Galoglu v. A Wesley Paving Ltd., 2016 HRTO 1525

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenan Galoglu

Applicant

-and-

A Wesley Paving Ltd.

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: November 28, 2016

Citation: 2016 HRTO 1525

Indexed as: Galoglu v. A Wesley Paving Ltd.

APPEARANCES

Kenan Galoglu, Applicant

Moira Wallace, Counsel

A Wesley Paving Ltd., Respondent

Chantel Goldsmith, Counsel

INTRODUCTION

1On September 2, 2014, Kenan Galoglu (“the applicant”) filed this Application against A Wesley Paving Ltd. (“the respondent”). The applicant alleges that he experienced discrimination in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). He alleges that his employment was terminated because he sustained a work-related injury and because of his ethnic origin, which he identifies as Turkish.

2The respondent denies that it discriminated against the applicant and asserts that the applicant was laid off due to a shortage of work.

3The respondent operates a paving company. The applicant was an employee of the respondent. The applicant was first hired in fall 2013 when he worked for a short period of time. He was hired again in spring 2014 as a seasonal worker to work on the gravel crew.

4The applicant sustained a work-related injury on July 4, 2014. He was laid off on the same day. He applied for benefits through the Workplace Safety and Insurance Board (“WSIB”). A WSIB Claims Manager determined that the applicant was not entitled to loss of earnings benefits on the grounds that the layoff from employment was due to “an employment situation”.

5The respondent made a request that the Application be dismissed under section 45.1 of the Code on the grounds that a decision of the WSIB has appropriately dealt with the substance of the Application.

6The Tribunal denied the respondent’s request and the Application proceeded to a merits hearing.

SUMMARY OF THE EVIDENCE

7The Tribunal heard evidence from the applicant and his witness who had worked at the respondent. There was also evidence given by three respondent’s witnesses.

8The applicant provided his evidence through a language interpreter.

KENAN GALOGLU

9Kenan Galoglu, (“the applicant”), testified that he first worked for the respondent in the fall of 2013. He worked until late December that year.

10He testified that he was invited to join the respondent’s crew by Bunyamin Basgelen (“Basgelen”) who he calls Beni. Basgelen had indicated to him that the respondent needed employees. He needed work so he so he talked to Basgelen and he started in the fall of 2013. He stated that he was not interviewed by anyone with the respondent and he was unaware who actually accepted him into the respondent’s workforce.

11He testified that he was hired back on or about May 1, 2014. He stated that those who were going to start work at the respondent that spring met on March 25, 2014 and were given a briefing on the Employee Safety Policy & Employee Requirements. Documents were introduced into evidence on which the applicant had acknowledged that he had received, read, and understood the Employee Safety Policy & Employee Requirements and the Health and Safety Policy.

12The applicant testified that his spoken English is not very strong. He stated that with use of body language somehow he makes himself understood. He can understand some of what he reads in English but not all.

13The applicant testified that the health and safety training was conducted by Basgelen; and another supervisor and a project manager. The training was conducted in English. When asked if anyone had translated during the meeting, the applicant replied that Basgelen could not possibly have translated all that was covered in the meeting. Basgelen had generally explained, in Turkish, that parts that Basgelen considered to be important and relevant to the applicant’s work.

14Based on the work he had done the fall before, he had expected to work until the end of December 2014, depending on weather. As well, Basgelen had stated that they would work until late December, 2014 if there were no disagreements and if his work was satisfactory. He had been earning $24 per hour and the hours he worked each varied between 45-55 hours per week.

15The applicant testified that he had not had any disagreements with the bosses and no one had complained about his work.

16The applicant testified that just before he was terminated, Robert Zaffino, one of the bosses, approached him and told him that Basgelen was leaving the respondent’s employment. He stated that he was asked if he still wanted to continue working there.

17The applicant testified that in response he asked Robert Zaffino, “Is this Beni’s workplace or yours? Does Beni give me cheque or you? Who do I work for?” The applicant testified that when Robert Zaffino replied “I do.” and “You work for me”, he said, “Whether Beni is here or not is not a problem. I can work.”

18The applicant stated that he and Beni had spoken Turkish and the fact that his English is not strong might have caused him some difficulty but really it did not matter. It was work.

19When the applicant was asked why he thought he had been asked if he still wanted to work after Beni left, he responded that there may be many reasons such as whether he could pass information to him because they are both Turkish; or maybe because Beni brought him on to the job and they still spoke. He stated that in his opinion, he was likely fired because the respondent thought he might take information to Beni or cause problems for them after Beni was gone.

