but acknowledged that she assumed that because of his disability, the applicant was not a fast typist.

11The applicant testified that, it was his understanding, when he was first hired that he would dedicate the first 13 weeks to working on the website, and then begin work on designing and implementing a social media plan for the respondent’s business. The applicant explained that he began work on a website for the respondent. Ms. Knight, however, quickly sidelined this work and asked him to shift focus and begin working on a social media plan.

12On that point, Ms. Knight acknowledged that the focus of the applicant’s work shifted from developing a website to drafting a social media plan, but there was never any confusion that she wanted the latter to be completed. She stated that when she first spoke to the applicant about developing a website, he stated that he could have it completed in 6 weeks. She soon realized, however, that the applicant did not have the web-design skills to develop the website she was looking for. She recognized that expecting the applicant to develop a website over a 13-week period was too ambitious, so she decided that his time would be better spent working on a social media plan.

13The applicant submits that he was perfectly capable of putting together a website for the respondent, as he had experience designing websites for other organizations. He explained that the respondent wanted to add features to her website that he was not familiar with, namely video conferencing. This required him to do further research but was not beyond his capabilities.

14There is no dispute that shortly after the applicant started working in September 2013, he asked Ms. Knight if he could take an on-line course to assist him in the work that he was doing.

15Ms. Knight agreed to pay for the course with an understanding that the applicant would spend the next 8 weeks completing the course and then dedicate the final 4 weeks to putting together a social media plan. The applicant had a different understanding of the arrangement, namely that he would take the on-line course for 13 weeks and then begin working on a social media plan after the subsidy period ended.

16What is not in dispute is that Ms. Knight emailed the applicant on November 26 and asked him to send her a copy of something in writing outlining the work he had done on the social media plan. Ms. Knight testified that ‘red flags’ started to go up for her when the applicant did not respond to her request and instead asked when his next pay cheque would be ready.

17The applicant stated that he had no idea the respondent had concerns with his performance until the applicant sent him an email on December 19 expressing her disappointment with the quality of his work. He pointed to monthly evaluation forms, which the respondent submitted to the March of Dimes, which commented positively on his performance. The applicant states that these positive evaluations led him to believe that he was doing a good job.

18Ms. Knight explained that up until the end of November 2013 she was satisfied with the applicant’s work. It was only when he submitted his first and only written assignment, a 1.5 page outline of a social media plan, that she became dissatisfied with his work.

19Up to that point, the applicant had spent his time taking the on-line course paid for by the respondent. I heard evidence that the applicant performed some informal research in response to questions from the respondent about website capabilities. The respondent acknowledged that she was impressed with the applicant’s research skills and his knowledge in the area of web-design. She explained that this was all reported to her verbally. The only written project submitted by the applicant was the 1.5 page outline sent to her on December 16.

20I did not have the benefit of seeing a copy of the 1.5 page outline, as both parties deleted all record of it. Nevertheless, the applicant acknowledged that the document was 1.5 pages in length, unformatted and contained spelling errors. He asserted that the document was only meant to be a draft outline. He explained that he felt rushed for time, as the respondent wanted something in writing and was becoming increasingly impatient.

21The applicant put into evidence a copy of a social media plan, which he said was drafted sometime before December 16. He explained that this plan was not sent to the respondent at the time because it was still a work-in-progress. The document was 6 pages in length and appears to be very different from the 1.5 page outline that was submitted on December 16. It was formatted, well-written, coherent, and free of spelling errors.

22As stated previously, there is no dispute that Ms. Knight emailed the applicant on November 26, and requested that he send her an outline of the social media plan. The applicant could not recall when he started working on the outline. I heard evidence that he was ill sometime in November but this was prior to November 26. There is no dispute that the applicant submitted the outline to Ms. Knight on December 16.

23Ms. Knight testified that when she reviewed the outline she was very disappointed with the applicant’s work on his one and only written work assignment. She stated that she had allocated 80 hours of paid time for him to produce a social media plan and that all she received was this 1.5 page document which was unformatted, full of spelling errors, and impossible to read. It was at this point that she decided to end any employment relations with the applicant.

