HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mike Krajcik on behalf of Joe Krajcik
Applicant
-and-
Haugens BBQ. Ltd.
Respondent
DECISION
Adjudicator: Brian Eyolfson
Indexed as: Krajcik v. Haugens BBQ. Ltd.
APPEARANCES
Mike Krajcik on behalf of Joe Krajcik, Applicant
Mike Krajcik, Representative
Haugens BBQ. Ltd., Respondent
Steve Tzountzouris, Representative
Introduction
1This Application was filed on July 22, 2014, under section 34(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application, as originally filed, alleged discrimination in employment on the basis of “disability/perceived”, family status and marital status, as well as reprisal.
2The Application was filed on behalf of Joe Krajcik (the “claimant”) by his uncle, Mike Krajcik (the “applicant”). The claimant was employed by the respondent restaurant, Haugen’s BBQ. Ltd. (“Haugen’s”), as a “prep cook” between 2002 and July 2013.
3The respondent restaurant was represented in this matter by one of its two current owners, Steve Tzountzouris. The claimant’s aunt and uncle (not the applicant) were also co-owners of the restaurant until the end of 2008. The claimant’s uncle, who previously co-owned the restaurant, is also a relative of the current owners. The claimant and the current owners have known each other since they were young. They lived in the same rural area, shared a school bus and have a family connection.
The allegations
4The Application alleges discrimination on the basis of a perceived or “slight disability”. These allegations may be summarized as follows:
a. The claimant struggled through school but managed to finish grade 12 with assistance in a few subjects.
b. The claimant worked at Haugen’s for a few years in the 1990s when the current owners’ parents owned the business. He then left Ontario, but returned in 2002 and began working at Haugen’s again. At the time, his aunt and uncle were partners in the business with the current owners.
c. The claimant worked as a prep cook and filled in where needed over the next few years. He was paid a dollar or so above minimum wage on an hourly basis, like everyone else except management. He was paid overtime occasionally, and worked “normal” work weeks until 2008. There were no issues and Mr. Tzountzouris was the manager and boss.
d. Around 2008, the claimant’s aunt and uncle left the business. Not long after, the current owners “offered (duped)” the claimant to work on a salary basis with little details and no formal written agreement, stating that “it would be easier on them”. The claimant was asked if he wanted to work for $650 a week. At that point, he worked 40 to 45 hours a week. No one else was offered a salary.
e. A cousin of the current owners joined the crew as the kitchen manager. The owners started to add work responsibilities and hours to the claimant that became a part of his job. Since the claimant agreed to work on salary, his hours quickly went from 40 to 45 hours to 60 to 65 hours a week, and there was no increase in pay even though he asked for raises. They simply told him “when you finish your work you can go home”, which entailed work from regular hourly personnel who were sent home after the supper hour. The claimant, who started daily at 11 a.m., always had to stay until after close, around 10 p.m.
f. The claimant was not paid for 20-plus hours a week of overtime. Mr. Tzountzouris told him that he did not get overtime when on salary. The claimant, not knowing any different, continued to work, and his bosses stole $15,000 to $17,000 annually over five years of his pay.
g. The claimant, only, was verbally and emotionally abused at work, mostly at the hands of the new kitchen manager, with the support and participation of both owners. They targeted the claimant due to what they believed, perceived and assumed, that he was slow, had a learning disability and would never be able to figure out and/or do anything about their exploitation and control of him.
h. The claimant was subjected to various names and slurs, such as “retard”, usually in front of co-workers. They also made several inappropriate comments to him about his education. In 2010, when the claimant raised the possibility of his younger cousin working at Haugen’s for the summer, Mr. Tzountzouris said he “did not want to look after another retard”.
i. The claimant had enough, quit and was constructively dismissed. The “last straw” was in July 2013 when he asked for a day off and his boss said “kiss my ass”. Anyone could get a day off with no problem, but not the claimant.
5The Application also alleges that the claimant was subjected to reprisal by the respondent in relation to claims he filed with the Ministry of Labour (“MOL”) and for Employment Insurance (“EI”) benefits, after his employment with the respondent ended.
