HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Latif Abdul-Rahman
Applicant
-and-
Children’s Aid Society of Toronto
Respondent
DECISION
Adjudicator: Jennifer Scott
Indexed as: Abdul-Rahman v. Children’s Aid Society of Toronto
APPEARANCES
Latif Abdul-Rahman, Applicant Self-represented and Olanyi Parson, Counsel
Children’s Aid Society of Toronto, Respondent David Ross, Counsel
Canadian Union of Public Employees Anne Gregory, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of race contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant alleges that his race was a factor in the respondent’s decision to terminate his services.
background
The Emergency After Hours Service
2The respondent operates a child protection service in Toronto. It provides services to children and families and responds to emergencies where child safety is jeopardized.
3As part of its child protection service, the respondent offers an emergency after hours service (EAHS) to respond to calls made after regular working hours. The EAHS is staffed by EAHS workers. EAHS workers are child protection workers and many have full time jobs with other children’s aid societies as child protection workers or supervisors.
4After-hours calls are answered by an answering services provided by Rogers. When a member of the public calls the respondent after hours, the call comes to an operator at the answering service. The process followed by the answering service is as follows:
a. The answering service receives calls from the public and notifies the EAHS worker who is scheduled on that particular shift that there has been a call.
b. The worker then contacts the answering service to retrieve the caller’s name and phone number in order to contact that person. In some instances where the caller does not wish to leave a phone number, the answering service will patch the call through to the worker.
c. The answering service will log when calls were made and received. It will also make notes when it receives particular requests from workers. Rogers records logs for a 16-month period.
5Operators follow a script, provided by the respondent, when answering calls to the answering service:
Do you need to speak with the on call worker?
If yes, take message below and page the on call.
If caller unsure, take message and page the on call.
If no, refer to office hours or they can access voice-mail.
6EAHS workers can be scheduled for two weeknight shifts: the early shift and the late shift. The early shift is from 5:00 p.m. to 11:00 p.m. The late shift is subdivided into two shifts. The first shift is from 11:00 p.m. to 2:30 a.m. and the second shift is from 2:30 a.m. to 9:00 a.m. The second shift ends at 8:30 a.m. in the summer.
7The EAHS worker must complete an EAHS report on every call that is received by the answering service.
Complaint against the Applicant
8The applicant was an EAHS worker with the respondent from April 2005 to July 2012. In that capacity, he often worked the 2:30 a.m. to 9:00 a.m. shift. The applicant is also a supervisor with the Catholic Children’s Aid Society of Toronto. He starts work with the Catholic Children’s Aid Society of Toronto at 9:00 a.m.
9On June 14, 2012, Dave Fleming (“Fleming”), the Director of Intake Services, received a complaint from Dr. Carter at Women’s College Hospital about the EAHS service. She complained that she could not get through to a worker when she called the answering service at 8:00 a.m. that day.
10Fleming sent the complaint to Mark McDermid (“McDermid”), the Manager of the EAHS, on June 21, 2012. In his email to McDermid, Fleming stated that Dr. Carter had told him that the answering service said something to the effect of “the man told us we are not to put any calls through after 8 a.m.” and told Dr. Carter to call back after 9 a.m.
11On June 22, 2012, McDermid sent Fleming’s email to the applicant because he was working the 2:30 a.m. to 9:00 a.m. shift on June 14, 2012. In his email, McDermid asked the applicant the following question: “can you clarify – you would not have told the answering service to NOT forward any calls between 8-9 correct?”
12That same day, McDermid contacted Sunita Persaud (“Persaud”), a Coordinator/Business Service Delivery with Rogers and asked her review the records from Rogers regarding the applicant’s contact with the answering service on June 14, 2012.
13On June 22, 2012, Persaud advised McDermid of the following:
On June 14th at 7:54 am Abdul called in and spoke to Arzoo and advised her to ask callers to call back after 9 am. Dr. Wise called in at 8:01 am and the operator told her that the on call was unavailable and advised her to call back after 9 am. Dr. Wise said that the call was urgent so a message was taken and paged to Abdul. Abdul called back at 8:09 am to advise us of his instructions. Dr. Wise called back at 8:34 am and requested to speak to the on call. The call was then repaged to Abdul, but he did not call to confirm the call. The call was then dispatched to intake at 9 am.