24The applicant testified that when he sent a copy of the outline to Ms. Knight she became very upset and rude with him and told him to stop working on the project. He was surprised with her reaction. He explained that he had submitted similar rough drafts to other organizations and had never received any complaints about the quality of his work. The applicant feels that he was never given the chance to demonstrate his abilities.

25He explained that he decided to keep working on the outline and spent an additional 12 hours editing the 1.5 page document and re-submitted it on December 19. The outline he submitted on December 19 was also 1.5 pages in length but was properly formatted and contained no spelling errors.

26He stated that Ms. Knight was not interested in reviewing his revised work and advised him that she was ending the employment relationship. There was no further communication between the parties after that point.

Analysis

27The applicant’s central complaint in this case is that the respondent terminated his employment due, in part, to his disability. The respondent submits that she never terminated the applicant’s employment; rather, she simply decided not to hire him on beyond the subsidy period because of the poor quality of his work.

28Much of the evidence presented by the parties focused on whether the applicant was hired into a permanent position or not. I do not think that issue is relevant to making a determination in this case. What is clear from the evidence is that the respondent chose to end her ties with the applicant because of his work performance. The issue then is whether the applicant’s disability was a factor in that decision.

29To establish discrimination, an applicant must be able to show that he or she is a member of a Code-protected group, that they were subject to adverse treatment and that the Code-protected ground in question was a factor in that adverse treatment: see Peel Law Association v. Pieters, 2013 ONCA 396 at para. 126.

30The applicant bears the onus of establishing discrimination on a balance of probabilities. Discrimination need only be one of the factors involved in the respondent’s decision to end his employment for there to be a violation of the Code.

31There is no dispute that the applicant in this case was disabled and that he suffered adverse treatment in that his employment ended in December 2013. However, there is, in my view, no evidence to establish that the applicant’s disability was a factor in the respondent’s decision to end his employment.

32According to the applicant, he was able to type approximately 4 to 6 words per minute. There is no dispute that Ms. Knight told the applicant on November 26 to submit an outline of his work on the social media plan. He did not do so until December 16. It appears from the evidence that Ms. Knight gave the applicant at least 3 weeks (or 60 hours paid work time) to produce the outline.

33In my view, there is no reason why the applicant could not have produced a more comprehensive, coherent outline in the time allocated to him. I heard evidence that the applicant became ill sometime in mid-November and was unable to work for approximately 2 weeks. The respondent does not dispute this fact. However, given the timing, it is apparent that this illness had no bearing on the applicant’s ability to complete the outline in the period November 26 to December 16.

34The 1.5 page outline he submitted on December 16 was acknowledged by both parties to be of poor quality. The fact that the applicant submitted work of similar quality to other organizations, without any criticism, is irrelevant. The respondent expected him to produce something more comprehensive and of better quality than what he handed in. This was a reasonable expectation given that the applicant stated on his resume that he had experience developing social media plans.

35In my view, the applicant was more than capable of producing quality work. I have reviewed the numerous emails between the applicant and respondent and there is no question that the applicant is capable of writing in a clear and coherent manner. I have also reviewed the 6 page social media plan that he submitted into evidence. That plan was formatted, well written, and devoid of spelling errors.

36It appears from all the evidence that the applicant simply left the job to the last minute and then rushed at the end to the get the project done. I accept that the applicant’s physical condition impedes his ability to complete type written work in short periods. However, the respondent provided him ample time (at least 60 hours paid time) to complete the outline and was simply dissatisfied with the work he submitted.

37The poor quality of his work relates to his decision to leave things to the last minute and is unrelated to his disability. I am satisfied that the respondent’s decision to end relations with the applicant was based solely on the quality of work he produced and was unrelated to his disability.

38For this reason, I conclude that the applicant has failed to establish any connection between the termination of employment and a violation of the Code.

39The applicant raised a number of collateral issues, which he argued was further evidence of discrimination. The first was the applicant’s assertion that the respondent did not have a consistent pay schedule. The applicant did not explain how this would have contributed to any finding of discrimination and I fail to see how this is relevant to a breach of the Code.

40Second, the applicant asserts that the respondent failed to pay him for the 12 hours he worked revising his outline between December 16 and 19. It is evident from the respondent’s email on December 16 that the applicant was not authorized to do any further work on the outline. Therefore, there is no basis for this claim. Again, the applicant did not explain how this would have contributed to any finding of discrimination and I fail to see how this is relevant to a breach of the Code.

