HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Murat Umac
Applicant
-and-
Custom Black Inc.
Respondent
DECISION
Adjudicator: Colin Johnston
Indexed as: Umac v. Custom Black Inc.
APPEARANCES
Murat Umac, Applicant
Dr. Emir Crowne, Counsel, and Joshua Gautreau, Student-at-Law
Custom Black Inc., Respondent
Daniel Scott, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of race, colour, place of origin, citizenship, ethnic origin and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2A hearing was scheduled for July 2 and 3, 2015. During the course of the hearing, I heard evidence from the applicant, his former supervisor, Jeff Belcher, and the respondent’s owner, Matt Jessop.
Preliminary Matter – Use of Interpreter
3At the commencement of the hearing there was an issue raised as to whether the applicant’s former wife could provide translation when the applicant testified. I denied this request on the basis that the applicant’s wife was not a qualified translator and that she had an obvious bias in this case. On the latter point, I noted that the applicant’s former wife provided a written statement to the Tribunal in support of the Application which was highly critical of the respondent.
4I ordered that the hearing continue with the applicant’s next witness to give the Tribunal time to find a translator. The Tribunal heard the evidence of the applicant’s first witness.
5The applicant then advised that he wished to waive his right to a translator. The respondent objected, arguing that the quality of the evidence would be compromised if the applicant did not testify with the aid of an interpreter.
6I requested, with the parties’ consent, to speak to the applicant privately to gauge his level of English comprehension. I found his English comprehension to be good but he acknowledged that he understood about 80% of what was said in the proceeding so far that day. I concluded that he would benefit from the use of an interpreter. The hearing was then adjourned to the next day when a qualified translator was made available by the Tribunal.
Background
7The applicant is an individual who self-identifies as Turkish and is of the Muslim faith. He came to Canada in 2008. He obtained Canadian citizenship sometime between 2013 and 2014.
8The respondent is a small automotive shop that does electroplating for automotive parts. There are approximately four or five full-time employees who work at the shop, as well as the owner, Matt Jessop.
9The applicant began his employment with the respondent in August 2010. In November 2011, he quit his job when he discovered that a new employee was hired on at a higher start rate then the applicant was earning. Up until October 2011, the applicant was receiving $10.50 an hour. Through the intervention of his supervisor the applicant received a wage increase to $12.00 an hour. Around the same time, a new employee was hired at $14.00 an hour. This led the applicant to believe that he was being discriminated against and he quit his job in protest.
10From November 2011 to August 2012, the applicant worked for another automotive company. He was rehired by the respondent in January 2013.
11The applicant stated that he agreed to return to work for the respondent on the understanding that he would be rehired at $14.00 an hour and receive an annual wage increase of $1.00 an hour. Matt Jessop confirmed that he agreed to rehire the applicant at $14.00 an hour, but disputed there was any agreement to provide annual wage increases.
12The applicant did not receive a wage increase in 2014. The applicant stated that he approached the owner, Matt Jessop, in the early spring of 2014 to ask about his wage increase. Mr. Jessop told him that he would think about it but never got back to him.
13In July 2014, he discovered that another employee, also hired in 2013, had received raises in 2013 and 2014 bringing his wage rate to $16.00 an hour, which was $2.00 more than what the applicant was earning. The applicant felt that his employer was again discriminating against him and he again resigned his employment in protest.
14The applicant alleged that this was part of a pattern of discrimination on the basis of ethnicity, religion and citizenship. To that end, the applicant pointed to derogatory comments made by the respondent’s owner, Matt Jessop, that were racist and targeted his religion. The applicant also pointed to an incident in 2011 when he was being singled out for discipline for not wearing safety gear.
Evidence
Jeff Belcher
15Jeff Belcher was hired by the respondent in August 2011 as a general labourer at a start rate of $13.00 an hour. He testified that he was promoted to shift supervisor almost immediately and began working on the afternoon shift with the applicant. The two were the only employees on afternoons. Mr. Belcher came to the respondent’s shop with some experience working at a chemical company. He needed little training to do the job which explains why he garnered a higher starting wage than the applicant.
16He testified that he received a raise of $1.00 an hour when he moved to the shift supervisor position and received regular wage raises thereafter.