20He testified that on Monday or Tuesday of his last week of work with the respondent, he had a new supervisor and he was again asked if he wanted to continue working since Basgelen was gone. He stated that he again replied that he did not work for Basgelen. He was working for the respondent and it was not a problem for him to continue working.

21He testified that the on morning of July 4 2014, they were loading a manhole lids and sewage covers into a cube van. A front loader with a bucket put these lids and covers inside the cube van but the machine could not put them fully inside. Workers had to set the lids down inside the van in order for it to be completely safe. He was inside the van. At one point, he was trying to level a lid when it slipped and his middle finger on the left hand got stuck under the cover. As a result, his finger got cut and broken. He had been wearing gloves. He testified that he did not know it was broken at that time. He just thought it was cut.

22He stated that the supervisor, project manager, the operator loading the cube van were all present when he injured his finger. He stated that they saw it was bleeding and someone brought band aids.

23He testified that although his finger was hurting a great deal during the day, he did not seek medical attention until the evening of July 4, 2014. No one he was working with on that day or anyone one else who worked for the respondent told him to go seek medical attention for his finger. He testified that towards noon that day he asked a supervisor if he had anything to stop the pain and later he asked the truck driver who brought gravel if he had any pain killers and they both told him that they did not have any.

24He testified that he told the supervisor that he had severe pain in the finger. The supervisor responded that he was very busy working on a machine and he could not deal with it.

25When the applicant was asked why he had waited until the evening to seek medical attention, he stated that there had not been many people working with him on July 4, 2014 and there was work that needed to be done so he thought that in order not to stop the work, he should not stop. He thought he could manage.

26The applicant testified that he had not fully learned what happens if an employee is injured on the job when he had taken the health and safety training. He stated that he did not know much about the policies until he went to a doctor and the doctor asked why they had not called an ambulance when he was injured. He stated that the doctor also asked him that since it was a workplace accident why he was not sent to a doctor earlier. He testified that if he had known, he would have gone after the accident or asked someone to call an ambulance.

27The applicant testified that they had been busy on his crew the week of his accident and as far as he knew at the time, he would be working the following week. He stated that he did not exactly remember how many hours he had worked that week but it was busy and he had worked long hours which he thought had been from about 7 am to 8 pm each day that week. The payroll statements that had been included in the respondent’s document brief showed that the pay dated July 4, 2014 was the third highest in the period from May to July 7, 2014.

28The applicant testified that after the accident, they bandaged up his finger and he and the other crew members got in the cube van and went to the site where they were to work for the day. When they reached the worksite, the supervisor did not let him do his regular work that would have required him to use his hands. When the truck came he showed them where to dump the gravel. After the morning, he was sent to drive the cube van to pick up pipe. He stated that he had pain in his middle finger on his left hand but he was able to hold the steering wheel with his other fingers on the left hand and keep his middle finger raised straight. A machine loaded the pipes into the van and he did not have to lift anything or do anything other than drive the vehicle.

29He stated that for the remainder of the day, the excavator and bobcat were working and when there were small gravels he shoveled them off a little bit but others did most of the work. He did not do his regular job of raking. He stated that those on the gravel crew can do each other’s jobs. He stated that he is not a professional but he could drive the bobcat. He cannot operate an excavator.

30The applicant testified that at the end of the work on July 4, 2014, he was going back to the workplace with the truck when his supervisor told him not to come to work the following Monday. He stated that when he asked why, the supervisor told him that he did not know why and that he should talk to the bosses. When they arrived at the workplace, there was no one else on site. He stated that he did not have a phone number for the project manager or for Bruno Zaffino. He only had the number for Bruno Zaffino’s son so he called him but there was no answer.

31He testified that he had unbearable pain in his finger and so he felt that medical intervention was necessary and went to the hospital in the evening of July 4, 2014. When he was at the hospital, he found out that his finger was broken. He was given the WSIB Health Professional’s Report that a doctor completed. He told the doctor that he had been fired. The doctor asked him why and he told the doctor that he did not know. The doctor told him to bring the Health Professional’s Report to the workplace on the following Monday.

32He testified that he went to the respondent’s workplace on Monday, July 7, 2014 with a friend who spoke English. He went to the office and gave the person, who he thought was the secretary, the Health Professional’s Report dated July 4, 2014. He told the secretary that he would like to know why he was fired. He stated that the secretary told him that she cannot give him that information in person and that he could find out from workers’ compensation. He was told that he would be mailed his last paycheque with deductions. He stated that he thought he saw Bruno Zaffino and another boss in the office but they did not speak to him. No one asked what happened or about his health.

