HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kelly Wootton
Applicant
-and-
The Beer Store #4115
Respondent
DECISION
Adjudicator: David Muir
Indexed as: Wootton v. The Beer Store #4115
APPEARANCES
Kelly Wootton, Applicant
Cassandra Hutchison Wootton, Representative
The Beer Store #4115, Respondent
Dirk Van de Kamer, Counsel
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 disability and creed. A late Request for Order During Proceeding filed by the applicant seeking to add an allegation of reprisal was granted in a Case Assessment Direction issued to the parties on February 2, 2015.
2A hearing in this case took place on February 26 and 27, 2015 in Toronto. I heard from the applicant. The respondent relied on the evidence of Bill Koeslag, Rhonda Brown and Craig Stephens.
3The applicant worked at the Beer Store in the summer of 2013. He suffered a minor soft tissue injury in early September 2013 and required a short break from his full duties. For three of his scheduled shifts following this injury, he was restricted from repeatedly lifting more than 5 lbs of weight. The applicant believes the fact of his injury and his very short and limited need for accommodation was used as a pretext to end his employment with the Beer Store. Most particularly his hours of work were drastically reduced after his injury until by early October he was not scheduled at all. He has not worked a shift of work since early October 2013. The applicant also alleges that the respondent threatened him with the possibility of working Sunday shifts in reprisal for his having filed this Application or because he required a period of accommodation.
4For the reasons that follow, I find that the applicant has failed to establish on a balance of probabilities that he has experienced discrimination on the basis of either of his creed or disability claims. I also find that there is no evidence that would establish on a balance of probabilities that the respondent reprised against the applicant for raising a Code issue with them or because he filed the Application. In the end, while the applicant initially had a reason to believe that he was treated unfairly as regards his hours of work, in fact, he was not. However, his sincere belief that he was being treated unfairly blinded him to the explanations that were offered to him and has coloured his perception of subsequent inter-actions of the respondent to his considerable detriment. I also find that there is insufficient evidence to establish that the respondent reprised against the applicant for filing this Application.
The Legal Framework
5The applicant makes essentially two allegations which, in my view, subsume the particular complaints outlined at paragraph 15 below. First, he alleges that he experienced harassment in employment because of a temporary impairment in function as a consequence of injury, whether or not it would constitute a disability under the Code. Second, the applicant alleges that his hours were reduced to zero as part of an effort to end his employment in reprisal for his having submitted a doctor's note which required some accommodation of his temporary impairment.
6The relevant provisions of the Code are set out here for convenience:
- (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.
7Harassment is defined in section 10 of the Code as follows:
"harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
8Reprisal is prohibited in section 8 of the Code:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
Reliability of the Witnesses' Evidence
9A brief note about the reliability of the parties' witnesses. Although many of the facts in this case are not controversial there are a small number of factual disputes which I have had to resolve. On these points I have generally preferred the evidence of the respondents over that of the applicant.
10The applicant appears to be a sincere person, but it is also clear that his recollection of events has been significantly influenced by his persuading himself that he was being treated unfairly by the respondent in relation to the distribution of work hours after he requested accommodation. As will be set out in more detail below, the applicant's initial reaction to the reduction in hours was not entirely unreasonable at the time. However, it is also clear that his belief at the time, and since, that what he experienced as egregiously unfair treatment related to his need for a brief accommodation is, in the end, baseless. It is clear to me that his firm conviction that he was being treated unfairly influenced to a significant degree his perception of events as they unfolded and his recollection of those events to this day.
11Consequently, the narrative of the Application exaggerates the mistreatment he received and includes clear mis-statements of fact. In his Application and in his evidence, the applicant leaves the impression that he was treated horribly by Mr. Koeslag and other co-workers, but his evidence at the hearing about what was said and done to him was not compelling and largely inconsistent with the facts as set out in the Application. So, for example, while it is not stated in the Application that Mr. Koeslag systematically shunned the applicant, at the hearing the applicant testified that Mr. Koeslag simply refused to speak with him after he handed him the doctor's note. However, when questioned about this alleged treatment, which is denied by Mr. Koeslag, the applicant kept referring back to his first shift after the accommodation would have expired. I note as well that the applicant insisted that this would have occurred on September 10, 2013 until it was pointed out that Mr. Koeslag was not at work that day.