17Mr. Belcher described the applicant as the hardest-working person at the respondent’s shop. He testified that the owner of the shop never raised any criticism about the applicant’s work ethic.
18When he began working with the applicant, he learned that the applicant was earning only $10.50 an hour. He approached Mr. Jessop and asked on the applicant’s behalf whether he could receive a wage increase. Mr. Jessop agreed and the applicant’s wages were increased to $12.00 an hour effective October 2011. Mr. Belcher testified that at the same time the applicant received a raise, the respondent decreased his hours by 10 hours a week. This effectively reduced his take home pay despite the raise.
19Mr. Belcher explained that his hours of work were also changed but not reduced. The applicant was the only worker in the shop whose hours of work were reduced. This was done at the same time the respondent hired on a new employee.
20Mr. Belcher testified that the applicant was frequently asked by Mr. Jessop to clean the washrooms in the shop. He observed this occur about 10-15 times over the course of his employment. He stated that the applicant was the only one asked to clean the washroom. Mr. Belcher admitted that he did not work on the day shift so he could not be certain whether employees were asked to perform that duty on days, but from his observation the washrooms were never cleaned on days.
21Mr. Belcher further testified that the applicant was the only employee in the shop disciplined for not wearing his safety gear. According to company rules, employees were required to wear safety glasses, work boots and special visor and apron that was used when working on the chemical lines. He explained that this rule was never enforced and that few employees wore their safety equipment at all times. He admitted that he himself did not always wear his safety glasses. He also observed Mr. Jessop not wearing his safety equipment at times.
22Moreover, he observed other employees not wearing their safety equipment in the presence of the owner and nothing was said to them. He felt that the owner was specifically targeting the applicant when others were guilty of the same conduct.
23Mr. Belcher testified that the Mr. Jessop constantly complained about the applicant’s lack of English skills. He did not understand why this was a concern as the applicant’s English had improved over the course of his employment and it was never a barrier to him performing his job.
24He stated that Mr. Jessop confided in him that he was planning to “get rid” of the applicant when he returned to Turkey for a funeral but never followed up on the threat.
25Mr. Belcher testified that at one point Mr. Jessop observed the applicant praying at the front of the shop and made the following comment, “What the fuck is he doing? He’s kneeling on a carpet. Oh he’s praying. I can’t have him pray at the front. It will look bad to customers.” He explained that Mr. Jessop then offered the applicant an office to pray in from that time forward. Mr. Belcher could not recall when this comment was made but believed it was sometime during the second term of the applicant’s employment.
26Mr. Belcher described another incident involving a racist comment that Mr. Jessop made during a summer when Mr. Belcher’s son was working in the shop. Mr. Belcher explained that the water purification system for the shop had shut down and needed repair. Mr. Jessop came up to him and made the comment, “We need to nigger-rig it”. He understood this to mean that they needed to poorly rig it together using whatever materials were handy. He stated that this comment was made in the presence of his son, who is bi-racial.
27Mr. Belcher was offended by the comment and told Mr. Jessop that his son heard what he had said. He described Mr. Jessop becoming flush in the face and embarrassed by what he said. He asked Mr. Belcher if he should go apologize to his son. Nothing further came of that incident. Mr. Belcher recalled this incident taking place during the summer when the applicant was working at another shop.
28Mr. Belcher described another conversation with Mr. Jessop where he made a comment, “towel heads are coming to this country taking jobs from Canadians”. He testified that he did not understand why Mr. Jessop made this comment as their conversation had nothing to do with immigrants to Canada but rather was about the frustration of dealing with difficult customers. Again, he was not sure when the comment was made but believed it was sometime in 2012 or early 2013.
29Mr. Belcher further stated that Mr. Jessop told racist jokes from time to time but did not provide any particulars of what was said or when the jokes were made. The applicant was not present when the comment was made.
30Mr. Belcher acknowledged that Mr. Jessop never said anything negative about the applicant’s race, ethnicity or religion other than the comment about him praying at the front.
Murat Umac
31The applicant was born in Turkey. He came to Canada in 2008. He applied for a job with the respondent’s shop in 2010, answering an advertisement on the website Kijiji. He professed that his English skills were not very good at that time and that his wife accompanied him to the job interview to provide translation.