33Before July 4, 2014 he had not been any verbal or written warning that he would be laid-off.

34He stated that he went to his family doctor to have his finger examined further. His family doctor referred him to a specialist to deal with the broken bones. He was also referred to various other specialists.

35He testified that it took three months for his finger to heal to the point where he could start moving the finger but that he had pain in arm as well. He stated that there was also damage to tendons of the left hand and the treatment for his hand lasted over one year.

36He stated that when he applied for Employment Insurance benefits he was advised that the respondent had told that office that he had been terminated because they did not need as many workers.

37When he was asked if anyone else was fired on Friday, July 4, 2014, he stated that he did not know of any other person from his work section who had been fired at that time. He stated that he did not try to find out if others were fired. He did not have the phone numbers of most others at work so he did not keep in contact with anyone.

38The applicant testified that after this incident of injuring his finger and being fired, he experienced problems with his mental health. He became nervous and tense and this caused problems with his family. He received psychological help and medication.

39At the time of the hearing, he has not been employed since July 4, 2014. At the hearing he had recently injured his leg. He stated that prior to that he had been well enough to work since about February 2016.

40He had received Employment Insurance for three months but after that his income was Ontario Works benefits. He had not received WSIB loss of earnings benefits because the WSIB found that he had been laid off due to shortage of work and not due to a compensable injury. He stated that he had appealed the WSIB decision but did not have a decision on the appeal.

Bunyamin Basgelen

41Basgelen had been employed full-time as a foreman for the respondent. He knew the applicant as they had lived in the same neighbourhood in their country of origin. He stated that when he was told that the respondent needed more crew he brought the applicant to the job to work for the respondent. He stated that because he was the foreman, he made the decision to hire the applicant back for the next season in spring 2014. He stated that the applicant was hired as a seasonal worker. The season was from May 1 to about mid- December but length depended on the weather and when snow arrived.

42He stated that the applicant reported to him and he reported to Robert and Bruno Zaffino, the owners of the respondent business. He stated that he controlled the worksites and Robert and Bruno Zaffino did not attend worksites very often.

43He stated the respondent had hired people who had various levels of facility with English and who had various backgrounds. He knew of another person who spoke Turkish who had worked for the respondent but not on the gravel crew.

44He testified that he gave the contracts and the health and safety policies to the applicant. They were written in English and he had explained the parts that he thought related to his work. He spoke to the applicant in Turkish. He stated that rules and policies can be explained but a lot about safety is common sense. He testified that the applicant had used common sense and he would not have hired him if he did not understand and had required too much explaining because as a foreman, he has to avoid problems for himself. He stated that everyone had to sign the acknowledgement that they had read the health and safety policy because if they did not sign, they could not work at the respondent. If the applicant had not signed, he would have been told to go home. He stated there were about 20 people at the training and they all signed and none of them read it. The whole training lasted a half hour and he did not believe anyone could have read and understood the whole policy in that time. They just signed the acknowledgement.

45He stated that he had been let go from the respondent’s employment just before the long weekend in July 2014 so he was not working at the time of the applicant’s injury at work.

46He testified that he had never had any problems with the applicant’s work. The applicant had done good work and a couple of times it was just the two of them who completed large jobs. As the foreman, he was the one who would address any problems he had seen or been told of any problems with the applicant’s work.

Bruno Zaffino

47Bruno Zaffino testified that he had been a part owner of the respondent company from 1989-92. His brother Robert Zaffino was the owner at the material times. Bruno Zapfino testified that he was involved in the health and safety procedures for the respondent; he took care of the equipment and some of the hiring. He described himself as a manager and stated that he was involved in much of the decision-making for the respondent up until he retired in October 2015.

48He stated that when this Application had been brought to his attention he had been quite surprised. He stated that that when he and his brother made decisions for the respondent company, they did not consider a person’s ethnicity or any other characteristic. As long as a person wanted to work and showed up, they could work. He stated that the respondent company did not tolerate any type of discrimination and highlighted a section of the respondent’s Workplace Harassment/Violence Policy which stated that the respondent is committed to provide a workplace that is free from violence, harassment, bullying and discrimination and fosters an environment of mutual respect.

49In cross examination, he was asked about the respondent’s Health and Safety policy. He stated that it is provided in English and if the employee does not understand English, they are asked to take it home. He stated that they just need to understand a few words to understand the policy. He stated that if the employee does not understand, the respondent calls the employee’s family and asks them to do the explaining to the employee. He stated that in the applicant’s situation, Beni would have explained it. He stated that he would know if employees understand it if they understand what he is saying to them when he speaks English to them. He stated that he had looked at the policy a few times and that he remembered seeing it but he did not recall many specific details.