12Similarly, despite what is described in the Application and in his evidence at the hearing as shocking treatment at the hands of co-workers and management, he was unable to recall in any real detail the conduct he complains of. So, for example, the applicant alleges in his Application that he "was shocked and dismayed that the employees made light of my state of health with no attempt by Mr. Koeslag to step in and discipline them in the face of a co-worker's disability." However, at the hearing the applicant agreed that Mr. Koeslag would have no reason to know about the single incident of allegedly hurtful comments about him made by co-workers because he was not present at the time and the applicant did not tell him about it or complain to anyone in management at the time – Mr. Koeslag is a member of the bargaining unit and has no authority to discipline. Moreover, the applicant's description of the comments of his co-workers, which he testified shocked and dismayed him, was very vague. Based on his evidence it is impossible to come to any definitive conclusion about what in fact was said by his co-workers. More will be said about this issue when discussing the few points of material disagreement.
13A central issue in this case is whether or not the applicant had claimed an accommodation in the application of the workplace rule that he work on Sundays. However, the evidence establishes that the applicant worked one Sunday in May 2013. He had no recollection that he had done so.
14I also note that the applicant, when confronted with evidence that contradicted his recollection and understanding of events, alleged fraud, forgery and conspiracy as opposed to attempting to explain or provide a rational explanation for the apparent contradiction. So, for example, when confronted with a business record created in the normal course of business that showed that he worked on Sunday May 19, he asserted that the records had been tampered with. Similarly, when it was pointed out to him that an employee who the applicant believed was junior to him was in fact senior to him the applicant alleged that the respondent had doctored its payroll records. He also at one point suggested that the union was part of a conspiracy with the respondent to treat him unfairly. These unfounded claims of fraud, forgery and conspiracy, without evidence to support them, are simply incredible and generally undermine his credibility as a witness.
15For all of these reasons, I have generally preferred the evidence of the respondent's witnesses when it is in conflict, although as I have said, there is not much that is in dispute in this case.
The Allegations
16In his Application the applicant makes the following specific complaints:
a. The applicant alleges that some employees made light of his state of health and his supervisor did not intervene;
b. The applicant alleges that his hours were reduced immediately after his injury and week of recovery although prior to his injury he had regularly worked 32 hours per week;
c. The applicant alleges that he complained about this to his supervisor who ignored him;
d. The applicant alleges that his hours remained reduced and he has not worked at all since October 2013; and
e. The applicant alleges that he was later offered the possibility of Sunday hours, but he could not work these hours due to church and family commitments.
17In his amendment to the Application, the applicant alleges that he was subject to reprisal in the form of a threat with respect to Sunday work because he had previously raised a Code concern and/or he had filed this Application. In particular, the applicant alleges that a letter he received from the respondent on May 8, 2014 was a reprisal for his having filed this Application.
The Facts
18The broad narrative of the facts is not controversial. The respondent is the Beer Store, a retailer of beer in Ontario and elsewhere in Canada. The applicant had been employed by the respondent for a number of years in another location in another town. He appears to have left that employment perhaps in 2009 and after returning to Owen Sound in 2013, applied to work at the Beer Store #4115 in the spring. It is this location where the applicant alleges he was subjected to conduct that was contrary to the Code.
19The applicant claims, and the respondent does not dispute, that he had an arrangement with the pervious manager of the two stores in Owen Sound that he need not work Sundays. He testified that he claimed this as a religious accommodation. The respondent claims that it was not aware of the precise nature of the accommodation but do acknowledge that the applicant generally took himself off the schedule for Sunday shifts. It is also not disputed that the collective agreement between the respondent and the trade union representing the applicant and other employees of the respondent requires that employees work Sunday. The manager with whom the applicant made the arrangement about Sunday work had a stroke shortly after the applicant began his employment and left the workplace.