32Once hired, he was trained on the job by the shop’s previous manager. It was explained that there are two chemical lines in the shop, the anodizing and oxidizing lines. Each involve different processes. New employees are trained to work both the anodizing and oxidizing lines. The applicant was initially trained on the anodizing line but was not interested in operating that line. Nevertheless, he frequently assisted Mr. Belcher on the anodizing line if there was no work to do on his side.
33The applicant testified that he chose not to work the anodizing line because he felt that the employees were falsifying work orders by claiming that work was being heavy-coded when it was not. The applicant claimed he did not want to participate in this activity for moral and religious reasons. This was not pled in the Application. I give little merit to this allegation, as it appears that the applicant had no quarrel with assisting others who worked on the anodizing line. It was also the evidence of the respondent, which I accept, that the invoicing was not done by the employees at the back of the shop, but rather was done by the sales staff, so the applicant would have had no involvement in preparing these invoices.
34The applicant acknowledged that Mr. Jessop told him that he would receive a $1 an hour raise if he worked both the oxidizing and anodizing lines but he declined this offer. He testified, however, that he was never told that he would be denied future raises if he did not learn both lines. Similarly, he was never told that he needed to improve his English skills in order to get a raise.
35The applicant testified that he received a letter of discipline in 2011 for not wearing his safety gear. The applicant stated that he signed the letter because his manager told him that it simply acknowledged that he understood the new health and safety rules.
36The applicant admitted that at the time his English comprehension was still not very good and he did not appreciate that the letter was disciplinary in nature. It was not until he took the letter home to his wife to read that he realized that this was a disciplinary letter. This made him very angry as none of the other employees in the shop wore their safety gear. He stated that the next day he went to the manager and demanded that he return the signed letter which he did. The applicant then tore up the letter. He never spoke to Mr. Jessop about this incident.
37With respect to the issue of the safety equipment, the applicant acknowledged that he did not always wear his safety glasses, shield and apron. He explained that few employees followed this rule. It was also hard to wear his face shield when he worked on the oxidizing line as it tended to fog up. What concerned him was that he was only one disciplined for not wearing safety gear despite the fact that no one else followed the rules.
38The applicant testified that when he first worked for the respondent, he was the only one asked to clean the washroom. He acknowledged, however, that when he was rehired back in 2013 this practice changed and other employees were asked to clean the washroom.
39The applicant explained how Mr. Belcher assisted him in getting a raise in 2011 to $12.00 an hour. However, at the same time he received the raise his hours of work dropped substantially. The applicant stated that he was the only employee who had his hours decreased in 2011. No documentation was put forward to substantiate the applicant’s claim that his hours of work were reduced during this period.
40The applicant stated that he quit his job in November 2011 when he became aware that the respondent hired another employee, Rick, at $14.00 an hour. His decision to resign was based on his feeling that he was being undervalued and discriminated against.
41The applicant found work at another shop almost immediately and worked for approximately 6 to 7 months. He was ultimately terminated from that employer for reasons unstated. At the end of 2012, he was approached by Mr. Belcher, on behalf of the respondent, and asked to return to the respondent’s shop. He agreed to return on the condition that he would start at $14 an hour and receive a $1 an hour annual wage increase, thereafter.
42He explained that he quit his job for a second time in July 2014 because he did not get the annual wage increase that was agreed to when he was rehired in 2013. He testified that he approached Mr. Jessop sometime around March 2014 and asked why he did not receive his annual wage increase. He stated that Mr. Jessop told him that he would get back to him in a couple days but never did. Another two months went by and he approached Mr. Jessop again but he still received no answer. He felt that this was disrespectful and decided to resign in July 2014. He later found out that another employee, Brad, who has hired in 2013 had received wages increases in 2014. This cemented his view that he was being discriminated against.
43The applicant acknowledged that he was never refused the opportunity to pray. He also acknowledged that at no time did anyone in the shop including Mr. Jessop say anything negative to him about his race, ethnicity or religion.
44He did state, however, that when he first started working at the shop some of the employees including Mr. Jessop would say “You fucking Turkish people are crazy”. He explained that this comment was a reference to the frenzied pace he sometimes worked. This allegation was never raised in the Application itself. The applicant explained that he did not raise this as an issue, as he did not take offence to the comment. He felt the comment was said in jest and he himself participated in the joke.