50He had not been involved in hiring the applicant as that had been Beni’s job. He may have spoken to the applicant once on a job site. He stated that the applicant would have known that the work was seasonal but admitted on cross-examination that he had not been present in a room to hear this explained to the applicant. He stated that seasonal means three months.

51He stated that the Application was the first time that he was aware of any allegations of discrimination against the respondent.

52This witness was shown a copy of the applicant’s Record of Employment (ROE) which states that the reason for issuing the ROE was of shortage of work. He stated that the respondent would usually base decisions on who was going to be terminated on seniority. Later in his cross-examination, he stated that it was not necessarily seniority as it is also depends on the jobs being done. He stated that others had been laid off in addition to the applicant. In response to my questions, he stated that he was not sure who had been laid off and he would be guessing if he said what their jobs had been.

53He initially stated that the applicant was one of the last to be hired but later in his cross-examination, he stated that he was not sure who was hired last or who had been hired at the same time as the applicant.

54He testified that in May, 2014, he and his brother had seen that there were no new contracts but they held off from telling any employees about lay-off to see if new contracts came in. He testified that the usual process for layoffs due to shortage of work was he or Robert Zaffino would tell a foreman that there is a shortage of work and the foreman would have to release one of the employees. He stated that usually from five days to three days before the last day of work for the employee, the foreman is to tell the employee that they are going to be let go at the end of the week. He stated that a general rule, respondent company would try to let the employee who is being laid-off finish the work for the week to get full pay cheque.

55He testified that it was up to the foreman to tell the employee who was going to be let go. He agreed that he was not present to know if the applicant had been informed prior to the end of day on July 4, 2014 that he was going to be let go.

56He testified that the respondent’s paving season usually runs from late April to August or October or even mid-November but it depends on the year as the whole season could be slow if they do not go out and get contracts. He stated that in 2014 it was slow and they did not have enough work to justify keeping on the whole staff. He did not provide any documentary evidence to support this claim. When asked how it could be established that July 2014 was slow, he stated that it is common knowledge that it varies from company to company and it depends on how much work each company is getting. He provided no further details or evidence to demonstrate that the work had slowed down that season.

57He stated that the respondent’s policy on accidents is that the foreman is to assess if it is serious enough call 911. If the employee who is injured is coherent, they are asked how they feel and whether they want to go to the doctor. If there appear to be broken bones, the foreman is to call a paramedic or ambulance.

58When he was asked to review the respondent’s Health and Safety Policy, he agreed that if there is an accident, the policy dictates that the supervisor is to inform management promptly. He agreed that he was management. When he was asked if the foreman had informed management, he said he did not know.

59He initially stated that he only became aware of the applicant’s injury when this Application was received. Later, in cross-examination and in response to my questions, he stated that a day or two after the applicant’s accident he had a phone conversation with the applicant’s foreman. This foreman told him that the applicant’s finger was pinched and when asked, the applicant had said he was fine. He also stated that he knew the applicant had refused medical help because on the day of the accident, he spoke to Phil Keuremennen (“Keuremennen”), who was a machine operator at the site where the applicant had been working on July 4, 2014. He testified that Keuremennen had told him that the applicant had said he did not need medical treatment.

60An accident investigation report, completed by the applicant’s foreman was included in the respondent’s document brief. On this report it is written “I asked him repeatedly throughout the day if he was ok and he always responded yes that he was fine so I found no reason to believe he needed more serious medical attention and allowed him to keep working.” On this same report under “Nature of Injury” it is written, “cut finger, possibly broken” and under “what caused injury?” it is written, “…dropped on his finger” (right). The applicant’s foreman was not called as a witness.

61This witness stated that he believed that the accident was reported to the office and the office would have submitted what was needed to WSIB. He stated that the finger needed no more than a band aid, so it was nothing serious.

62The witness was shown a documentation memo from the WSIB Eligibility Adjudicator that indicated that he had called the respondent on August 1, 2014 and advised the respondent that they had not completed the required reporting forms. In response, he stated that the forms had been filed.

63When the witness was asked if anyone from the respondent had followed up with the applicant to ask about the injury he responded, “No he had filed a laws suit so we were not going to talk to him.” When it was pointed out to him that the Application had been filed on September 2, 2014 and the accident was July 4, 2014, he responded, “He was laid off that is it.”

Philipe Keuremennen

64Philipe Keuremennen testified that he worked at the respondent on the gravel crew. On July 4, 2014 he was working with the applicant. He was operating the bobcat when the applicant’s finger was injured loading catch basins into the cube van. He stated that they were moving a catch basin with a cover and the applicant slid it and caught his finger between concrete and the basin.