The respondent’s position
6In its Response to the Application, the respondent denies the allegations in the Application, and submits, in part, as follows:
a. The respondent is a family-run seasonal restaurant, typically closed from December to March. The restaurant is very busy in the summer months, and the kitchen can become a very demanding and stressful environment.
b. The applicant worked for the respondent seasonally, and there were breaks in his employment when he was laid off for more than 13 weeks.
c. The claimant is not disabled. The current co-owners have known him personally since they were kids, through family connections, and as an employee and friend since 2002. There has been no sign of any disability.
d. The claimant would often consume excessive alcohol and come to work hung over, unable to function and adequately perform his duties. His aunt and uncle managed his behavior until they left the business at the end of 2008. The claimant worked under the same arrangement in 2007 and 2008 when his aunt and uncle were owners.
e. On many occasions between 2009 and 2013, the applicant continued to drink heavily at night or on his day off, and this continued to affect his work performance. He was reprimanded and constructively criticized, but often chose to take these as personal attacks, and always ended up going back to his “old ways” eventually. His regular excuses were always that his uncle or neighbour came over so he had no choice but to drink heavily.
f. The claimant was generally very unproductive and would often interfere with the productivity of other employees. For example, if a server walked past him to get something he would engage them in conversation and not let them finish the conversation. When a delivery would come in, the claimant would stop what he was doing and engage the driver in lengthy socializing. The claimant was constantly asked not to interfere with other employees and to leave the drivers alone, but he would always end up going back to his old ways.
g. Although the claimant did not get a raise in the last few years, it is not true that he never received a raise. Raises are given based on individual merit and increases in minimum wage, and are earned and not automatic. The claimant rarely showed the respondent that he deserved a raise, but continued to receive raises in 2009 and 2010 after his aunt and uncle left the business.
h. Although voices may have been raised on rare occasions, as is usual in any busy kitchen, the claimant was never abused or harassed in the ways he describes. The applicant never made a complaint about his treatment and the respondent’s harassment policy was posted right beside his schedule. At the end of 2012, the applicant complimented the respondent for going above and beyond expectations with his bonus.
i. The claimant’s last day of work was July 28, 2013, and he then quit by text message because he was not allowed a day off. More particularly, the claimant asked for an extra day off because his uncle was coming to town, and was refused. When the day came, and the time for going to work was approaching, the claimant texted the respondent that his uncle told him to put his “foot down”, that the respondent should call someone else in and that he would be leaving to work in Alberta. The claimant then went into a “text rant” full of nonsense, which the respondent has seen before when the claimant consumed excessive alcohol.
PRELIMINARY ISSUES
7The Application indicated that the facts of the Application were part of other proceedings that had been completed, namely a claim to the MOL alleging a contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), and an EI claim.
8With respect to the MOL claim, the Application included a copy of an Order and Reasons for Decision of an Employment Standards Officer (“ESO”), issued May 13, 2014. The ESO determined that the claimant was entitled to overtime and public holiday pay, but not termination pay as there was no “constructive dismissal” pursuant to subsection 56(1)(b) of the ESA. The Application stated that the MOL was contacted to investigate the claimant’s pay issues, namely that he was led to believe that he was not entitled to overtime pay while on salary. The Application also stated that the applicant and the claimant did not bother to go into any details about human rights and harassment, and that no human rights issues were investigated by the MOL.
9The Application also included a copy of a Decision from the Social Security Tribunal (“SST”), dated May 7, 2014, concerning the claimant’s EI claim. The SST found that the claimant had demonstrated “just cause” for leaving his employment with the respondent, pursuant to sections 29 and 30 of the Employment Insurance Act, S.C. 1996, c. 23 (the “EIA”), having regard, in particular, to subsection 29(c)(viii) of the EIA, which refers to “excessive overtime work or refusal to pay for overtime work”.
10In its Response to the Application, the respondent requested that the Application be dismissed under section 45.1 of the Code, on the basis that the MOL claim appropriately dealt with the substance of the Application. The respondent submitted that the ESO addressed the claimant’s claim that for years he was abused and constantly humiliated by the respondent, and stated in the Decision that the respondent’s evidence indicated that he was reasonably treated by the respondent.
