Mihindukulasuriya v. Aramark Canada Limited, 2016 HRTO 1388

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laksaman Mihindukulasuriya

Applicant

-and-

Aramark Canada Limited

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: October 26, 2016

Citation: 2016 HRTO 1388

Indexed as: Mihindukulasuriya v. Aramark Canada Limited

APPEARANCES

Laksaman Mihindukulasuriya, Applicant

Self-represented

Aramark Canada Limited, Respondent

Anne Marie Heennan, Counsel

Introduction

1The applicant, who is Sinhalese and originally from Sri Lanka, was employed by the respondent in food services on a university campus. The applicant’s original job title was “cook”. Several years later, his position was reclassified from “cook” to “pizza maker”.

2The purpose of this Decision is to decide whether the respondent reclassified the applicant’s position because of his race, place of origin, and ethnic origin, and as a reprisal for claiming his rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The Application is dismissed. I have decided that the applicant has not proven, on a balance of probabilities, that the respondent discriminated against him or subjected him to a reprisal. The following are my reasons.

BACKGROUND

4On March 28, 2014, the applicant filed an Application under s. 34 of the Code, which alleged that the respondent harassed and discriminated against him with respect to employment because of his race, place of origin, ethnic origin, and age, and subjected him to reprisals.

5On July 31, 2014, the respondent filed a Response to the Application, which denied the allegations of harassment, discrimination, and reprisal.

6On September 5, 2014, the applicant filed a Reply to the Response, which maintained that the respondent subjected him to harassment, discrimination, and reprisals.

7On December 16, 2014, the Tribunal issued a Case Assessment Direction (“CAD”), which identified deficiencies in the narrative of the applicant’s pleadings, particularly with respect to when the alleged incidents of harassment, discrimination, and reprisal occurred. The CAD directed the applicant to file a witness statement addressing when the alleged incidents of harassment, discrimination, and reprisal occurred.

8On December 17, 2014, the applicant filed a witness statement, which set out the following allegations of harassment, discrimination, and reprisal:

1. On August 15, 2007, during a job interview for a “cook” position with the respondent, Chef A.B. asked the applicant where he was from, and did not hire him because he was a Sinhalese Sri Lankan. The applicant discussed the situation with a Manager, K.M., who hired him.

2. The next day, after three hours of training in the kitchen, Chef A.B. sent the applicant home, and refused to pay him. The applicant discussed the situation with the Manager, K.M., who agreed he would be paid.

3. On the applicant’s second day of work, shortly after he started working in the kitchen, Chef A.B. told him that he would not be working in the kitchen, and told him to work at the grill station.

4. In January 2008, Chef A.B. changed the applicant’s area of work from the grill station to the deli station, and reduced his hours of work. In March or April 2008, when he was talking about his sick pay with the Manager, K.M., Chef A.B. pulled him by his cook jacket out of K.M.’s office.

5. In late 2009, the applicant applied and was accepted to work at the pizza station. Chef A.B. treated another cook at the pizza station, who was his relative or countryman, better than the applicant, and when the applicant asked for an explanation, Chef A.B. stated that the other cook was younger and stronger than him. The applicant told Chef A.B. that there are labour laws and human rights in Canada, which he had to respect, and Chef A.B. responded, what labour laws, what human rights? In February 2011, the other cook was scheduled to work instead of the applicant during the university’s reading week, even though the applicant had more seniority.

6. In September 2012, the respondent changed the applicant’s job title from “cook” to “pizza maker”, and cut his wages without notice. The applicant only discovered what the respondent had done in December 2013.

9On June 19, 2015, the Tribunal issued a CAD, which directed the parties to provide oral submissions at the outset of the hearing on whether the Application should be dismissed, in whole or in part, as outside the Tribunal’s jurisdiction because it is untimely.

10The hearing of the merits of the Application took place over two days. At the outset of the hearing, I heard the parties’ submissions on the timeliness issue, and issued an oral order dismissing allegations 1 to 5 in the Application as set out in para. 8 above. My written reasons are below.

11I then heard evidence about allegation 6. The issue to be decided is whether the respondent reclassified the applicant’s position because of his race, place of origin, and ethnic origin, and as a reprisal for claiming his rights under the Code.

12I heard the oral testimony of two witnesses: the applicant and Stephanie Schumach, who is the respondent’s Human Resources Manager. I also admitted into evidence a number of documents tendered by the parties, including the applicant’s witness statement, a job advertisement, letters of employment, job classifications and wage scales from collective agreements, training certificates, seniority lists, and emails.

PRELIMINARY ISSUE

13The time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

14The first issue to determine is whether the alleged incidents of harassment, discrimination and reprisal in the Application constitute a “series of incidents”. Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents. See, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9. In the case at hand, there was a break of more than one year between the scheduling incident in February 2011 in allegation 5, and the reclassification incident in September 2012 in allegation 6. As such, I find that the last alleged incident in September 2012 was not part of a series of incidents.

15The second issue to determine is whether allegations 1 to 5 are outside the one-year time limit in s. 34(1) of the Code. In view of the fact that the incidents in allegations 1 to 5 occurred between August 2007 and February 2011, but the Application was not filed until March 28, 2014, I find that these allegations are outside the one-year time limit in s. 34(1) of the Code.

16The third issue to determine is whether the applicant’s delay in filing his Application with respect to allegations 1 to 5 was incurred in good faith.