65He testified that the applicant was laid off because of a shortage of work. He testified that they had only been working 35 hours a week which, as far as he was concerned, was a lack of work. He stated that he had spoken to others who were also laid off within a couple of days of when the applicant was laid off. When he was asked how he knew this he stated that everyone talks about how much work they have. He stated the he “had a feeling it was lack of work” but agreed that he did not know absolutely as it was “not my business”.

66He stated that on the date of the accident he completed the accident reporting forms that he got from the foreman. He had reviewed the accident investigation report completed by the foreman, and which included his own statement. He stated that it was absolutely accurate. When it was pointed out to him that the applicant had broken his left not his right finger as indicated in the report, he agreed that he had seen the applicant’s injured finger but still stated that the report was accurate. He stated that he had not been asked anything more about the accident between the date of the accident and the date of this hearing.

67He testified that he told the applicant they would take him to the hospital if he wanted to go. He said that he did not tell the applicant that he would not lose time from work because he thought that was a given and that everyone would know that.

68In response to my questions, he stated that there are about 8 – 12 guys on the asphalt crew. If there is a need to hire extra labourers, they will be hired as it is all dependent on amount of work. He stated that at times he would go between the gravel and the asphalt crews.

69He testified that after accident it was a normal, relatively good, busy day. They did a lot of work that day. He stated that the applicant changed catch basin lids with assistance of bob cat; did raking; and directed trucks. He stated, “It was a normal day through and through.”

70He testified that he continued to work through to the end of November or early December 2014 and that his pay, which is based on hours, was roughly the same in 2012, 2013 and 2014.

Beverley Novak

71Beverley Novak testified that she had worked at the respondent for 7 years as the office manager and bookkeeper. She left in May 2015. Her duties in this job were accounting; paperwork for hiring and termination; payroll and time cards; preparing all Records of Employment (ROE); and general office duties.

72She testified that on Monday July 7, 2014 she was in the office when the applicant came in with an interpreter. He handed her a note from a doctor and she put this note in her assistant’s file.

73She stated that once a month she and Robert Zaffino would go over the jobs pending. She also did costing and planning for new jobs and that they could get calls for new jobs at the last minute.

74She stated that about 2 weeks prior to the applicant’s layoff, she and Robert Zaffino discussed the decision that there would be layoffs but she was not told which employee would be laid-off On Monday July 7, 2014, she gave the applicant his ROE. She did not have the timecards for the week ending on July 4, 2014 but she completed the ROE on July 7, 2014 after she spoke to the foreman. The ROE included in the respondent’s documents is dated July 7, 2014.

75In cross-examination, she stated she did not know who was laid-off during the week ending on July 4, 2014 until the applicant came to the office and told her he needed a ROE. She agreed that the normal process for lay-offs was that a foreman would have been told if someone needed to be laid-off from his team. She stated than an employee could be called back if the respondent got busy again. She testified that a couple of people on the paving crew were laid off that summer. She stated that in 2014, her assistant did the paper work for the hiring and the entire payroll. That assistant was not called as a witness.

76When she was asked who was responsible for reports to WSIB, she responded that the respondent never had any accidents to report. She stated that she knows this because the respondent always got a refund from WSIB and they always had a good rapport with WSIB. She believes she got involved with the applicant’s WSIB claim when the respondent got a warning letter from WSIB that they had not filed the necessary Form 7, Employer Report of Accident or Injury forms. In cross-examination, she stated that she did not know the WSIB process until her assistant brought forms to her that they had to fill out.

77She testified that her assistant would have completed the Form 7. She did not know if her assistant had spoken to the foreman or Keuremennen prior to completing the Form 7. She did not recall if she or Robert Zaffino signed the Form 7.

ANALYSIS

78The Code provision that is relevant to this Application is section 5 which states:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of … ethnic origin … or disability.

Applicant’s Evidentiary Burden

79The success of this Application rests on whether the applicant has proven, on a balance of probabilities, that he experienced discrimination when he was terminated by the respondent on July 4, 2014.

80In this Application, where the conclusions must be drawn from circumstantial evidence, the Tribunal must determine if it can be inferred from the evidence that it is more probable than not that his disability or ethnic origin was a factor in the respondent’s decision to terminate his employment. See: Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109 and Shaw v. Phipps, 2010 ONSC 3884 at para. 77 upheld 2012 ONCA 155.

81If on a balance of the proven facts, the applicant proves the discrimination, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur: Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 (“Moore”) at para. 33.