11The respondent also submitted in its Response that the Application was not filed within one year of the last alleged event. More particularly, the respondent submitted that the allegations in the Application occurred in 2010 and 2012, and the event of the claimant quitting was investigated by the MOL and deemed not to be constructive dismissal.
12On November 26, 2014, the respondent filed a Request for Summary Hearing, which the Tribunal denied by letter dated February 13, 2015.
13On March 20, 2015, the applicant filed a Request for an Order During Proceedings (“RFOP”) to amend the Application to include allegations that the claimant was subjected to discrimination on the basis that his employer felt that he was an alcoholic. The applicant also sought to amend the Application to include allegations on the grounds of solicitation and advances in relation to suggestions by the respondent’s co-owners that the claimant travel to Cuba with his supervisor. As the hearing was scheduled to commence on April 1, 2015, the Tribunal abridged the time for the respondent to provide a Response to the RFOP, and advised the parties that the RFOP would be addressed at the hearing.
14By Case Assessment Direction dated March 24, 2015, the Tribunal also directed that, in addition to being prepared to present their evidence and submissions at the hearing, the parties also be prepared to address a number of preliminary issues at the hearing, including the issue of delay raised by the respondent in its Response to the Application and the grounds of discrimination alleged in the Application. The Tribunal also directed the parties to be prepared to address whether or not, having regard to the MOL and SST Decisions, the Application should be dismissed, in whole or in part: as having been appropriately dealt with, pursuant to section 45.1 of the Code; on the basis that it would constitute an abuse of process for the Application, or part of the Application, to proceed; and/or, on the basis of issue estoppel.
Alleged grounds of discrimination
15At the outset of the hearing, the applicant and the claimant clarified that they were alleging discrimination on the basis of a perceived, and not an actual, learning disability, and reprisal. They also confirmed that they were not pursuing allegations that the claimant was subjected to discrimination on the grounds of family and marital status.
The applicant’s RFOP to amend the Application
16The Tribunal also heard further submissions from the parties on the applicant’s RFOP to amend the Application. The Tribunal denied the applicant’s request to add allegations of discrimination based on the claimant’s alcohol consumption, having regard to factors including, in particular, the late date at which the request was brought, less than two weeks prior to the commencement of the hearing. The Tribunal indicated that it may provide additional reasons at a later date. The applicant and claimant also confirmed that they were no longer pursuing allegations of discrimination based on the grounds of solicitation and advances.
17Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.
18In determining requests to amend applications under the Code, the Tribunal generally considers the nature of the proposed amendments, the timing of the request to amend, and prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926, and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
19The applicant’s RFOP alleged that the respondent made many references to the claimant’s alcohol consumption, and refers to letters and texts, and denying the claimant accommodation or an important day off. It also alleged that the respondent made insulting and humiliating comments, and that this was a pattern throughout the years.
20At the hearing, the applicant submitted that the respondent knew about the claimant’s “alcohol problem” over the years and commented on it on a weekly basis, but did not take steps to address it or accommodate him. The applicant submitted that the respondent gave the claimant a keg in 2012. He also submitted that when the claimant asked for a day off for a family reunion, he was told that he was not getting a day off because he was going to go out and drink alcohol.
21In its Response opposing the RFOP, the respondent submitted that the applicant was seeking to fundamentally alter the basis of the Application on “the eve of the hearing”. It submitted that alcoholism was never alleged as a disability, and that it is an entirely different allegation, with no factual basis, that was not referred to in the Application or Reply. The respondent also submitted that to allow the amendment would be very prejudicial to it, referring to the one-year time limit in section 34 of the Code, and submitting that its case for the hearing had already been prepared and that it did not have time to “redo” it. The respondent essentially reiterated these submissions at the hearing.
22I note that the Application alleges, without specifics, that the respondent portrayed the claimant as a person with a drinking or alcohol problem, but does not allege discrimination in relation to any actual or perceived disability related to alcohol. The Application also attaches materials from the MOL and SST proceedings in 2013 in which the respondent essentially raised the claimant’s alcohol consumption as a performance issue, as the respondent also did in its Response to the Application filed September 14, 2014.