20This case is primarily a dispute about the assignment of hours or work. The scheduling of hours of work is based largely on employee status and seniority within several categories of employees. Although the applicant had worked for the Beer Store in the past, he was treated as a new hire when hired in April 2013. He was also considered as a restricted temporary employee because of his new hire status. The applicant conceded that he did not really understand how hours of work were scheduled. So, for example, he did not know that he was considered a restricted employee because he was a new hire and continued to claim until the hearing that he was un-restricted.
21The restricted category of employees is at the bottom of the list, last of the categories of restricted/unrestricted; permanent part time; and finally full time permanent employees in the allocation of work hours – i.e. full time employees get 40 hours first followed by the other categories in reverse order.
22An un-restricted employee is one who is not a new hire and who is available Thursday, Friday and Saturday to closing each day. As indicated, although the applicant did not understand this at the time, he was a restricted employee during the summer of 2013 because he was considered to be a new hire. The applicant was at or near the bottom of the list at the material times when it came to the allocation of hours.
23It is also agreed that the hours of available work in the Beer Store's outlets fluctuates considerably based on a number of factors, but is clearly seasonal. This is particularly the case in cottage country locations where not only does the weather change, but the clientele does as well. The evidence establishes that the available work hours in this Beer Store could be as high as 200 in the summer months and as little as 120 hours in November of any given year.
24Summer being a busy time, the applicant was able to secure significant hours of work – many weeks working more than 30 per week. The respondent agrees that the applicant performed his duties adequately. It was the un-contradicted evidence of Bill Koeslag, a bargaining unit employee who made up the schedule for store #4115, that he was not aware of the arrangement that the applicant had made with the previous manager, but that the applicant's unavailability for Sunday work did not impact his ability to schedule for the summer and so it was not an issue. Mr. Koeslag testified, and this was not disputed, that all he knew about the issue was that the applicant had marked off Sunday's on a calendar in the office used for staff to identify particular days or periods of time they wanted to have off.
25It is also likely material to the issue of the allocation of hours that over the summer months an employee with a higher claim to hours than the applicant chose not to exercise his right to hours for most of the summer. More will be said about this employee below.
26That the applicant suffered a minor injury over the Labour Day weekend and was advised by his family physician on September 3, 2013 to avoid repeated lifting of weights over 5 lbs. is not disputed. The respondent acknowledges that it received a doctor's note for the applicant. There is a dispute about Mr. Koeslag' s reaction to the note. He testified that it was not a big deal in his view. The applicant on the other hand testified that Mr. Koeslag was visibility agitated by the note and remained so when he contacted Mr. Stephens in the applicant's presence. I will consider this issue below.
27It is not contested that the injury was a minor one and required minimal accommodation. The only concern was the ability of the applicant to work in the store alone in the event that a patron wanted a carry out. The applicant indicated to Mr. Koeslag that the restriction was on repeated lifting and as such he would not have a problem. The accommodation request might have impacted on three shifts of work over the week. It is not disputed that the applicant's hours of work began to be reduced dramatically immediately following the week in which he required accommodation and that by early October his hours were reduced to zero.
28The factual disputes between the parties relate to the applicant's alleged mistreatment by the respondent, but more importantly, the reduction in the applicant's hours of work and subsequent incidences in relation to the discussion of this dispute. In the applicant's view, these were all part of an attempt to fire him without actually firing him as his representative put it in her final submissions.
The Alleged Harassment
29As regards the allegation of harassment in reaction to the doctor's note and the minimal accommodation required, I find that these aspects of the Application are unfounded.