Credibility Considerations

82As was stated in Shah v. George Brown College, 2009 HRTO 920 (“Shaw”) at para 12:

An assessment of credibility is not an exercise whereby the adjudicator simply listens to the oral testimony of witnesses, observes their demeanour while testifying, and decides who appears to be telling the truth. Assessing credibility involves the consideration of a variety of factors.

83In assessing credibility of the witnesses, I have applied the well-established and often cited principles stated in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 as stated in at pages 356-357:

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 carries 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 as reasonable in that place and in those conditions.

84I further considered any corroborative evidence of the witnesses; the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties; the state of the witness, such as candour or evasiveness; and the failure to call a witness who has material and direct knowledge of the disputed facts. (Shaw at para. 14 and Briggs v. Durham Regional Police Services, 2015 HRTO 171 at para. 150)

Discrimination on the basis of Ethnic Origin

85The applicant alleges that the fact he is Turkish was a factor in the decision to terminate him.

86I find that there is insufficient evidence to conclude that the applicant’s ethnic origin was a factor in his termination. I accept his evidence that he was twice asked if he wanted to remain working at the respondent after Basgelen, whom he knew from Turkey, had left the respondent’s employment. However, the applicant has not provided any evidence to demonstrate that the fact that he and Beni were both Turkish was a factor in his termination. The applicant stated that he believes the respondent may have terminated him after Basgelen left because they may have thought that he could provide Beni with information or cause trouble for them. It does not seem reasonable that the respondent would have allowed him to stay after Beni left if they had these concerns. The applicant has provided no evidence to support his belief.

Discrimination on the basis of Disability

87The applicant alleges that he was terminated because he had injured his finger on July 4, 2014.

88The respondent alleges that the injury had nothing to do with the termination and that the termination was based solely on a shortage of work.

89As is explained more fully below, I find that the respondent’s witnesses were not credible and I do not accept that shortage of work was the reason for the applicant’s termination.

90I find that the propensity of the evidence demonstrates that the applicant’s disability was a factor in his termination. The respondent breached his right to be treated equally with respect to his employment on the basis of his disability in violation of the Code.

Did the applicant have a disability, as defined by the Code?

91The Code defines disability in section 10:

In Part I and in this Part …“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device….

92The applicant’s evidence and the medical documents that were included in the applicant’s documents demonstrate that on July 4, 2014 he had a crushing injury to his left third finger. This resulted in a fracture and laceration of this finger. This is not in dispute.

93In the light of this evidence, I find that the applicant had a “degree of physical disability … that is caused by bodily injury,” and therefore had a disability as defined by the Code at the relevant time.

94The respondent focused a great deal on the training, health and safety policy and whether or not the applicant had been wearing gloves when the accident occurred. The inference appeared to be that the applicant was somehow blameworthy for the accident. The cause of the disability and whether or not the applicant is somehow to blame for its occurrence is not relevant to a finding of whether the applicant had a disability at the relevant time for this Application.

Was the respondent aware of the applicant’s disability?

95Bruno Zaffino stated in direct examination that he only became aware of the applicant’s injury when this Application was received. I do not find this credible. In response to my questions, Bruno Zaffino stated that a day or two after the applicant’s accident he had a phone conversation with the applicant’s foreman who gave him his opinion about the extent of the applicant’s injuries and his explanation as to why the applicant did not attend the hospital after the accident. He also stated that on the day of the accident he spoke to Phil Keuremennen and he had told him that the applicant had hurt his finger but had said he was fine.

96The foreman and Phil Keuremennen both completed the Accident Investigation Reports on July 4, 2014. The foreman was not called to give evidence; however, it is clear that the applicant’s foreman was aware of the accident.

97In addition, the applicant gave evidence, which was confirmed by Ms. Novak’s evidence that he provided the respondent with a copy of the Health Professional’s Report on July 7, 2014. Ms. Novak stated that this report was given to her assistant.

98Ms. Novak gave evidence that the Form 7 was prepared by her assistant. She stated that she was not certain if it was Robert Zaffino or her who had signed the Form 7. This Form 7 was not included in the respondent’s book of documents and the office assistant, and Robert Zaffino were not called to give evidence. However, the documentation memo prepared by WSIB states that WSIB received the Form 7 on August 6, 2014 and that the date that the employer found out that the worker had sought medical attention was July 4, 2014.