Matt Jessop
45Mr. Jessop testified that he hired the applicant in 2010. At his time of hire, the applicant had little work experience and his English skills were poor. The applicant’s wife accompanied him to the interview to provide translation. Mr. Jessop felt that he was taking a risk but was willing to hire him as a general labourer starting at $10.50 an hour.
46Mr. Jessop explained that he would give raises to employees who expanded their skill set and took on more responsibilities in the shop. He explained that other employees received wage increases because they were willing to run both lines. The applicant was not interested in learning both sides of the operation and was only interested in running the oxidizing line. Had the applicant been willing to learn the anodizing line he would have given him an automatic raise of $1 an hour.
47He stated that the applicant was not interested in taking on other responsibilities such as answering the phones or opening and closing the shop. His English skills remained poor in his first term with the company but improved by the time he was rehired in 2013. He felt that the applicant was still not able to interact with customers, which was expected of other employees, because of his limited language skills.
48He explained that most of his customers come to the back of the shop with their orders. Employees are expected to take orders and deal with the customers one-on-one. He believed that the applicant was not able to do this because of his language skills.
49Mr. Jessop felt that although the applicant earned less money, he enjoyed other perks not offered to other employees. For example, he allowed the applicant more time off work to travel to Turkey to get married and to visit his family. He also allowed the applicant time off to take truck-driving lessons. He stated that he encouraged the applicant to better himself by learning new skills.
50In response to the allegation that the applicant’s hours of work were cut back in 2011, Mr. Jessop explained that the applicant’s hours were never consistent and would fluctuate between 30-40 hours per week. When his hours were cut back in 2011 it was because things were slow in the shop. The respondent put into evidence records, which support its claim that the applicant’s hours of work fluctuated and there was no reduction in the applicant’s hours of work following his raise in the Fall of 2011.
51In response to the allegation that the applicant was the only one asked to clean the washrooms, Mr. Jessop explained that it was everybody’s responsibility to clean the shop when things were slow. The applicant was not the only one asked to clean the washroom. It was his expectation that anyone not running line should be using their time to clean the shop, including the washroom area.
52The respondent denied the allegation that the applicant was singled out for discipline for not wearing his safety gear. He stated that other employees were also disciplined for not wearing safety gear during this time. No documentary evidence was put forward to substantiate this claim.
53Mr. Jessop explained that the chemicals used on the oxidizing line where the applicant worked were more dangerous than the chemicals used on the anodizing line where most of the other employees worked. He stated that he repeatedly told the applicant to wear his safety bib and visor because of the danger of chemical burns. Mr. Jessop described an incident which sent himself to the hospital’s intensive care unit when he was burned by chemicals on the oxidizing line.
54He testified that the applicant was repeatedly warned by him to wear his safety gear while working on the oxidizing line in close proximity to the chemicals and he ignored these requests. Mr. Jessop explained there was a difference between not wearing safety equipment in the plant and not wearing safety equipment at the work station in close proximity to the chemical. He acknowledged that he did not always follow the safety rules around the shop but the rules were more stringently applied when employees were working directly on the chemical lines and particularly the oxidizing line where the chemicals could cause serious burns.
55Mr. Jessop stated that following the applicant’s first resignation there were three other employees who were hired at a starting rate of $14.00 an hour. He explained that these employees started at a higher wage rate because their résumés specified that they had skills and experience beyond that of the applicant. However, he soon realized that these employees had overstated their qualifications and they were dismissed shortly thereafter.
56Mr. Jessop acknowledged that he agreed to rehire the applicant at starting rate of $14.00 an hour because of his previous work experience. He explained that he hired another employee, Brad, around the same time at a lower starting rate of $12.00 an hour. He testified that he decided to lower the start rate to $12.00 an hour for new hires, because of his experience with the last three hires who claimed to have the skill and abilities to do the work but proved to be lacking in those areas.
57Mr. Jessop acknowledged that by the end of 2014, Brad received a wage increase to $14.00 an hour and by July 2014, he was earning more than the applicant. He explained that Brad earned wage increases because he learned to work both lines, he took on more responsibilities such as answering the phones, and opening and closing the shop. I heard evidence that Brad was promoted to the afternoon supervisor position in July 2014 and was earning $16.00 an hour.
