Robert Jacobs v. Chelsea Home Furniture, 2015 HRTO 720

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Jacobs

Applicant

-and-

Chelsea Home Furniture

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: June 1, 2015

Citation: 2015 HRTO 720

Indexed as: Jacobs v. Chelsea Home Furniture

APPEARANCES

Robert Jacobs, Applicant

Self-represented

Chelsea Home Furniture, Respondent

Ricky Singh, Representative

Introduction

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

2The hearing was held on March 9, 2015. Both parties attended the hearing, the applicant with a support person and the respondent through a representative, Mr. Singh, who is also the sole owner of the respondent store. Both Mr. Singh and the applicant gave evidence, as did two other witnesses on behalf of the respondent.

background

3The applicant began working for the respondent store on June 16, 2012 and was terminated on January 21, 2014. His main duty was furniture sales, but he also did some furniture deliveries.

4The applicant alleges he was terminated five days after he informed his supervisor he was not able to deliver furniture for a month or two because he injured his back on January 16, 2014 while doing so.

5The respondent alleges the applicant was terminated because he left the store unattended, showed up late for shifts and was not a productive salesperson.

evidence

6The applicant testified he worked for the respondent store for about two years, during which all went well. His first manager was Renata Swayze and his second was Barbara Farkas, both of whom gave evidence. When Ms. Swayze moved within the mall to work at another store owned by Mr. Singh, Ms. Farkas who had been an employee in the respondent store became the manager.

7Mr. Singh testified he first met the applicant when he was moving furniture in the mall where the respondent store was located. He liked him immediately and hired him to begin in furniture sales the next day. The applicant testified he met Mr. Singh the day before he was interviewed by Ms. Swayze, who asked him during the interview if he had any injuries. He told her about the fact his hip had popped out in a dirt bike accident. Ms. Swayze in contrast testified she first heard about the applicant’s injury during the time she was his manager.

8The applicant’s duties at first included sales, building furniture in the back room and taking items to people’s cars. The uncontroverted evidence is that the applicant’s main duty was furniture sales.

9While Ms. Swayze was his manager, the applicant began to deliver furniture. The applicant’s evidence differed from that of Mr. Singh, Ms. Swayze and Ms. Farkas with respect to how and why the applicant began doing this. The applicant testified these duties were added to his sales duties and were expected of him. Mr. Singh and his witnesses testified the applicant asked to do deliveries so he could be out of the store at times and because he thought it would be fun. Ms. Swayze in her witness statement said the applicant’s priority was sales, but his duties also consisted of putting furniture together or doing deliveries every other week. She testified she had other men who shared delivery duties, and the applicant asked to do deliveries because he preferred the time on the truck. He did not do deliveries for the first three months he was employed.

10Ms. Swayze testified when the applicant first asked to do deliveries, she asked him if he was capable because he had told her he had a prior motocross injury and because she has MS and knows that at times people are capable of doing tasks and at other times are not. The applicant assured her he was fine and that he was riding his bike back and forth to work.

11When the applicant came back from his first delivery run, he said it was great, and he was given the okay to continue doing deliveries. He worked about 50 hours a month and did deliveries two to three times a month, accounting for approximately 10 of the 50 hours a month he worked.

12The applicant testified he was fired on January 21, 2014 because he told Ms. Farkas about two weeks prior that he could not do deliveries for a month or two because of a sore back. He testified later that Ms. Farkas fired him a week after he told her his back hurt. In addition, he testified that three to four weeks prior to his firing he had one or two days when he did not do the moving and they found someone to do it instead. He further testified that in the two week period between telling Ms. Farkas about his back and his termination, he did not unload the truck or move furniture around in the store.

13In contrast, Mr. Singh testified if the applicant had told him he could not move furniture because of his back, he has others who could do those tasks, and the applicant could have done sales only. He gave the example of one of his employees who has a hernia and if he cannot do deliveries, Mr. Singh gets someone else to do them. Both Ms. Swayze and Ms. Farkas also testified if the applicant could not do deliveries, there are others who could.

14Ms. Farkas denied the applicant ever told her he injured his back. She testified he wanted to do deliveries and never complained or said anything to her about his ability to do them or his sales duties. The applicant testified he did not provide any medical documentation to Ms. Farkas or Mr. Singh and did not have any medical appointments until after he was fired.