99It is clear from the evidence that Bruno Zaffino, a manager at the respondent, was aware that the applicant had been injured on July 4, 2014. He stated that Keuremennen had told him about the accident when he spoke to him on the day of the accident. The respondent’s Health and Safety Policy states that supervisors will report accidents promptly to management. The applicant’s foreman was clearly aware of the applicant’s injury. The foreman completed the accident reporting form. It is not clear who advised the foreman that the applicant was to be laid-off at the end of day on July 4, 2016 or at what point in the day he was given this instruction. The foreman was not called to give evidence. The respondent has provided no evidence to demonstrate that the foreman did not advise any manager that the accident had occurred and I find that on a balance of probabilities, the accident was reported to management on July 4, 2014.

Was disability a reason for either of the terminations?

100The respondent submits that the applicant’s disability was not a factor in the termination. They submit that a decision had been made to terminate the applicant prior to the day when he injured his finger. I do not find the evidence of the respondent’s witnesses to support this allegation to be credible.

Termination for Shortage of Work

101Bruno Zaffino claimed that there was a shortage of work and so it was decided that some employees would need to be let go. He stated that if it was decided that employees needed to be let go for shortage of work, the foreman of the employee would be told that an employee on his crew would have to be let go. A few days before the employee’s last day of work, the foreman is to give the employee notice that he is going to be let go at the end of the week. Although he described the general approach to terminating employees when there was a shortage of work, his testimony with respect to the applicant’s termination was extremely vague. He testified only generally that “in 2014 it was slow” and did not provide any specific evidence about either who made the decision to tell the foreman to terminate one or more employees in July 2014 or even that it was slow in July 2014 specifically. He testified only to the effect that it was ‘general knowledge’ when it was slow.

102The respondent also provided no evidence to support the allegation that the general approach had been followed in the applicant’s situation. Bruno Zaffino did not testify about who advised the foreman to terminate someone and could not provide evidence about when and how the applicant specifically was terminated because he said he had not been present to hear the foreman advise the applicant. The foreman was not called to provide any evidence either about who advised him to terminate one or more employees in July 2014 or how he identified the applicant as the individual to terminate.

103The applicant gave credible testimony that he had not been informed of the impending layoff.

104Beverly Novak testified that two weeks prior to the applicant’s termination, she had been told that there would be layoffs but she was not told which employees were to be laid off. She stated that when the applicant came to the office on Monday July 7, 2014, she had not completed the applicant’s ROE and that she did not know who had been laid-off until the applicant came to office and told her he needed a ROE.

105Both Ms. Novak and Bruno Zaffino testified that it would have been the applicant’s foreman who would decide if he was the one to be let go and the foreman would notify the office about needing the ROE. According to Ms. Novak’s evidence, the applicant’s foreman had not advised her that an ROE was needed for the applicant. The amounts listed as paid in each pay period on the applicant’s ROE do not match up with his payroll transactions. The ROE indicates that the applicant had nine pay periods in 2014 whereas his payroll transactions show that he had eleven.

106Ms. Novak testified Robert Zaffino was the person in management who had indicated that employees would need to be terminated for shortage of work. The foreman and Robert Zaffino are the persons who would have had first-hand knowledge of whether a decision had been made to terminate the applicant. They were not called to give evidence.

107The respondent’s witnesses all gave evidence that the respondent’s paving season usually runs from late April or early May to late November or December. The respondent claims that business was slow at the beginning of July; however, they did not provide any documentary evidence to support this claim. The applicant’s payroll transactions show that his pay was not lower in the weeks prior to his termination and that he appeared to be working over 55 hours each week. As well, Mr. Keuremennen testified that he had worked through to the end of November in 2014 and that his 2014 income had been similar to that he which he had earned in 2013.

108I draw an adverse inference against the respondent regarding the failure to call either the foreman or Robert Zaffino as witnesses and the failure to present documentary proof of the lack of work contracts in summer 2014. I find that the respondent’s claim that the applicant was laid off because of shortage of work in not supported by the evidence. The respondent provided no evidence upon which I could base a finding that the decision to lay-off the applicant had been made and communicated prior to the time when he was injured. Because they did not call the foreman to give evidence, there is no evidence to rebut the presumption the foreman called management to advise that the applicant had been injured and that when he did that, he was instructed to tell the applicant that he was being laid-off at the end of that day. Bruno Zaffino testified that in the unusual course if an employee was going to be laid-off, the foreman would be advised and the foreman was to tell the employee a few days in advance of the lay-off effective date and that the employee would be allowed to work to the effective lay-off date. The applicant testified that he was not advised that he was going to be laid-off until the end of the day on July 4, 2014 and that when he asked the foreman the reason for the lay-off, the foreman told him he did not know why and that he should talk to the bosses.