58Mr. Jessop denied that he agreed to guarantee an annual wage increases for the applicant when he was rehired in 2013. He also denied that the applicant came to him in 2014 inquiring about a wage increase.
59Mr. Jessop acknowledged that other employees received wage increases without asking, so long as they were hard working. He explained that he did not give the applicant an annual wage increase for a number of reasons including: his tardiness, his absence for a lengthy period going to Turkey, his threats to quit, and his limited English skills. However, there is no evidence to suggest that the applicant was ever spoken to or disciplined for these shortcomings. Mr. Jessop admitted that he overlooked the applicant’s tardiness so long as the applicant completed his work.
60Mr. Jessop questioned the applicant’s motives for resigning in 2014, stating that the applicant approached him in the Spring of 2014 and asked if he could be laid off so he could apply for Employment Insurance (“EI”) benefits and then go to Alberta with Mr. Belcher to look for work. Mr. Jessop stated that he refused this request as it would amount to EI fraud. The applicant in his testimony admitted that he was considering moving to Calgary but denied that these statements were made regarding EI benefits.
ANALYSIS
Delay
61At the hearing, I asked the parties to make submissions about the timeliness of the allegations dating back to the applicant’s first term of employment between 2010-2011. To that end, I asked the parties to focus on the fact that there appeared to be a gap greater than one year between the time the applicant resigned his employment in November 2011 and the date he was rehired in January 2013.
62The applicant argued that all of the allegations were timely as they represented a series of incidents of discrimination connected to allegations, which fell within the one-year time limit. The applicant did not see the gap between the applicant quitting in November 2011 and his return in January 2013 as being significant, as there were other incidents of discrimination which fell within that period. There was no submission regarding the delay being incurred in good faith.
63Section 34 of the Code states,
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
64Under section 34, the Tribunal has no jurisdiction to deal with allegations filed more one year after the incident, or the last incident in a series of incidents, unless it is satisfied that the circumstances in subsection 34(2) exist.
65It appears from the evidence that the applicant did not have any contact with the respondent between November 2011 and January 2013 when he was working for another employer. There is clearly a gap of one year between his two terms of employment.
66The applicant argued that were other incidents of discrimination during the gap period. The only incidents alleged during this period is the allegation that Mr. Jessop made a racist comment in front of Mr. Belcher and his son and the allegation that Mr. Jessop said, “towel heads are coming to this country taking jobs from Canadians”.
67With respect to that incident, I note that the applicant was not present when these comments were made and in fact was not employed with the respondent at the time these incidents took place. It is my view that the reference to a “series of incidents” described in s.34(1) of the Code refers to incidents of discrimination experienced by the applicant and does not apply to incidents which occurred when the applicant was not employed and had no contact or interaction with the respondent.
68The Tribunal has ruled that that a gap of more than one year between incidents in a series would in most cases interrupt the series: see Savage v. Toronto Transit Commission, 2010 HRTO 1360; Chintaman v. Toronto District School Board, 2009 HRTO 1225; and Dewdney v. Toronto Transit Commission, 2014 HRTO 23. However, the Tribunal also has stated that the one-year gap principle should not be applied rigidly particularly when there is a connection or nexus between alleged events: see Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927.
69I accept that there is a nexus between the evidence that the applicant earned less than other employees during his first term of employment between 2010 and 2011, and the allegation that he continued to experience wage discrimination during his second term of employment.
70I do not think there is a similar nexus between the allegation that the applicant was disciplined in 2011 and the allegations raised during his second term of employment. The imposition of discipline was a discrete incident that is unrelated to any further pattern of discipline.
71Similarly, there appears to be little nexus between the allegation that the applicant was singled out to clean the washroom during his first term of employment and later allegations of discrimination. In fact, it was the applicant’s evidence during his second term of employment that other employees were asked to clean the washroom.
72For this reason, I dismiss the allegations of discrimination which are described in the applicant’s first term of employment (2010 to 2011) as untimely and beyond the jurisdiction of the Tribunal to consider, save and except the allegation regarding wage discrimination.