15Mr. Singh testified the applicant’s major problem was his lack of sales, which began dwindling in October, 2013, but he ultimately was terminated for leaving the store unattended.

16Mr. Singh testified he worked in the store with the applicant many times trying to help him increase his sales. Mr. Singh testified the applicant made only one sale in December, 2013 despite this being the biggest month in retail.

17The applicant testified his sales varied depending on whether he worked a morning or an afternoon shift and were worse on the afternoon shift. He testified the only time he would sell something is if Mr. Singh told him to take $100 off an item. He testified he asked Ms. Swayze to give him the 9 a.m. to 5 p.m. shift rather than the 4 p.m. to 9 p.m. shift to prove he would get more sales on the morning shift than the afternoon shift. She testified she gave him Sunday shifts and that everyone had a fair chance of working both morning and afternoon shifts.

18The applicant denied Ms. Farkas warned him about his sales, but agreed Mr. Singh gave him warnings about his sales prior to his termination. He admitted both Ms. Farkas and Mr. Singh also sat down with him and asked him about his sales and suggested different sales methods. Ms. Farkas had spoken to him and asked him what was going on with his sales twice before he was terminated. The applicant further testified he had a meeting to talk about his performance including his sales and how to keep the store tidy.

19Ms. Farkas explained the applicant’s sales decreased because he was leaving the store during his shifts. While the applicant was her right hand when she became the manager, and she knew he could be relied on to do things, and she could trust him to sell at first, she testified his performance went downhill.

20The applicant agreed his hours of work were reduced beginning in October, 2013, but testified he was not told why. Mr. Singh testified it was because of his lack of sales. Ms. Swayze testified that there was one full-time person and three part-time people, and it was the best salespeople who were given the hours. Ms. Farkas testified she reduced the applicant’s hours because his performance declined.

21The applicant denied there was anything in writing about his sales. He admitted signing a document on December 17, 2013, that stated the following, but denied it was a warning:

Leaving the store while working leaving the store unattended for long periods of time [sic]

Giving this away that belong to the store [sic]

Pillows from sofas outside placed neatly not all over front

Sign not messy left in front [sic]

Daily Sheets

Glass table

Swatches & table clean

22The applicant testified this document was written to give him information from a meeting he missed and that Ms. Farkas wanted him to sign it so Mr. Singh would know she talked to the applicant about these things. He testified the purpose of the meeting was to tell all employees how they should do things differently. He did not see anyone else get such a document.

23Ms. Farkas testified this document was not to provide the applicant with information he missed at a staff meeting. She put this on paper because she felt she had warned the applicant enough times and needed something in writing. She had spoken to the applicant twice about leaving the store unattended before writing this up. She testified the applicant told her he would not sign it, but she told him he had to because she was writing him up because of his performance. She denied she told the applicant that the document just listed things Mr. Singh wanted done differently.

24The applicant denied the document was related to him leaving the store unattended, and testified it was just to tell him to shut the doors when he left the store so that customers did not come in. When asked why it did not refer to shutting doors the applicant stated Ms. Farkas explained more to him orally.

25Ms. Farkas further testified she had customers complain there had not been anyone at the store to help them during times when the applicant should have been there. She also had seen the applicant leave the store after she had left her shift.

26The applicant testified he left the store unattended because he was loading things into a customer’s car; helping Ms. Swayze change a light in the other store; or covering for Ms. Swayze so she could take a break. Ms. Swayze testified she only asked the applicant to assist her twice, and then Ms. Farkas requested she not ask him again, and she complied with that request.

27Mr. Singh testified Ms. Farkas told him she was having issues with the applicant’s performance and he told her to talk to the applicant. He testified in January, 2014, he received a call from her and she told him the applicant had left the store unattended again and had to be fired because she had warned him twice already. Mr. Singh advised Ms. Farkas it was her decision as the applicant’s manager.