30As indicated above, the applicant alleges that Mr. Koeslag was visibly agitated by the doctor's note. Assuming without deciding that this was the case it is not clear how such a reaction was discriminatory. The applicant sought accommodation for his injury and his request was granted. The fact that his colleague who was responsible for scheduling the work hours expressed some level of concern to his Manager about the issue does not in my view tend to establish a prima facie case of discrimination. In other words, there was no adverse treatment or disadvantage visited upon the applicant as a result of this reaction.
31The applicant also claims harassment in comments made about him by co-workers. As previously indicated, what it is not clear from the applicant's evidence is precisely what it is that he heard. In the absence of a finding with respect to the content of these allegedly harassing comments I cannot draw any conclusions about whether or not they might reasonably be considered as unwanted. I also note that the comments were allegedly made once and were overheard by the applicant as opposed to being directed to him. In the circumstances I find that they would not constitute a course of vexatious conduct that would be reasonably understood to be unwelcome. Finally, even if some discriminatory comments were made that could constitute harassment under the Code they were not reported to the respondent and the respondent cannot be responsible for conduct of which they have no knowledge and no opportunity to remedy.
32Similarly, the allegation that Mr. Koeslag shunned the applicant after the doctor's note was tendered, which is denied by Mr. Koeslag, must be dismissed. To begin with, I do not accept the applicant's evidence on this point. I accept Mr. Koeslag's evidence that he spoke to the applicant on several occasions including speaking to him about the reasons for the reduction in his work hours. Even if I were to assume that this happened exactly as described by the applicant I find that it is not conduct for which the respondent can be liable. Mr. Koeslag is a member of the bargaining unit and has no supervisory authority within the workplace. The applicant did not raise this alleged conduct with his manager, Mr. Stephens.
Reprisal
33This case is largely a reprisal claim. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one's human rights. (See, Noble v. York University, 2010 HRTO 878 at para. 31.) To prove an allegation of reprisal, the applicant must establish on balance of probabilities such an intention and a link between the applicant's claim that he was a person with a disability and the subsequent actions of the respondent in this case.
34As indicated above, the central allegation in this case is that the applicant's hours of work were cut to zero in a matter of weeks after he submitted the doctor's note – and in the applicant's view the only explanation for this was that the respondent was unhappy about the note for some reason. At the centre of the applicant's suspicions that he was not being treated fairly was the treatment of another employee, BH. In my view it was the apparently (to the applicant) inexplicably differential treatment of this employee which fueled the applicant's belief that the respondent wanted him to quit and would stop at nothing to accomplish that goal, including forging documents and doctoring routine business records. At the time the applicant believed, not unreasonably, that BH was a new hire who arrived at the store, in his mind, coincidentally with his injury and return to full duties. Accordingly when he saw BH getting increased hours apparently at his expense, the applicant became convinced that the respondent was treating him unfairly and he concluded that it was because of the doctor's note. However, and it is not clear why this could not have been explained to the applicant at the time, BH was not a new hire but a seven year employee and unlike the applicant an un-restricted employee. Accordingly, in accordance with the scheduling priorities established by the collective agreement BH was entitled to hours in priority to the applicant.
35However, unbeknownst to the applicant, just as the applicant had with the previous manager, BH had also made an arrangement with Mr. Koeslag, who created the schedule in April/May of 2013, to the effect that he would come in to work if required to, but he had another job and was happy if the respondent distributed his shifts to others in the store for the summer. This is, according to the respondent's witnesses, not uncommon in a business that relies on a large number of part time employees who often have other jobs or other activities in their lives. The arrangement between BH and Mr. Koeslag ended in mid-August when BH indicated that he would like to be assigned some shifts. Contrary to the applicant's recollection of events and his theory of the case BH began to receive hours in mid-August so that before the applicant's injury and doctor's note BH was working more hours than the applicant.
36The business records with respect to hours of work for the material periods, which were accepted by all parties, establish that no one who was lower down the list for hours assignment received more hours than the applicant after the applicant's injury. Indeed two employees went to zero along with the applicant - one reached that status before the applicant did. As such, there is no objective basis to conclude that the reduction in the applicant's hours of work had anything to do with his having requested modified duties for a period of time.