Discrimination on the Basis of Creed
73It is alleged that Mr. Jessop made negative comments about the applicant praying at work, that it would “look bad” in front of customers. The evidence is that these comments were made in front of Mr. Belcher and not in the presence of the applicant. It appears that the applicant was not even aware that the alleged comments were made until he filed his Application. Mr. Jessop denied that these comments were made and submitted that the comment made no sense, as the customers come to the back of the shop and not the front of the building where it was alleged the applicant was observed. He acknowledged that he did offer the applicant a private area to pray but this was to give the applicant some privacy.
74The evidence as to whether the comments attributed to Mr. Jessop were, in fact, made depend on an assessment of credibility. On that point, the respondent submitted that Mr. Belcher has an obvious bias in the case as he is friends with the applicant. The respondent further stated that Mr. Belcher came to the hearing with an agenda, but did not explain what exactly that agenda may have been.
75Mr. Belcher admitted that he had become friends with the applicant outside of work. Mr. Belcher also stated that he no longer worked for the respondent. I was not provided any details as to why Mr. Belcher left his employment with the respondent. There was little evidence to suggest that he was biased in anyway other than his friendship with the applicant. I accept that Mr. Belcher was a forthright witness.
76For this reason, I accept Mr. Belcher’s evidence that Mr. Jessop made the comments that he attributed to him. With that said, it is not clear that the comments attributed to Mr. Jessop were meant to be derogatory. It may be that Mr. Jessop felt that it would “look bad” if customers came into the shop and saw the applicant praying. It does not appear that he took any steps to prevent the applicant from praying in accordance with his faith. He simply provided the applicant a private area to pray. There was no evidence to suggest that Mr. Jessop or anyone else in the shop treated the applicant differently or made any negative comments about his religion or his religious practices. Accordingly, I find that the applicant was not discriminated against on the basis of creed.
Wage Discrimination
77There is no dispute that the applicant was rehired in January 2013 at $14 an hour. The applicant negotiated this start rate as a condition of his re-employment. The Tribunal heard evidence that other employees were hired at the same starting rate of $14 an hour at that time.
78I do not think there is anything discriminatory about the applicant’s start rate when he was rehired in 2013. It was the same or higher than other new hires in that period of time.
79It does appear, however, that the applicant was treated differently when it came to ongoing wage increases. I heard evidence that another employee, Brad, received wage increases in 2013 and 2014 and by June 2014 his wage rate surpassed that of the applicant.
80I accept that Brad and other employees received higher wages because they took on responsibilities that the applicant was not willing to do. But according to Mr. Jessop, the added responsibility of running both lines justified a wage increase of $1 an hour. With that said, I also note that although the applicant did not run the anodizing line, much of his work was dedicated to assisting those who did.
81I also accept that Brad would have received a wage increase when he was promoted to the position of afternoon supervisor. According to the undisputed evidence of Mr. Belcher, his promotion to the afternoon supervisor position garnered a $1 an hour increase.
82This does not explain why Brad received a total increase of $4 an hour between 2013 and 2014, whereas the applicant received no wage increase at all. While some of Brad’s wage increases are explained by his willingness to take on more responsibilities, the other $2 an hour raise lacks any explanation.
83It is important to note that Brad was not the only employee to receive annual wage increases. It was Mr. Belcher’s unchallenged evidence that he and other employees also received regular wage increases through the course of their employment. The applicant appears to be the only employee who did not benefit from regular wage increases.
84Considering all of the evidence, I am left with the impression that the respondent undervalued the applicant’s skills and experience. It appears that Mr. Jessop’s opinion of the applicant was formed early when he was first hired in 2010. The applicant was viewed as someone who came with little experience and poor English skills. Despite the fact that the applicant gained important skills and experience on the job, his skills were not valued as highly as others including new hires.
85It is my view that Mr. Jessop also underestimated the applicant’s English skills. I accept that the applicant’s English comprehension was not perfect but it had improved considerably during his tenure with the respondent. I also accept the evidence of Mr. Belcher that the applicant’s English was not a barrier to him performing his work and that he regularly interacted with customers who came into the shop.