28Ms. Farkas called the applicant into work on January 21, 2014 and fired him. The applicant testified it was odd and rude to make him pay for a taxi ride to work and then to let him go on the spot. He testified if he was being fired, it would have been nice to get notice ahead of time. Mr. Singh said the applicant was a good kid but his manager had the right to terminate him and did so because he was doing things that were detrimental to the store.

analysis and decision

29The applicant bears the onus of proving on a balance of probabilities that his rights under the Code have been infringed. On a balance of probabilities means that it is more likely than not that the applicant’s rights have been infringed. It is also well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination.

30Having carefully considered this matter I find that the applicant has not met his onus of establishing on a balance of probabilities that the respondent infringed his rights under the Code. For the reasons that follow I find that the applicant’s alleged disability was not a factor in the respondent’s decision to terminate his employment.

31The respondent denies the applicant has a disability as defined by the Code and in fact the applicant provided no medical documentation to anyone at the respondent store, and provided none to the Tribunal. However, for the purposes of this Decision and because I am dismissing the application for separate reasons, I do not find it necessary to make that determination and I have assumed, without finding, that the applicant has a disability.

32In this case I must assess the credibility of the witnesses and the credibility of the reasons provided by the employer for the applicant’s termination from employment. In order to resolve credibility issues, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (“Faryna”), which is often quoted by this Tribunal. The Court held at para. 357:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

33I also considered the factors identified by the Tribunal in Cugliari v. Telefficiency Corporation, 2006 HRTO 7 at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.

34Because the applicant’s evidence was inconsistent at times, I preferred the evidence of the respondent witnesses. While there were some variations in the evidence of the respondents’ witnesses, the variations were not critical to my determination.

35In particular, I carefully considered the applicant’s evidence that Ms. Swayze asked him about injuries when he was hired, which may in itself offend the Code, but even if the applicant’s evidence is true (which is denied by Ms. Swayze), he was hired even though he disclosed an injury and it was not Ms. Swayze who made the decision to fire the applicant as she no longer worked there at the time of termination. In addition, the respondents’ witnesses did not deny knowing at some point during the applicant’s employment that he had a prior injury.

36On the other hand, the applicant gave different versions of when he allegedly told Ms. Farkas he could not do deliveries, which included evidence that it was one week, two weeks or even three or four weeks prior to his termination. His evidence about this crucial point was inconsistent and I find his evidence to have been unreliable.

37In addition, the applicant’s evidence was at times not credible. For example, he denied any performance issues despite there being a written record of them. For these reasons, I prefer the evidence of the respondent’s witnesses. I wish to point out that I do not think that the applicant intended to mislead me. He simply never acknowledged he had performance issues, and was shocked when he was terminated because of them.

38As indicated, the respondent’s witnesses did not deny knowing the applicant had a past injury. I accept their evidence, however, that the applicant did not tell them at any time he could not do deliveries, and this was not a reason for his termination.

39The uncontroverted evidence of the respondent’s witnesses was that they had spoken to the applicant on more than one occasion about his sales. In addition, he was warned on more than one occasion not to leave the store unattended and had signed a document acknowledging this was an issue. It is worth noting that even if I accept the applicant’s evidence, he signed this document before he ever raised the issue of not being able to do deliveries. After signing it, he then left the store unattended again and in my view was terminated because of this and his difficulties with sales. While the respondent’s witnesses said the applicant was terminated for leaving the store, I accept Ms. Farkas’ evidence that the applicant’s sales performance was tied to the fact that he was doing this.

40While the applicant tried to characterize the document he signed as just an information document and a document to tell him to close doors when he left the store, I find this was a written record of performance issues that already at least in part had been discussed with him. There also is no reference in the document to his having to close doors, and it is clearly not the purpose of the document.

41The applicant also denied he was ever warned about his sales prior to his termination and yet admitted on cross-examination that Mr. Singh gave him warnings about those. The applicant also admitted that both Mr. Singh and Ms. Farkas spoke to him on more than one occasion about his sales and tried to help him increase those.

42With respect to deliveries specifically, I accept the evidence of the respondent’s witnesses that if the applicant was not able to do deliveries, they had others who were able to do those. In fact, this is consistent with the applicant’s evidence that about three or four weeks before his termination someone else did the deliveries for him.

43I find therefore, that the applicant has not established on a balance of probabilities that the applicant’s termination from employment was motivated in whole or in part by the applicant’s disability.

Order

44The Application is dismissed.