14Although it was a call from Dr. Carter that led to the respondent’s investigation, there is no record of this call from Rogers.
15On June 26, 2012, McDermid asked Persaud whether the applicant or any other worker had refused to take calls in the past. In his email to Persaud, McDermid said: “I know that we try to defer cases when possible to after 9 but any sitn’s [sic] where the worker has refused to accept calls”.
16On June 26, 2012, a discipline meeting was held with the applicant, his union representative Aubrey Gonsalves (“Gonsalves”), Fleming, McDermid and Andrea Lyttle (“Lyttle”) from human resources. In this meeting, the applicant was asked whether he instructed the answering service not to put calls through between 8:00 a.m. and 9:00 a.m. The applicant denied giving this instruction. He said he had called Dr. Wise at the Hospital for Sick Children from his cell phone. The applicant said he screened calls for emergencies when he was on his way to work. The applicant was asked for his cell phone log for the call to the Hospital for Sick Children. The applicant was advised that he would not be put on any further shifts pending further investigation.
17On June 27, 2012, Persaud advised McDermid that the applicant had occasionally asked the answering service to have callers call back after 9 a.m. and that she could not recall other workers making the same request. Persaud said that she tried running a system check, but the message volume was high and causing the program to freeze.
18McDermid asked Persaud to determine whether other workers had deferred calls. Persaud undertook a search using search terms “ask callers to call back”, “advise callers to call back” and “callers to call back” and determined no other worker had given this instruction for the period 2011 to 2012. She also conducted a search using the names of specific EAHS workers, including Erick Kirsh (“Kirsh”) and Karina Cal (“Cal”). Persaud determined that no other EAHS worker had given a similar instruction.
19A further disciplinary meeting was held on July 24, 2012 with the applicant, Gonsalves, Fleming and Lyttle. In that meeting, Fleming told the applicant that they had interviewed two answering service staff and that both had said the applicant had given direction to have callers call back after 9 a.m. They advised him further that his instruction was known as a special request. Fleming told the applicant that he had been advised that the applicant had given this special instruction three times in June 2012 and 36 times in 2011. The applicant was advised that the respondent had evidence that he failed to perform his duties and put kids at risk and as such, the respondent no longer required his services.
20A letter of termination was issued on July 24, 2012. In the letter of termination, the respondent stated the following:
An Emergency After Hours Worker is required to respond to a variety of calls that come into the Agency, some of which may require immediate emergency action. It is essential for workers to respond to these calls in order to obtain sufficient information from callers to determine next steps. Rather than responding to these calls, you chose to have them redirected thereby failing to make contact, perform a record check or obtain any information on the type of call and the potential emergency situation. Your actions amount to gross misconduct and cannot be tolerated.
As a result of the foregoing, this is to advise you that the Agency can no longer trust you to carry out the responsibilities of an Emergency After Hours Worker and will cease using your services effective immediately.
21In the fall of 2012 or the spring of 2013, the respondent changed the 2:30 a.m. shift to end at 8:30 instead of 9:00.
issues
22The applicant alleges that his race was factor in the investigation into his alleged practice of deferring calls, and in the decision to terminate his services. The applicant believes that he was over-scrutinized and subject to a harsher penalty than his non-racialized co-workers who engaged in the same practice. The applicant asserts that had the respondent investigated fairly, and had not been so quick to judge him and impose the penalty of terminating his services, it would have discovered that it was common practice for EAHS workers to defer non-urgent calls.
analysis
The Applicant’s Instructions to the Answering Service
Refusal to take Calls
23In mid June 2012, the respondent received a complaint that the applicant had instructed the answering service not to put calls through to him after 8:00 a.m., and to have the caller call back at 9 a.m., when the office opened. The respondent investigated the complaint and concluded that the applicant had refused to take calls. The applicant’s services were terminated in July 2012 for this conduct. The respondent determined that the applicant’s refusal to take calls put children and youth at unnecessary risk.
