Mahesh Malik v. Sears Canada Inc., 2015 HRTO 476

Human Rights Tribunal of Ontario

Between:

Mahesh Malik Applicant

-and-

Sears Canada Inc. Respondent

Interim Decision

Adjudicator: Eli Fellman Date: April 15, 2015 Citation: 2015 HRTO 476 Indexed as: Malik v. Sears Canada

Appearances

Mahesh Malik, Applicant Self-represented

Sears Canada Inc., Respondent Hena Singh, Counsel

Introduction

1This Application was filed on May 15, 2014 and alleges discrimination with respect to employment because of race and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) dated September 26, 2014, the Tribunal directed a summary hearing on whether the Application should be dismissed as having no reasonable prospect of success. The CAD explains at paragraph 4 that:

The Tribunal does not have the general power to deal with allegations of unfairness. It also does not have the power to deal with allegations of harassment that are unconnected to a Code ground. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Having reviewed the Application, it appears that the applicant may be unable to prove a link between the respondents actions and his race. As well, the applicant’s claims with respect to mental disability appear to be that the respondent caused him mental suffering by terminating his employment rather than a claim that the respondent discriminated against him on the basis of a mental disability when it terminated his employment. The Tribunal only has jurisdiction over claims of discrimination.

3On October 6, 2014, the applicant requested the opportunity to file written submissions on the issues identified in the September 26, 2014 CAD, as an accommodation for his medical condition. The respondent consented to the applicant’s request.

4By CAD dated November 20, 2014, the Tribunal granted the parties’ request to conduct the summary hearing in writing.

5The Tribunal has received and considered written submissions from both parties.

FACTS

6The respondent was employed by the respondent as a part-time sales associate from July 26, 2003 until his employment was terminated on May 16, 2013.

7The applicant asserts that he was very successful at his job and was given a number of awards, prizes and gifts due to his volume of sales. Despite this success, he received only one raise and no promotions during his employment. The applicant believes that this is due to his race. The applicant self-identifies as Indian.

8The Application asserts that a Store Manager who started in 2012 discriminated against him on a daily basis by not replying to his emails and not maintaining the applicant’s contacts with his Department Manager.

9The applicant’s Reply states that on many occasions the Store Manager directed racial slurs towards him such as “go back to your country you Paki”. His written submission also describes the Store Manager stopping him when he was leaving for the washroom during work hours because he was suffering from diarrhea due to medication and saying “you Indians are all the same”. The applicant did not specify when these alleged incidents occurred.

10The respondent objected to consideration of the washroom incident because it was not raised within a year of its occurrence.

11The applicant was granted a leave of absence between March 10, and April 15, 2013 to travel to India to respond to a legal proceeding. His initial request for leave to May 16, 2013 was refused.

12The applicant failed to return to work by April 15, 2013. The respondent sent him an email on April 24, 2013 advising him that if he was not back at work by April 29, 2013, his employment may be terminated. The applicant did not return to work by the respondent’s deadline, and his employment was terminated on May 16, 2013.

13The applicant alleges that he developed medical problems after being told his employment may be terminated if he does not return to work. He has submitted medical documents from both India and Canada to support this aspect of his claim.

DISABILITY

14The applicant appears to be asserting that the respondent is responsible for his post-employment medical problems because his termination was unfair and unwarranted. However, as identified in the September 26, 2014 CAD, the only issue that the Tribunal can consider is whether the respondent discriminated against him on the basis of a disability when it terminated his employment. The Tribunal has jurisdiction over claims of discrimination related to the Code, not general allegations of unfairness related to employment that are unconnected to a Code ground.

15Therefore, the Tribunal can only consider whether the respondent’s refusal to extend the applicant’s leave of absence and its decision to terminate his employment when he failed to return to work were discriminatory because they were related to his disability.

16The applicant does not allege that he told the respondent about any medical issues or disability prior to the termination of his employment on May 16, 2013. The applicant was in India at the time his symptoms allegedly first developed, meaning the respondent’s employees could not have known about his medical issues unless the applicant chose to disclose them.

17If the respondent had no knowledge of the applicant’s alleged disability prior to the refusal to grant him a further leave of absence and the decision to terminate his employment, the Tribunal cannot find that the applicant’s alleged disability was a factor in the respondent’s conduct.

18As there is no basis for the Tribunal to find that the respondent discriminated against the applicant because of disability, there is no reasonable prospect of success with respect to this part of the Application.

RACE

19In its Response to the Application, the respondent cited three reasons why the applicant’s employment was terminated. These include: his failure to report back to work at the end of his approved leave in April 2013; several instances of allegedly inappropriate conduct towards customers; and, improper merchandise returns/handling for the applicant’s personal gain.

20The applicant disputes the validity of these grounds for his termination, asserts that he was terminated due to his race. The applicant refers to the alleged racist statements made by the Store Manager and the fact that other employees were given raises and promotions to support his position.

21With respect to the respondent’s submission that the allegation contained in the applicant’s written submission for the summary hearing should be rejected as untimely, I note that the Application alleges that the Store Manager in question discriminated against him on the basis of race. The specific examples provided by the respondent in his Reply and written submission for the summary hearing can be considered particulars relating to the general allegation in the Application.

22The applicant’s allegation that the Store Manager made racist statements towards him, if proven, could result in a finding that the applicant’s race was a factor in the termination of employment. In order to determine whether these racist statements were made, the Tribunal must hold a hearing, consider evidence and assess credibility.

23Therefore, I cannot find that the applicant’s assertion that he was subject to discrimination on the basis of race has no reasonable prospect of success. The Tribunal shall schedule a hearing to consider this part of the Application, and the parties will receive a Notice of Hearing setting out the hearing dates and deadlines for the exchange of documents and witness will-say statements.