37The applicant alleges that he complained about the reduction in his hours of work on a number of occasions. However, I find that when he complained about his treatment he received a response. I accept the evidence of Mr. Koeslag that he responded to the applicant's queries on at least two occasions. He testified that the trade union approached him on two occasions about the issue, after the applicant had spoken to him. He pointed to two notations he had made on two weekly schedules created during the material times indicating that he had discussion with the trade union on two separate occasions. The applicant agrees that the union intervened on his behalf with Mr. Koeslag. It also appears that the trade union was satisfied with the explanation that was given.
38The applicant's concerns were also discussed at a meeting held in the store on November 27, 2013 at the applicant's request involving the applicant, several members of management as well as the trade union. At the meeting, I find that it was pointed out to the applicant that his hours of work had been reduced because of the reduction of available hours. The applicant acknowledges that the union took the position at the time that the allocation of hours amongst the employees of this store was appropriate.
39To the extent that it is material to this case, it is possible that if it was pointed out to the applicant by someone, perhaps the trade union, that if he made himself available on Sundays there would be a greater pool of work hours and that would increase the possibility that he would be scheduled for some hours. The applicant did not testify that he made an express request for accommodation on creed grounds in respect of Sunday work at the November 27 meeting. The applicant's evidence about what was said on this point at the November 27 meeting was unclear, beyond asserting that the respondent knew about his accommodation. The respondent's witnesses all deny that there was any substantive discussion of working on Sunday at that meeting. I find that he did not make such a request at that time because he believed he had already done so and need not do so again.
40At the November 27 meeting, the applicant was told that he should complete a Statement of Availability form in order to be considered for hours. The applicant testified that he chose not to do so at that time because he was not satisfied with the response of the respondent to his concerns with respect to his hours of work. Accordingly, he was not considered for any hours between November 1, 2013 and May 1, 2014. There is no dispute about this.
Reprisal - The May 8, 2014 Letter
41The applicant's primary allegation in support of his amended reprisal claim relates to a discussion with Ms. Brown and subsequent letter sent to him on May 8, 2014.
42In February 2014 the applicant submitted a Statement of Availability. It indicated to the respondent that the applicant was available to work Monday to Friday from 9 a.m. to 6 p.m. and Saturday from 9 a.m. to 9 p.m. The applicant also wrote on the Statement of Availability "May Long Weekend".
43In late April 2014, Craig Stephens the Manager of the two Owen Sound stores, contacted Rhonda Brown, Manager of Employee Relations for the respondent, about the applicant's February Statement of Availability. It was the time to start making decisions about staffing for the summer and the respondent had questions about the applicant's availability.
44From the perspective of the respondent there were three issues with the applicant's Statement of Availability: First, it was not clear whether the applicant was claiming to be an un-restricted employee (the applicant was now eligible for un-restricted status) – because on the basis of the form he was not making himself available to close on Thursday, Friday or Saturday and accordingly would not be considered un-restricted when he was otherwise eligible to claim that status; Second, the reference to May Long Weekend was unclear, i.e. was he wanting to work that weekend, the week before or only afterwards; Finally, it was apparent to the respondent that the applicant was seeking an exemption from the requirement to work on Sunday. As a result of these issues, and Mr. Stephens conceded, the fact that he was aware that this Application had been filed, he contacted Ms. Brown, who also conceded that she was aware that this Application had been filed.
45Ms. Brown and the applicant agree they had a brief telephone conversation about these issues. The applicant alleges however that the issue of his working Sunday came up and he testified that Ms. Brown told him that if he did not work Sundays he would not get any hours. Ms. Brown denied that these issues were discussed in a substantive way and she specifically denies that she said that if the applicant did not work Sunday he would receive no hours.