41Third, the applicant submitted that the respondent failed to provide him with sufficient information to develop a proper social media plan. Upon review of the email communications, it appears from the November 26 email that Ms. Knight asked the applicant if he needed further information to complete a Social Media Plan she would provide it. There is no evidence that he followed up on this offer. With that said, it is not clear to me that the applicant needed more information about the respondent’s business to complete an outline. A review of the 6 page social media plan that the applicant put into evidence suggests that the applicant could produce such a document without knowing detailed information about the respondent’s business. Again I fail to see how this makes out a case for discrimination.

42Fourth, the applicant submitted that he was never given a clear job description and the respondent never provided him with any constructive criticism. He argued that the respondent led him to believe he was doing a good job. It was only at the end that the respondent expressed her displeasure with his work. This may all be true but it is not evidence of discrimination under the Code. There is no question that the respondent provided the applicant with positive reviews up to November 2013. However, the applicant had not submitted any written work to the respondent during this period. The respondent’s positive comments are based solely on her conversations with the applicant and the knowledge he held regarding web design and the use of social media platforms. It is evident that Ms. Knight’s comments were somewhat pre-mature and without basis, as the applicant had done little work for the respondent up to that point of time. I am left with the impression that her comments were meant to paint the applicant in a positive light to the March of Dimes, the organization that was subsidizing his wages and were not a true measure of his work performance.

43Fifth, the applicant stated that the respondent did not offer him any proper mentorship. Again, that may be true but it appears that both the applicant and the March of Dimes were well aware that the respondent had little to offer by way of mentorship and accepted her offer of employment regardless. Again, I fail to see how this is evidence of discriminatory conduct.

44Sixth, the applicant claimed that the respondent failed to provide him with notice of his termination. He further claimed that the respondent falsified his Record of Employment (ROE) with Service Canada stating that he was only hired on a contract basis for the subsidized period. Once again, I find that neither of these claims raises a breach of the Code. Ms. Knight explained and I accept her evidence that she had her accountant file two ROEs, the first to cover the period of the applicant received subsidized wages. The second to cover the 2 week period in December 2013 when the applicant’s employment was extended due to his illness in November. In that period, the respondent paid 100 per cent of his wages. I see nothing improper in the respondent’s actions in that regard.

45As to the lack of notice of termination, I accept that the applicant may have been lead to believe that his employment would continue beyond the subsidy period based on some of the earlier communications made by the respondent and the positive reviews he received. However, I accept Ms. Knight’s explanation that it was not her intent to guarantee the applicant permanent employment and that she viewed the subsidy period as being a type of probationary period. To that end, I note that there was no evidence that the parties negotiated any terms of employment beyond the subsidy period including hours of work or a wage rate.

46If there is any basis for a claim for failing to provide proper notice, this is not an issue that falls within this Tribunal’s jurisdiction. The applicant has not put forward any evidence to suggest that the lack of notice was related in any way to discrimination under the Code.

47Finally, the applicant claimed that Ms. Knight acted in a paternalist manner making him feel like she was doing him a favour by offering a work opportunity. This allegation was not pled in the Application. The applicant alleges that these comments were made during the one and only face-to-face meeting the parties had in September 2013. The applicant stated that similar comments were made during some of the video chats he held with Ms. Knight between September and November 2013. The applicant provided little by way of particulars as to what exactly was said but suggested that the Ms. Knight wanted him to know that she was doing him a favour by hiring him on.

48Even if I were to accept this submission, I prefer the evidence of the respondent that such comments were never made. The applicant provided little by way of particulars to substantiate this claim. I did have the benefit of reviewing a number of communications between the parties via email. I note that upon review of the emails that were provided, there is no evidence to suggest that Ms. Knight addressed the applicant in a paternalist manner.

49Moreover, it was also apparent from Ms. Knight’s testimony that up until December 2013, she saw a mutual benefit in hiring the applicant to assist her business in developing a website and social media presence. She did not view the relationship as simply charity.

Order

50For all of these reasons, the Application is dismissed.