23The applicant’s RFOP, however, appears to raise broad allegations of discrimination related to the applicant’s alcohol consumption throughout his employment with the respondent that would have significantly expanded the scope of the hearing. These allegations of discrimination were also raised for the first time in the RFOP filed March 20, 2015, less than two weeks prior to the start of the hearing, and nearly 20 months after the applicant last worked for the respondent. The applicant provided no explanation for waiting until this late date to seek to add these allegations of discrimination.
24While the one-year time limit in section 34 of the Code, set out below, applies only to when a person may apply to the Tribunal, and not to when an applicant can seek amendments, section 34 does set out the expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. See Khokher v. Intercon Security Limited, 2011 HRTO 1493.
25In the present case, the applicant’s RFOP to amend the Application was brought well after the parties’ deadline for disclosing and filing their documents to be relied on at the hearing, and their witness lists and will-say statements had passed. Granting the applicant’s RFOP would have likely necessitated an adjournment of the hearing in order to allow the respondent an opportunity to attempt to respond to the new allegations of discrimination, and further prepare for the hearing. In the circumstances, considering the nature of the proposed allegations, which would have significantly expanded the scope of the Application, and the very late timing of the amendment request, it would not have been fair, just and expeditious to grant the RFOP.
Delay
26Section 34 of the Code provides as follows:
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.
27The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist.
28In the present case, the respondent argues that the Application was not filed within one year of the last alleged event, as the allegations in the Application occurred in 2010 and 2012, and the event of the claimant quitting was investigated by the MOL and deemed not to be constructive dismissal.
29At the hearing, the respondent submitted that the applicant’s last day of work was July 28, 2013, that he quit by text message on July 30, 2013, and that the Application does not allege discrimination between July 23 and 30, 2013. The respondent submits that, as a result, the Application filed on July 22, 2014, was not filed within the one-year time period in section 34 of the Code.
30The Application asserts that the discrimination was persistent. At the hearing, the applicant submitted that the events were numerous, ongoing, daily and continuous, and included being denied a day off. The applicant alleged that the discrimination started in 2009.
31I understand the allegations in the Application to include that the claimant was subjected to discrimination on an ongoing basis throughout his employment with the respondent, in terms of being denied overtime pay, starting in 2009, and there is no dispute that his last day of work was July 28, 2013. It is also alleged that the claimant was subjected to discrimination when he was denied a day off near the end of July 2013, which it appears the parties also communicated about by text messages on or about July 30, 2013, when the applicant essentially asked for the day off again and was denied.
32In the circumstances, I find that the Application was filed within one year of the last alleged incident of discrimination. The respondent did not otherwise argue that the allegations in the Application do not constitute a series of incidents, and I also find that the allegations in the Application constitute a series of incidents. I find, therefore, that the Application was filed within the one-year time limit in section 34 of the Code.
Section 45.1 of the Code, abuse of process and issue estoppel
The MOL claim
33With respect to the claimant’s MOL claim and section 45.1 of the Code, the respondent reiterated at the hearing that the ESO specifically addressed the allegations that the claimant was for years abused and constantly humiliated, and found no evidence to support those claims. The respondent also submitted that the Application should be dismissed based on abuse of process and issue estoppel.
34The applicant, on the other hand, submitted that the MOL claim had nothing to do with human rights, and that the MOL indicated that it was not dealing with the “name calling” and did not have jurisdiction over human rights. The applicant submitted that the human rights issues were not investigated, and were not dealt with by the MOL.
35Section 45.1 of the Code provides that “[t]he Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application”.
36The Tribunal has found that an ESO investigation is a “proceeding” for the purposes of section 45.1 of the Code. See Reid v. Advantage Personnel Limited, 2012 HRTO 1742, and Carrier v. National Capital Region YMCA-YWCA, 2014 HRTO 1106 at para. 10. Accordingly, the issue is whether the ESO appropriately dealt with the substance of the Application.