46Consistent with her evidence on this point Ms. Brown sent a letter to the applicant, copied to a number of people including Mr. Stephens, on May 8, 2014 the text of which is as follows:
As per our brief conversation this afternoon you submitted an updated availability form in February of this year for which there are some questions surrounding your availability.
Normally availability is to be filled out each April and October, however your were not reminded of this in February when you completed your form indicating you will become available to work again in May. Please be reminded that in the future you will need to complete updated availability each April and October in accordance with the collective agreement.
In addition to this, your form did not indicate any availability for Sundays. I am not certain if this was an oversight on your part or you did this purposefully. Please note in accordance with the Collective Agreement, any temporary employee hired after 2002 is expected to have availability to work Sundays. Subsequently removing availability on this day of the week would result in an employee not being offered subsequent hours throughout the remainder of the week.
As discussed please contact your Store Manager, Craig Stephens at […] by Friday, May 16, 2014 in order to clarify your availability in terms of hours of availability, date you are available to return to work and your restricted/unrestricted status. Please note to be un-restricted, you must have availability from 5:00 p.m. on Thursday to closing on Saturday.
Failure to respond by the above date may result in your not being scheduled hours due to the uncertainty in your availability.
47The applicant testified that he did not read the letter carefully, but focussed only on the reference to Sunday work which he perceived as a threat and a reprisal. This is consistent with the allegations made in his request to amend the Application which is confined to the assertion that it was the reference to collective agreement provisions which require Sunday work that formed the basis of the reprisal claim.
48Ms. Brown testified that all new hires are required to indicate whether or not they are available to work Sundays and it is often the case that the provisions of the collective agreement requiring Sunday work is brought to the attention of employees. She also testified that there is a premium payment attached to Sunday work which encourages some to work the day when they might not otherwise choose to do so. She testified that she was aware of the fact that the applicant had filed this Application when she sent the May 8 letter, but denied that it affected the manner in which she dealt with the applicant. Mr. Stephens on the other hand testified that he believed that his contacting Ms. Brown was in part because he was aware of the Application.
49I questioned Ms. Brown about the arrangement made between the prior manager and the applicant concerning work on Sunday. Ms. Brown testified that she would have preferred if she had been informed of this issue and she was not. She also testified that if such a request is made the respondent would make some inquiries of the employee in consultation with counsel in order to determine if the request was bona fides and should be granted. She testified that if the applicant made such a request it would be considered by the respondent, but none was ever made.
50At the hearing when asked what he did in response to the letter the applicant stated that he did not know what more he could do. He initially did not indicate that he complied with the instruction of the letter by contacting Mr. Stephens, but when asked again, testified that he did speak with him "at some point". However, the applicant could not remember when he had done so and it was only when the date on the letter was pointed out to him that he testified that he would have done so before the deadline of May 16, 2014, but again could not be specific about when he did so.
51However, the applicant testified that when they spoke Mr. Stephens told him he would not get any hours because he had not filed the availability form in April as required. Mr. Stephens testified that the applicant did not contact him in any fashion until a week prior to the hearing.
52On these points I accept the evidence of the respondent over that of the applicant. In addition to the issues outlined at the outset to these reasons I note again the lack of clarity in the applicant's evidence about his treatment of the letter and his alleged call to Mr. Stephens. I also note that the allegation that Mr. Stephens told him he would not be assigned hours because his Statement of Availability was filed in February and not April is not contained in the applicant's statement of particulars which I directed he provide in support of his request to amend the Application. In addition, as pointed out by the respondent, there is the general implausibility of the allegation that Mr. Stephens would rely on the early filing of the availability form when the applicant had a letter in hand from the Manager of Employee Relations which acknowledged that the applicant had filed a Statement of Availability which the respondent was prepared to work with. This letter was copied to Mr. Stephens and if the applicant had read the letter carefully he would have been aware of that. The applicant relies on these mixed messages he allegedly received from the respondent, but could not explain why he would not have relied on Ms. Brown's letter in his conversation with Mr. Stephens or why he would not have contacted Ms. Brown and seek clarification of the respondent's position. I find that the applicant did not call Mr. Stephens as requested in the May 8, 2014 letter.