86It is my view that the respondent used the English language issue as an excuse to deny the applicant regular wage increases, which were offered to other employees. This perception of the applicant was based in part on the view that the applicant was new to Canada and was from an ethnic background where English was not his first language.
87It also appears that Mr. Jessop saw it as significant that the applicant took more time off to visit family in Turkey. He viewed this time off as a perk for the applicant which other employees did not receive. He explained that this was one of the reasons why the applicant did not receive wage increases, despite the fact that the time off was taken as unpaid leave.
88The respondent unilaterally decided to lower the applicant’s wages due, in part, to the fact that he took more time off to visit his homeland, Turkey. There is no question that the respondent could have simply denied the applicant’s request for more time off. Alternatively, the parties could have negotiated terms that provided the applicant with more time off in exchange for a reduction in other benefits including future wage increases. But there was no negotiation in this case. I cannot help but find that the applicant’s request for more time off to visit his homeland was intrinsically linked to his place of origin and ethnic background and the respondent used this as a pretext to unilaterally deny him wage increases.
89For all of these reasons, I am satisfied that the applicant’s place of origin and ethnic background were factors that influenced the respondent’s decision to deny him raises. As a result, I find that the respondent discriminated against the applicant contrary to s. 5(1) of the Code.
90The applicant further alleges that his work hours were reduced in 2011 after he received a pay raise to $12.00 an hour. The applicant provided no documentary evidence to support this claim. The respondent’s evidence was that the applicant’s hours of work varied and were not always consistent from one pay period to the next.
91The payroll records provided by the respondent show that the applicant’s hours of work were reduced slightly for two pay periods following his wage raise increase in 2011 and then his hours returned to 40 hours per week. There is, in my view, insufficient evidence to support the applicant’s claim that his hours of work were purposely reduced during this period. For this reason, I decline to award any lost wages on this aspect of the claim.
Lost Income
92It is difficult to ascertain what the applicant would have received by way of wage increases had there been no breach of the Code. The applicant submits that he was rehired in January 2013 on the understanding that he would receive annual wage increases of $1 an hour. The respondent denies that there was any such agreement.
93It is not the role of the Tribunal to decide whether there was a “meeting of the minds” with respect to the terms of the applicant’s re-employment. The role of the Tribunal is to determine whether the applicant has been treated differently or disadvantaged based on prohibited grounds under the Code.
94The respondent acknowledged that another employee, Brad, received a $4 an hour increase over the same period that the applicant received none. I accept that $1 an hour was attributable to Brad’s willingness to run the lines on both sides of the shop. I further accept that another $1 an hour increase was attributable to Brad’s promotion to afternoon supervisor. This leaves the other $2 an hour wage increase.
95I see no reason why the applicant should not have received a similar $2 an hour increase within a year of his rehire date. There were no issues raised with his work performance during that period; in fact, the respondent described the applicant as a very hard worker. Mr. Jessop stated that there were other concerns with the applicant, namely his tardiness, but he testified that he not did raise this as an issue with the applicant so long as he got his work done.
96It seems reasonable that the applicant should be compensated for this difference in wages amounting to $2 an hour for the period January 2014 (the one-year anniversary of his rehire) to July 2014, his date of resignation.
97Similarly, it appears that the applicant experienced wage discrimination during his first term of employment. I accept that the respondent took some risk when it initially hired the applicant back in 2010, as the applicant had little experience and very limited English skills at that time. Nevertheless, it appears that the applicant proved himself to a be a hard worker. His initial lack of English comprehension was not a barrier to him performing his job. I accept that he would have earned less than other employees who were willing to take more responsibilities than he did. This, however, does not explain why the applicant received a smaller wage increase in his first term of employment than other employees. It also does not explain why the applicant was earning less than new hires despite working on the job for nearly 15 months.
98It was Mr. Belcher’s evidence that he and other employees received regular wage increases. Yet the applicant only received a raise when Mr. Belcher intervened on his behalf.
99Given all of this, I expect that the applicant should have received a raise, at the very least, upon the first anniversary (August 2011) of his initial start date. I heard evidence that just before the applicant resigned the respondent hired a new Rick at $14.00 an hour. Rick was hired at a higher start rate because of his previous work experience. I also heard evidence that sometime in 2012 the respondent hired a new employee, Brandon, with no previous work experience, at $12.00 an hour. Given the range in start rates, it seems reasonable that the applicant should have at least received a raise to $13.00 an hour, instead of $12.00 an hour which was offered to him after working 15 months on the job.