17In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

18In his submissions, the applicant stated that it was the incident in allegation 6 which triggered him to file his Application. This is not a reasonable explanation for the delay in filing his Application with respect to allegations 1 to 5. The fact of the matter is that he could have filed his Application with respect to these allegations in a timely manner, but did not do so. Therefore, I find that the applicant’s delay in filing his Application with respect to these allegations was not incurred in good faith. In view of the fact that the applicant’s delay was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

19Accordingly, allegations 1 to 5 in the Application are dismissed.

20I allowed allegation 6 in the Application to proceed to the merits hearing because although the reclassification incident in allegation 6 occurred in September 2012, and the Application was not filed until March 28, 2014, the applicant alleged that he suffered an ongoing wage cut up to the present day as a result of this incident. The Tribunal has found that ongoing wage differential between employees, which is alleged to be discriminatory, constitutes an ongoing series of incidents within the meaning of s. 34(1) of the Code. See Garrie v. Janus Joan Inc., 2012 HRTO 1955.

EVIDENCE

21In September 2007, the respondent, which provides food services to organizations, hired the applicant for a position on a university campus. His original job title was “cook”. The workplace is unionized, and he was a member of the union. He was trained in the kitchen, and then started working at a grill station, which involved grilling hamburgers, sausages, and other meat. In 2008, he was transferred to a deli station, which involved making sandwiches. In 2009, he was transferred to a pizza station, which involved making pizzas.

22The applicant testified that in December 2013, he looked at the seniority list for employees on the union bulletin board, and discovered that his position had been reclassified from “cook” to “pizza maker”. He stated that when he went home and checked his pay cheques, he noticed that the respondent had started paying him lower wages beginning on September 20, 2012.

23In her testimony, Stephanie Schumach, who is the respondent’s Human Resources Manager, agreed that the respondent had reclassified the applicant’s position. She stated that in the summer of 2011, she had asked J.C, who is a Manager, to review the job duties of each employee, and to reclassify them if their job duties did not match their position. The respondent tendered, and the Tribunal admitted, into evidence seniority lists from February and September 2011, which showed that the respondent reclassified the positions of four employees, including the applicant, from “cook” to “cook helper”, “salad maker”, or “pizza maker”.

24Ms. Schumach testified that the respondent and the union posted the revised seniority list in the workplace, but that neither one of them provided individual notice of the reclassification to the affected employees, which was an error. She stated that the applicant continued to receive the pay rate for the “cook” position, but did not receive any increases in pay for that position. Rather, she stated, in 2013, the respondent and the union ratified a new collective agreement, which was applied retroactively to September 5, 2012. She stated that effective September 5, 2012, the applicant received increases in pay for the “pizza maker” position.

25In cross-examination, the applicant agreed that the respondent had also reclassified the positions of three other employees from “cook” to a lower-paid position, and none of those other employees was Sinhalese or originally from Sri Lanka. He stated that one of the employees quit his job because he was so upset by the respondent’s reclassification of his position. He also stated that the respondent’s decision to reclassify their positions was a “business trick”. When asked whether the respondent’s decision was because of the Code grounds listed in his Application, he responded: “I don’t know.”

ANALYSIS

26The Application relates to sections 5, 8 and 9 of the Code, which provide:

5.(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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

8. 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.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

27The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.

Did the respondent reclassify the applicant’s position because of his race, place of origin, and ethnic origin, and as a reprisal for claiming his rights under the Code?

28The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The applicant must establish discrimination on the basis of one of the grounds alleged in the Code, or reprisal as defined in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

29In order to establish a case of discrimination, the applicant must prove that (1) he is a member of a group protected by the Code; (2) he was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.) at para. 47, upheld 2012 ONCA 155.

30In order to establish a case of reprisal, the applicant must prove the following elements:

1. An action taken against, or threat made to, the applicant;

2. The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

3. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

See Noble v. York University, 2010 HRTO 878 at para. 33.

31In my view, there is insufficient evidence to establish that the respondent reclassified the applicant’s position because of his race, place of origin, and ethnic origin, and as a reprisal for claiming his rights under the Code.

32In his Application and during his testimony, the applicant did refer to the manner in which the Chef, A.B., treated him, including asking him where he was from and whether he was Tamil during his job interview, and blocking him from being hired, as well as responding negatively to the applicant’s statement to him that there are labour laws and human rights in Canada, which he had to respect. However, during the course of presenting his case at the hearing, he did not indicate that there was a link between these incidents, and the respondent’s decision to reclassify his position. In fact, there was no evidence before me that A.B. decided to reclassify his position. I accept Ms. Schumach’s testimony, which the applicant did not dispute, that she had asked a Manager, J.C., to reclassify the positions of employees if their job duties did not match their positions.

33Furthermore, in cross-examination, the applicant admitted that three other employees, none of whom were Sinhalese or originally from Sri Lanka, also had their positions reclassified at the same time as his was, and that he did not know whether the respondent’s decision to reclassify his position was because of the Code grounds listed in his Application.

34Finally, the applicant testified that the respondent’s decision to reclassify the positions of him and his three co-workers was a “business trick”. In his closing submissions, he also argued that the respondent was trying to save money by cheating him and his three co-workers. He stated that the respondent stole his money to save its own money. This has nothing to do with his race, place of origin, and ethnic origin, or claiming his rights under the Code.

35What the applicant is alleging is that the respondent’s decision to reclassify his position was unfair because the respondent was trying to save money at his expense. However, this Tribunal does not have the jurisdiction to deal with or remedy general allegations of unfairness.

ORDER

36The Application is dismissed.