37In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, the Supreme Court of Canada dealt with the interpretation of section 27(1)(f) of the British Columbia Human Rights Code, which is nearly identical to section 45.1 of the Code. In Figliola, the Court described the appropriate analysis a Tribunal should undertake when assessing whether the substance of an application has been appropriately dealt with in another proceeding, as follows, at para. 37:
… whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process mirrored the one the Tribunal prefers or uses itself…
38The Tribunal has found that the analysis adopted in Figliola, above, applies in Ontario and binds the Tribunal. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at para. 25 and Carrier, above, at para. 12.
39In Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, the Tribunal applied the Supreme Court of Canada’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. The Tribunal found that, in deciding whether another proceeding appropriately dealt with the substance of an application pursuant to section 45.1 of the Code, the Tribunal must consider not only whether the issue before the Tribunal was decided in another proceeding, but also whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding, taking into account the nature of the other proceeding, the applicant’s stake in it, and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights.
40In the present case, the ESO addressed the following issues in the MOL claim: overtime pay, public holiday pay, eating periods, termination pay and severance pay. There is no mention in the ESO’s Decision of the applicant having a disability, or being perceived to have a disability, and disability does not appear to have been considered in any way in the issues addressed by the ESO.
41It is not clear to me that the ESO had concurrent jurisdiction to decide human rights issues in determining any of the issues raised by the MOL claim. Clearly, the ESO did not address whether or not perceived disability was a factor in the claimant’s alleged unpaid overtime, and that was not an issue before the ESO. The ESO simply determined whether or not the claimant worked overtime for which he was not paid. I note, however, that in determining whether or not the claimant was entitled to termination pay under the ESA, the ESO addressed the claimant’s allegation that for years he was abused and constantly humiliated by the respondent, and that he was therefore constructively dismissed by the respondent.
42More particularly, section 56(1) of the ESA provides that:
An employer terminates the employment of an employee for the purposes of section 54, if…
(b) the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period…
43In concluding that the applicant quit and was not entitled to termination pay, the ESO stated in the Decision that the applicant provided no evidence that he was abused and constantly humiliated, and that the respondent’s evidence indicated that he was reasonably treated by the respondent. The ESO also held that there was no evidence that the claimant resigned from his employment “within a reasonable period”, as required by section 56(1)(b) of the ESA, and that his evidence suggested that it took him years to resign. The ESO found, therefore, that the claimant was not constructively dismissed within the meaning of section 56(1)(b) of the ESA.
44While both the MOL claim and the Application allege that the claimant was constructively dismissed, there is no indication that the ESO considered and applied human rights principles in determining whether or not the claimant was entitled to termination pay under the ESA, or in determining any other issue raised by the MOL claim. In particular, the ESO did not address whether the claimant was perceived to have a disability within the meaning of the Code, whether he was subjected to any discrimination on the basis of a perceived disability during his employment, and whether any such discrimination was a factor in the ending of the claimant’s employment with the respondent. Although the ESO addressed the claimant’s allegation that he was abused and constantly humiliated, there is no indication in the ESO’s Decision that any alleged abuse or humiliation was understood to be in relation to a Code ground. It simply appears that there were no allegations of Code discrimination before the ESO. In the circumstances, I do not find that the substance of the Application was, in whole or in part, appropriately dealt with by the ESA proceeding.
45With respect to the ESA proceeding and abuse of process, there does not appear to be any provision in the ESA that gives ESOs concurrent jurisdiction to hear and determine human rights issues per se. See Nowlan v. World Meats Inc., 2013 HRTO 747. As such, I also do not find that it would be an abuse of process for this Application, which includes a number of allegations that the claimant was subjected to discrimination throughout his employment, to proceed in general. In my view, whether or not the parties to this Application are precluded from re-litigating particular issues in light of findings made by the ESO, is more appropriately addressed under the doctrine of issue estoppel, as set out below.
The SST proceeding
46With respect to the SST proceeding, the SST heard the respondent’s appeal of an initial determination by the Canada Employment Insurance Commission (the “Commission”) that the claimant had “just cause” for voluntarily leaving his employment with the respondent. The appeal was supported by the Commission. The SST ultimately found that the claimant had demonstrated just cause for leaving his employment, within the meaning of sections 29 and 30 of the EIA, having regard, in particular, to subsection 29(c)(viii) of the EIA, which refers to “excessive overtime work or refusal to pay for overtime work”.