24The applicant disputes the respondent’s conclusion that he refused to take calls. He asserts that his instruction to the answering service was to defer non-urgent calls. The applicant alleges that the deferral of non-urgent calls was a common practice among EAHS workers and they were not disciplined for this practice.
25The applicant relies on the call from Dr. Wise on June 14, 2012. At 7:54 on that day, the applicant instructed the answering service to ask callers to call back at 9. At 8:01, Dr. Wise called the answering service. The answering service paged the applicant at 8:02. Dr. Wise called back at 8:34. The applicant testified that he returned Dr. Wise’s call twice. The first time, he called the number and received no answer. The second time, he spoke to Dr. Wise’s receptionist and left a message that he had called. The applicant produced his cell phone records which show that he called Dr. Wise’s number at 8:42 a.m. The applicant relies on this chronology to show two things: his instruction to the answering service was to defer non-urgent calls and he did not refuse to take calls.
26The archived messages for the period January 2011 to June 2012 show that the applicant instructed the answering service to ask callers call back at 9:00 a.m. (8:30 a.m. during summer hours) or when the office opens, 40 times. The instruction was usually given between 8:00 a.m. and 8:30 a.m. The call records indicate the answering service paged the applicant after receiving the instruction. This occurred on numerous occasions, including on January 14, 2011, January 31, 2011, May 6, 2011, as well as on June 14, 2012. The applicant relies on this evidence in support of his claim that his instruction was to defer non-urgent calls.
27I do not accept the applicant’s evidence that his instruction was to defer non-urgent calls for the following reasons.
28One, the EAHS is an emergency service. The applicant conceded this point in his evidence. One presumes that after-hours calls to an emergency service are urgent. That presumption is over-ridden by the caller when he or she is asked if they need to speak with the on-call worker. That is the only screening that is done and it is done by the caller. If the caller answers yes to that question, the on-call child protection worker is paged. Conversely, if the caller answers no, the caller is given the office hours or transferred to the office voice-mail. If the caller is unsure, the worker is paged.
29The applicant testified that operators are able to deviate from the script that is provided to them in that they are permitted to ask the caller whether the call is urgent. I do not understand the distinction that the applicant is trying to make. In my view, there is no substantive difference between asking the caller if he or she needs to speak with the on-call child protection worker and asking the caller if the call is urgent.
30In any event, I do not accept the applicant’s evidence that operators can deviate from the script. The applicant is not in a position to know what operators can and cannot do. Moreover, the applicant’s evidence on this point is contradicted by the evidence of Persaud. Prior to becoming the Coordinator/Business Service Deliver, Persaud was an operator for three years. Persaud testified that operators are required to follow the script provided by the respondent.
31Two, the applicant’s assertion that he instructed the answering service to defer non-urgent calls implies that the operator is able to decide whether the call is urgent. The operator has no ability to make that determination. Operators answer calls. They have no expertise to determine whether the subject matter of a call is urgent. The only person who is trained to make that determination is the on-call child protection worker and that assessment can only be made after speaking to the caller.
32Three, the archived messages do not support the applicant’s evidence that he instructed the operators to defer non-urgent calls. Persaud testified that the applicant’s instructions were known as special requests. She testified further that the operators recorded the instructions as they were given by the applicant. The archived messages support this evidence. The instructions are noted as “per Abdul” and the wording of the instructions varies. This suggests that the instructions were taken down verbatim by the operators. When asked what the instruction “tell callers to call back at 9:00 a.m.” means, Persaud stated it is to advise callers to call back at 9, whether they are urgent or non-urgent calls.
33There is only one instruction that is consistent with the applicant’s assertion that his instruction was to defer non-urgent calls. On May 12, 2011, the applicant instructed the answering service to “tell callers to call back at 9 AM unless it’s an extreme emergency as per Abdul”. This is the only instruction where the applicant asked the answering service to send only urgent calls. In all of the other instructions, there is no reference to urgent or non-urgent calls.