53The applicant's theory with respect to the reprisal allegation is that Sunday work in the May 8 letter was a reprisal because his availability to work Sunday had never been an issue previously. I find however, that the letter was not intended to punish him for having filed the Application or for his having requested accommodation in September 2013. Rather, the letter, on its face, was a request for information and clarification.
54I find that the applicant never made a formal request for accommodation of his creed. He did not testify that he had made such a request, but instead asserted that the respondent knew of his beliefs and religious need not to work Sundays. The belief that the respondent knew is not unreasonable and is based on the arrangement he had with his previous manager as well as the fact that in its Response, the respondent appears to acknowledge that he was being accommodated. The respondent acknowledged that its Response does state that the respondent was aware of the applicant's circumstances; however each of the three witnesses the respondent called all denied knowing about the specific arrangement made with the prior manager or more importantly, the particular nature of the applicant's need for accommodation. I accept their evidence. There is no evidence of the precise nature of the arrangement made with the prior manager and evidence that the applicant worked one Sunday in May 2013. In the end there is insufficient evidence to conclude that the respondent had actual knowledge of the granting of religious accommodation to the applicant.
55This conclusion is important in my view because in considering whether or not the evidence establishes that the respondent's conduct including the May 8 letter was in reprisal for the Application or the request for disability accommodation in September the focus is not on the perceptions of the applicant, but in what the respondent intended by its conduct.
56Whatever the nature of the arrangement with the prior manager had been the evidence also establishes without much doubt that the question of the applicant working Sundays never became an issue for the respondent again because as a practical matter Mr. Koeslag had been able to schedule the store in the summer of 2013 without any difficulty and had no reason to question the fact that the applicant removed himself from consideration for Sunday work for the summer. It only became an issue when the applicant filed the February 2014 Statement of Availability which squarely raised the issue for the respondent in a formal way. In response, the respondent appears to have followed their normal procedure in dealing with it although perhaps with a little more care than would otherwise have been the case because both Ms. Brown and Mr. Stephens knew that this Application had been filed.
57It is possible that the respondent was aware in a general sense that there might be an issue about the applicant's willingness to work on Sunday. So, for example, Ms. Brown agreed that she may have been aware that in his Application the applicant had asserted a creed claim, but I am unable to infer from the fact that Ms. Brown was aware of the existence of this issue that she intended the May 8 letter as a reprisal rather than what it was on its face a request for information and an instruction that the applicant contact his Manager to clarify the issues outlined in it.
58I also accept that the applicant might have been suspicious about what the respondent might be up to. However, I find that the May 8 letter was intended as what it appears to be, a request for clarification. I have found that the applicant did not respond to the respondent's request for clarification and accordingly he was not placed on the schedule for the May to October 2014 period. In all of the circumstances I am unable to conclude that the respondent intended to punish the applicant for filing this Application or having made a request for accommodation in September 2013.
59The applicant also claimed at the hearing that the respondent failed to provide him with a Record of Employment. Based on the limited evidence available to me, it may be that the respondent did not issue an ROE to the applicant, but there is no evidence whatsoever that this fact was connected in any way to any of the circumstances described above.
CONCLUSION
60The applicant remains suspicious of the respondent's scheduling system. It is true, as I indicated to the parties at the hearing, that the system has some unusual features and is also somewhat less than transparent. In the end, I am satisfied that the treatment of the applicant vis-à-vis his work colleagues, in particular BH, was not informed by any Code prohibited factors nor was any of the respondent's conduct intended in reprisal for the doctor's note and request for accommodation and/or the fact that he filed this Application.
61For all of these reasons the Application is dismissed.
Dated at Toronto, this 8th day of April, 2015.
"Signed by"
David Muir
Vice-chair