47I note that the SST Decision mentions that the applicant submitted to the SST that the claimant had been underpaid for years and was bullied, harassed and discriminated against regularly. The submission that the claimant was subjected to discrimination, however, does not appear to have been considered in any way by the SST. In particular, the SST found that the claimant had just cause for voluntarily leaving his employment with the respondent, in that he had no reasonable alternative to leaving his employment, solely in relation to the matter of unpaid overtime.
48There is no indication that the SST considered and applied human rights principles in determining whether or not the claimant had just cause for voluntarily leaving his employment under the EIA. There is no mention in the SST Decision of the applicant having a disability, or being perceived to have a disability, within the meaning of the Code. There is also no indication that the SST considered whether or not the claimant was subjected to any discrimination during his employment, and/or whether or not any discrimination was a factor in the claimant leaving his employment with the respondent.
49While it appears that the SST proceeding would constitute a “proceeding” for the purposes of section 45.1 of the Code, it is not necessary for me to determine that issue.
50With respect to abuse of process, the SST proceeding involved the claimant defending the respondent’s appeal of the Commission’s initial determination that he had just cause for voluntarily leaving his employment, within the meaning of the EIA, and was therefore entitled to EI benefits. The SST did not address any human rights issues, and the respondent did not attend the hearing before the SST. At the hearing before this Tribunal, Mr. Tzountzouris explained that he understood from the Commission, who appears to have been a party in the SST proceeding, that the Commission would make submissions and that it was not necessary for the respondent to attend the SST hearing. I also note that the SST’s finding that the claimant had no reasonable alternative and, therefore, just cause for leaving his employment, is seemingly at odds with the ESO’s finding that the claimant was not constructively dismissed. In all of the circumstances, I also do not find that it would be an abuse of process for the Application, which includes a number of allegations that the claimant was subjected to discrimination throughout his employment, to proceed in light of the SST Decision. Again, whether or not the parties to this Application are precluded from re-litigating any particular issues as a result of findings made by the SST, is addressed below.
WITNESSES
51The claimant and Mr. Tzountzouris testified at the hearing. In addition, the applicant called Roxane Wilson, Chris Hansen and Mark Knowles as witnesses.
ANALYSIS AND DECISION
Assessment of credibility
52To the extent that this Decision turns on my assessment of the credibility of the claimant and the parties’ witnesses, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354, at paras. 356-357:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the 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 (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
53I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and, observations as to the manner in which the witnesses gave their evidence.
54I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 at p. 205, with respect to assessing the credibility and reliability of testimonial evidence:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
The allegations
55As I understand it, the applicant alleges that the claimant was subjected to discrimination on the basis of a perceived learning disability. In particular, the applicant essentially alleges that the respondent took advantage of the claimant by placing him on salary and not paying him for overtime that he worked. It is also alleged that the claimant was subjected to inappropriate comments and name calling. I also understand the applicant to be alleging that the claimant was discriminated against when he was constructively dismissed as a result of the discrimination he faced throughout his employment, including being denied a day off near the end of July 2013. The Application also alleges reprisal.
Summary of evidence and findings
Background
56The claimant testified that he attended high school between 1989 and 1993, and worked at Haugen’s from 1987 to 1993. He returned to work at Haugen’s in 2002 when the current owners and his uncle were partners in the business. He worked as a prep cook, which was basically the same job he did before. He described the work environment and conditions as kind of difficult.
57With respect to his job duties, the claimant explained that he prepared french fries. He testified that he sometimes worked in the kitchen, but that sometimes it did not work out with the team, and he returned to his job in the back doing prep and cleaning.
58The claimant testified that, beginning in 2002, he worked with his sister from 9:00 a.m. to 3:00 p.m., five days a week, for $10 an hour. In 2004, his sister left and his hours increased. He stayed longer and worked five or six days a week.