34In my view, the best evidence before me is the archived messages which record the applicant’s instructions to the answering service. The archived messages were obtained by Persaud in 2012, when this incident occurred. The instruction is clear: it is to defer calls until the office opens. By instructing the answering service to tell callers to call back, the applicant was refusing to take calls. The fact that the answering service ignored his instruction on certain occasions does not change the fact that the instruction was given and calls were refused. I therefore find the applicant refused to take calls during the period January 2011 to June 2012 when he instructed the answering service to tell callers to call back when the office opened.
35In making this finding, the applicant’s complaint of discrimination must be dismissed. The applicant asserts that it was common practice for EAHS workers to defer non-urgent calls. He does not assert that it was common practice for EAHS workers to defer or refuse calls. Because the applicant does not allege that other workers deferred calls, there is no basis to find that the applicant was treated more harshly than his non-racialized colleagues.
36The applicant argues further that he was treated in a harsher manner when he was required to participate in disciplinary meetings. The applicant states that when complaints are received against other workers, they are informed by email and given an opportunity to respond: they are not required to attend disciplinary meetings. The difficulty with this argument is that there is little evidence about the nature of the complaints against the other workers. The applicant testified that Maria Valverde (“Valverde”) received a complaint about not returning calls to the police. There is no information about the particulars of this complaint. Kimberly Donegan (“Donegan”) testified that she received two complaints: one complaint involved her supervisor requiring more information in a report and the other complaint was about Donegan herself. She provided no information about the second complaint. In the absence of evidence about the nature and seriousness of these complaints, it is impossible to compare the respondent’s response to the applicant and other EAHS workers.
37For these reasons, I find the applicant has failed to establish discrimination. There is no evidence that other EAHS workers refused to take calls by asking the answering service to defer calls to when the office opened. In the absence of other workers engaging in this practice, there is no basis for the applicant’s assertion that he was treated in a more punitive manner than his non-racialized colleagues. The respondent was advised that the applicant had refused to take calls. The respondent investigated this allegation and determined that it was true. The applicant was terminated because his actions put children at risk. The respondent’s decision to terminate the applicant’s services was not an over-reaction nor was it overly punitive and as such, the applicant’s allegation that his race was a factor in the decision must be dismissed.
Deferral of Non-Urgent Calls
38If I am wrong in my finding that the applicant refused calls, his complaint must still be dismissed because the applicant has failed to establish other (non-racialized) EAHS workers deferred non-urgent calls.
39The applicant’s evidence was inconsistent as to which EAHS workers instructed the answering service to defer non-urgent calls. Initially, the applicant asserted that Cal, Kirsh and Valverde deferred non-urgent calls. As a result of this assertion, I ordered the respondent to contact Rogers and obtain all documentation relating to the calls paged to Kirsh, Cal and Valverde in 2011 and 2012 between 8 a.m. and 9 a.m., the rationale being that if calls were not forwarded to them, an inference might be drawn that they also gave instructions to defer calls. The archived messages (which would show their actual instructions) were not available because they were kept for only 16 months.
40I was subsequently advised by respondent’s counsel that Valverde did not work the 2:30 a.m. to 9:00 a.m. shift between January 2011 and June 2012 and therefore the documents that I had ordered produced did not exist. Cal worked one 2:30 to 9:00 a.m. shift during this period. Kirsh is the only individual who worked 2:30 to 9:00 a.m. shifts. The applicant did not call him as a witness.
41During his evidence, the applicant testified that Melanie Dignam and Donegan also deferred non-urgent calls. The only person called by the applicant was Donegan.
42Donegan is a child protection worker with the Catholic Children’s Aid Society of Toronto. She started working with the respondent as an EAHS worker in 2008 and continues to work in that capacity today. She has not worked the 2:30 a.m. to 9:00 a.m. shift in many years. The last time that she worked that shift was in 2010.
43Donegan testified that if she was paged while driving to work, she would pull over and call the caller. She would ask the caller if it was an emergency. If it was, she would take down the relevant information. If it was not, she would ask the caller to call back at 9:00 a.m. In both of these scenarios, Donegan spoke directly to the caller.