109It is well-established in human rights law that that in order for the Tribunal to determine that the applicant’s Code protected rights have been breached it need only to find that his disability was one factor in the decision to terminate the applicant; it does not have to be the only or primary reason: Janzen v. Platy Enterprises Ltd, 1989, 97 (SCC), 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 1989; CanLII 97 (SCC).

110I find that the evidence demonstrates that, on a balance of probabilities, the applicant’s disability was a factor in the decision to terminate him.

111The propensity of evidence demonstrates that the respondent terminated the applicant because he had injured his finger and not due to shortage of work as they claimed.

112Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. See Moore above, paragraph 33.

113The respondent presented no evidence and provided no submissions to justify the discriminatory conduct.

REMEDY

114Having found violations of section 5 of the Code, it is appropriate to consider remedy.

115Section 45.2(1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

General Damages

116The Applicant requests $10,000 in general damages.

117The applicant testified that after this incident of injuring his finger and being fired, he experienced problems with his mental health. He became nervous and tense and this caused problems with his family. He and his wife separated for a few months. He received psychological help and medication.

118The Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), at paragraph 153, held that the following are among the factors that the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment. The Court also recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee”.

119In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at para. 52-54, summarized the principles on which damages under section 45.2(1) 1 are awarded:

The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

120Although the applicant did not provide any medical documentation to support the extent of the impact of the firing after the workplace injury on his mental health, I accept on the basis of his own evidence that the applicant suffered loss of self-respect, dignity and confidence.

121In Wesley v. 2252466 Ontario Inc. o/a The Grounds Guys, 2014 HRTO 1591 at paragraph 67, the Tribunal reviewed a number of decisions in which the Tribunal awarded damages after finding that the applicant had experienced discrimination in employment on the basis of disability. The award for general damages range from $10,000.00 to $45,000.00.

122Taking into consideration the effects upon the applicant as he described them, the fact that he presented no objective medical evidence to support the impact of the injury and termination and the fact that this was seasonal work, I award the applicant the $10,000 in general damages that he requested.

Lost Earnings

123The applicant requests monetary compensation for wages lost for 12 weeks on an average work week of 55 hours at a rate of $24.00 per hour.

124The objective of remedy awards is to put the applicant in the position he would have been, had he not experienced a breach of his Code rights.

125The applicant may have continued to have income earnings throughout the remainder of 2014 had he not been terminated. Mr. Keuremenen testified that he continued to work until at least late November 2014 and his income for 2014 was similar to that for 2013. However, the Health Professional’s Progress Report forms that were completed by the applicant’s medical professionals indicate that up until at least the end of October 2014, the applicant was unable to work. In one of the reports dated October 9, 2014 the doctor has indicated, “this worker is not able to work because of the workplace injury/illness”. In response to the questions, “From the date of this assessment, the above limitations will apply for approximately:”, the doctor has checked the box, “14 + days”. There is no further medical documentation and the applicant did not provide any evidence to demonstrate that he could have worked in 2014.

126The applicant also gave evidence that his finger had not healed for three months, that he had tendon damage that continued to cause pain and limitations and that he had only been ready to return to work in February 2016.

127The evidence demonstrates that the applicant was not able to work in 2014 due to the injury he sustained on July 4, 2014. As a result, I do not find that he applicant experienced a loss of wages as a result of the violation of his Code rights. As stated above, the applied for benefits through the Workplace Safety and Insurance Board (“WSIB”). A WSIB Claims Manager determined that the applicant was not entitled to loss of earnings benefits on the grounds that the layoff from employment was due to “an employment situation”. The Claims Manager’s findings are obviously different from the decision I have reached in this Application. The applicant has indicated that he has appealed the WSIB decision to deny him loss of earnings benefits.

128Finally, remedies under section 45.2(1)3 to “promote compliance with this Act” are appropriate in this case. The applicant has asked that as a remedy for future compliance, the Tribunal order that the owners and managers undergo training about discrimination in the workplace. This appears to be a reasonable request, and will be part of the Order noted below.

ORDER

129The Tribunal orders that:

i. Within 30 days of this decision, the respondent shall pay the applicant $10,000 as monetary compensation for injury to dignity, feelings and self-respect. Pre-judgement interest, at the rate of 0.8% pursuant to section 128 of the Courts of Justice Act (“CJA”), is payable on this amount from September 2, 2014, the date the Application was filed. Post-judgment interest, at a rate of 2% pursuant to section 129 of the CJA, is payable 30 days from the date of this decision.

ii. Within six months of this Order, the respondent is required to provide a human rights training program to all its managers, foremen and supervisors. The respondent shall confirm in writing to the applicant that this training has been completed.