59Mr. Tzountzouris testified that the claimant was hired by the former co-owners of the respondent in 2002, and he was a long-time employee who was engrained in their business when the former co-owners left in March 2009.
60Ms. Wilson testified that she worked at Haugens for a little over two years as a server at the front of the restaurant. She thought her last day was May 3, 2013. She testified that it was a very busy, fast-paced environment for everybody who worked there, and explained that they had to work as a team. She also testified that the management did not work as part of the team, but was more directive, pointing out faults rather than strengths. She testified that it was an intimidating environment, having management around.
61Mr. Hansen testified that he started working for the respondent as a “potato boy” in August 2012, until the closing of the season in November 2012. He worked four or five days a week, but started school in the fall. He cut potatoes into fries, and helped the claimant out the rest of the night with other stuff and closing by mopping and cleaning. He testified that it was mainly the claimant and him in the back, with other people on “the line” and out front.
62Mr. Hansen testified that the respondent’s owners were there during the dinner rush. He testified that he was there until closing a lot of times and often Mr. Knowles would lock up after the claimant left.
63Mr. Knowles testified that he worked for Mr. Tzountzouris for three years, until the end of 2012, and was treated fair and never had an issue. He explained that the claimant was responsible for prep and he was responsible for “the line” and closing the kitchen. Mr. Knowles was the main cook and closed the kitchen, so he was the “key holder”.
64Mr. Knowles testified that the claimant worked until the evening when they closed the kitchen after hours, and he assumed the claimant was there in the morning. He testified that, performance-wise, the claimant was fine, but on the weekends it was pretty busy and sometimes he would fall behind because there was a lot of work to do.
Salary
65Mr. Tzountzouris testified that the claimant had one of three full-time jobs in the kitchen, and worked in the back area physically separated from the main area, or “line area”, where all the other kitchen staff worked.
66In cross-examination, the claimant agreed that only he, the supervisor and one other person had full-time positions in the kitchen, and that everyone else was part-time. He also agreed that the supervisor and the other full-time person had completely different job descriptions compared to his.
67Prior to the hearing, the respondent provided a list indicating that the claimant, his replacement and one other person were salaried, non-management employees, which was not disputed.
68The claimant testified that he believed it was in the spring of 2007 when Mr. Tzountzouris approached him and said that they would like to put him on salary. Mr. Tzountzouris said that it would be easier for them with payroll. The claimant testified that he did not ask anything about money because it would have offended Mr. Tzountzouris. He said, “Okay, sounds good”. It was a verbal agreement and there was nothing “on paper”. He testified that he believed if he did not go on salary, his hours would have been reduced. He hoped that he would get a fair deal.
69Mr. Tzountzouris testified that the claimant’s productivity was always poor, and he never seemed to want to get out quickly as all other staff worked toward doing. The claimant would engage other workers and delivery people in conversation, and would help delivery drivers unload trucks. Mr. Tzountzouris testified that the claimant was repeatedly told not to do this, yet continued to do so. He also testified that the claimant was told by the owners and the kitchen manager (the claimant’s supervisor) that he could leave when his work was done, and that productivity was a constant topic of conversation, but the claimant would always go back to his “old ways”. Mr. Tzountzouris testified that the claimant’s quality of work was inconsistent, even with the time he took. He also testified that they had to “keep an eye on him”, but they never reduced themselves to blatant name-calling of the claimant.
70Mr. Tzountzouris testified that the claimant was put on salary to motivate him to be more productive, and that he should have got out by 6:00 or 7:00 p.m. He testified that the claimant was put on salary in 2007, and the claimant’s aunt and uncle were shareholders at the time and approved of the decision. The claimant was given raises in 2009 and 2010, after his relatives were no longer involved in the business. Mr. Tzountzouris testified that the claimant’s productivity and consistency was poor in 2010, but improved in the later part of the season, so Mr. Tzountzouris and his brother took the claimant for dinner and to a Maple Leafs game.