Lost Income, Post-Resignation
100The applicant is seeking lost wages in the period following his resignations. I appreciate that the applicant felt that he could no longer work for the respondent because his work was undervalued. But it was his decision to resign his employment. The respondent did not terminate him. His decision to resign in 2011 and 2014 was strictly voluntary.
101This is not a case where the applicant had no choice but to resign because of the discrimination he was experiencing. The applicant could have filed his Application and continued to work. If the respondent were to have made any reprisals there are provisions under the Code to address this.
102For this reason, I see no basis to award lost wages for the period after the applicant resigned his employment.
Punitive Damages
103In the Application, the applicant seeks punitive damages in the amount of $200,000. There was no argument or case law presented at the hearing to support this claim, although the Application itself referenced the Supreme Court of Canada’s decisions in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130 (“Hill”), and Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595 (“Whiten”).
104The Tribunal has stated that it is not empowered to award punitive damages and that such damages are not an appropriate remedy in human rights cases: see Rodrigues v. Toronto (City), 2011 HRTO 1307. The Supreme Court’s decision in Hill and Whiten do not change this analysis. Both of these cases involve appeals from Court decisions where there is no question that the Courts have jurisdiction to award punitive damages. The Tribunal does not have similar authority to award such damages. Accordingly, the Tribunal makes no order for punitive damages.
General Damages
105In this case, I think it is appropriate to award damages for injury to dignity, feelings and self-respect under the Code. In assessing claims for general damages, the Tribunal has primarily applied two criteria in evaluating appropriate compensation: (a) the objective seriousness of the conduct; and (b) the effect on the particular applicant who experienced discrimination: see Arunachalam v. Best Buy Canada, 2010 HRTO 1880.
106The evidence in this case supports a finding that the applicant experienced wage discrimination during two periods of his employment with the respondent.
107The Tribunal has issued higher damage awards in cases involving systemic wage discrimination: see Association of Ontario Midwives v. Ontario (Health and Long-Term Care), 2014 HRTO 1370. But this is not a case involving systemic discrimination. The facts in this case were unique to the applicant’s situation. The evidence of discrimination in this case was subtle based mainly on misperceptions of the applicant’s skill level. The respondent did not display any ill will toward him. The other allegations of discrimination raised by the applicant were not established because they were either untimely or the evidence did not support a finding of discrimination.
108There was little by way of evidence lead by the applicant to demonstrate how the alleged breach of the Code caused any injury to his dignity, feelings or self-respect. I accept that he was upset and personally affected by the fact that other employees were earning more than he did in the workplace. I also accept that he experienced hurt feelings, lower self-esteem and lost confidence because the respondent undervalued his contribution to the workplace.
109An order in damages in the amount of $2,000.00 is appropriate to address this breach of the Code.
ORDERS
110The Tribunal makes the following orders:
a. The respondent is ordered to compensate the applicant the difference between $13.00 an hour and the wage rate the applicant actually earned, for all hours worked in the period between August 2011 (one-year anniversary from initial hire date) and November 2011 (date of his initial resignation).
b. The respondent is ordered to compensate the applicant the difference between $16 an hour and the wage rate the applicant actually earned, for all hours worked between January 2014 (one-year anniversary from his rehire date) and July 2014 (date of final resignation).
c. The respondent is ordered to pay the applicant damages in the amount of $2,000.00 for injury to dignity, feelings and self-respect under the Code.
d. The respondent shall pay to the applicant pre-judgment interest on the full amount due under paragraph b. for the period November 2011 to the date of this Decision calculated pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
e. The respondent shall pay to the applicant pre-judgment interest on the full amount due under paragraph c. for the period July 2014 to the date of this Decision calculated pursuant to s. 128 of the Courts of Justice Act.
f. The respondent shall also pay to the applicant post-judgment interest from the date of this Decision calculated pursuant to s. 129 of the Courts of Justice Act.
Dated at Toronto, this 1st day of October, 2015.
“Signed by”
Colin Johnston
Member