44Donegan testified further that it was common practice to ask the answering service to ask callers to call back at 9 if you were driving to work. Donegan did not have a specific recollection of doing this herself. She conceded that if the EAHS worker knew that it was an emergency, the worker would take the call. Donegan testified that Nissa White (“White”) told her that she deferred calls and that she knew other people did it, including the applicant. Donegan testified that she did not know of anyone who told the answering service not to forward any calls.
45I do not accept that this evidence establishes that other EAHS workers deferred non-urgent calls. First of all, Donegan has not worked the 2:30 a.m. to 9:00 a.m. shift since 2010 and therefore cannot speak to the practices of the EAHS staff in 2011 and 2012. Secondly, Donegan testified that she spoke to the caller in order to determine whether the call was an emergency. Speaking to the caller and determining whether the call is urgent is different from instructing the answering service to defer non-urgent calls. While Donegan testified that it was common practice for EAHS workers to defer non-urgent calls, she had no specific recollection of doing it herself. Thirdly, Donegan testified that she knew that White deferred non-urgent calls. However, White left in 2010. Again, this evidence, which is hearsay, does not establish that White deferred non-urgent calls in 2011 and 2012. While Donegan may believe it was a common practice for EAHS workers to defer non-urgent calls in 2011 and 2012, her evidence does not establish this practice.
46Moreover, had the deferral of non-urgent calls been a common practice among EAHS workers, the applicant would have informed the respondent of this during the two disciplinary meetings on June 26 and July 24, 2012. He did not do so. When asked during cross examination whether he told Fleming or McDermid during the disciplinary meetings that other people engaged in the same behaviour, his answer was “I wasn’t asked”. The notes of the disciplinary meeting taken by Gonsalves make no reference to other EAHS workers engaging in this practice.
47The respondent changed the 2:30 a.m. shift to end at 8:30 a.m. instead of 9:00 a.m. in the fall of 2012 or the spring of 2013. McDermid testified that this change was made for two reasons. One, as a result of a staffing change, he had staff available to cover the 8:30 a.m. to 9:00 a.m. time period. Two, after reviewing the incident with the applicant, he felt that it made sense to provide relief to EAHS staff travelling to work by ending the shift sooner. The applicant asserts the shift change is evidence that he was not the only EAHS worker to defer non-urgent calls. He believes that if he was the only worker, the shift change would not have been made.
48I accept that after the incident with the applicant, the respondent may well have recognized the difficulty EAHS workers had in answering calls while they were travelling to their full time jobs. I am not sure what conclusion can be drawn from this other than the shift change was done to eliminate the difficulty. I do not think it is reasonable to conclude from the fact of the shift change alone that other EAHS workers deferred non-urgent calls. Such a conclusion would be purely speculative.
49In conclusion, I find the applicant instructed the answering service to defer calls until 9:00 a.m. when the office opened. In giving this instruction, the applicant refused to take calls. The fact that the answering service ignored this instruction on certain occasions does not change the fact that the instruction was given. The applicant was terminated for refusing to take calls. There is no evidence to support the applicant’s allegation that he was subject to greater scrutiny and overly punitive measures than his non-racialized colleagues because there is no evidence that his non-racialized colleagues refused calls by instructing the answering service to defer them until the office opened.
50Finally, during his testimony the applicant made a number of allegations of discrimination that were not pursued during final argument. They included a bald assertion that McDermid covered for a non-racialized employee, but not for the applicant, even though the applicant testified that McDermid did cover for him on an occasion. They also included an assertion that Fleming made comments about the applicant driving a truck and about the applicant being a trainer for the Ontario Association of Children’s Aid Societies (“OACAS”) and whether English was the applicant’s first language in the context of a position with the OACAS. The applicant provided no evidence or context for these comments other than the mere assertion that they were made. The applicant was correct in not pursuing these allegations of discrimination in final argument as there was insufficient evidence to support them.
order
51For these reasons, the Application is dismissed.
Dated at Toronto, this 7th day of December, 2016.
“Signed By”
Jennifer Scott
Vice-chair