71Mr. Tzountzouris testified that the claimant was poor in 2011, but 2012 was a better year and they were generally happy with his quality of work, but consistency was still a problem. He testified that they considered giving the claimant a raise, but thought it was better to put him on an end of season bonus program, and he was given a cash bonus at the end of 2012 that represented a 2% raise over 2011. Mr. Tzountzouris referred to copies of text messages from December 7, 2012, wherein the claimant states that he is impressed by the company going over and above expectations with respect to his bonus. In cross-examination, the claimant testified that he got raises in 2010 and 2011, and that he got a $500 bonus at the end of 2012.
72Having carefully considered the evidence, I am satisfied on a balance of probabilities that the respondent’s assessment of the claimant’s productivity was a factor in the respondent putting him on salary. Mr. Tzountzouris was very clear and detailed in his evidence concerning the claimant’s productivity. Also, in cross-examination, the claimant agreed that he engaged employees and drivers in conversations often. Although he essentially disagreed that the conversations were lengthy, and testified that over two minutes was considered lengthy by the respondent, the claimant testified that he would be told that he was talking for half an hour. He also agreed that the owners and his supervisor constantly encouraged him to get his work done sooner and go home, but testified that it never happened as he would then be told that he could not go. He agreed that he was not in a rush, but testified that it was because he could not go home. He also agreed that he showed up late for work.
73While the claimant disagreed that his productivity was poor, he agreed that he was told to not continue helping “the delivery guy” because it was not in his job description, but he still did it a couple of times. He also testified that his supervisor would yell at him that he was not fast enough, and put him down with respect to speed and not being able to do this or that. Mr. Hansen also testified, as set out below, that the claimant would get yelled at by the kitchen supervisor for helping the delivery truck.
74The Application alleges that the claimant was “duped” into working on a salary basis by the respondent, after his aunt and uncle left the business. It was clear from the evidence and undisputed at the hearing, however, that the claimant worked on a salary basis during the 2007 and 2008 seasons while his aunt and uncle were still involved in the business. The claimant testified that his uncle left near the end of business for the 2008 season, and Mr. Tzountzouris testified that he left in March 2009. I note that the claimant did testify, however, that his uncle told him that he would not get involved, and that it was up to the claimant as to how he wanted to work. He also testified in cross-examination that his uncle had been a shareholder and a manager of the respondent restaurant, and did the kitchen schedule for many years, but the schedule was dictated by Mr. Tzountzouris.
Overtime pay
75With respect to “overtime pay”, I note that the ESO found that the claimant was entitled to unpaid overtime for pay periods beginning July 30, 2012 to July 22, 2013. In reaching this finding, the ESO appears to have concluded that the claimant was paid $1300 bi-weekly for 44 regular hours of work per week, which would equate to an hourly rate of $14.77. With all due respect, having carefully reviewed the ESO’s Decision, I simply cannot follow the reasoning in the Decision.
76In the Decision, the ESO notes the respondent’s position that the arrangement was that the claimant would work 6 days per week for a total of 57 hours for a salary of $650 per week, to cover 44 hours per week at minimum wage of $10.25 and an additional 13 hours at $15.38. Mr. Tzountzouris explained to the MOL that the respondent believed that 57 hours per week “would be the worst case scenario of the number of hours [the claimant] would ever work”. The Decision notes that the respondent deducted 12 hours bi-weekly as the claimant was entitled to two half-hour breaks per day. The Decision also notes that the respondent argued that “3rd level line cooks” were paid $11 per hour, “2nd level cooks” were paid $12 per hour and the “1st level kitchen supervisors” were paid $15 per hour. The ESO indicated that pay stubs for two individuals who the respondent said did the same job as the claimant in 2013 showed that they earned $10.25 per hour.
77The ESO also appears to set out in the Decision the actual hours worked by the claimant for pay periods ending between August 12 and December 2, 2012, and the wages the claimant would have earned at minimum wage. The ESO states that a “discrepancy and reconciliation problem” is clearly shown if the respondent’s testimony that the claimant was paid $10.25 per hour is accepted. Having reviewed the numbers set out in the ESO’s Decision, however, I simply do not see any such discrepancy. The hours that the claimant worked for these pay periods ranges between 99.75 and 118 on a bi-weekly basis, which would have resulted in bi-weekly earnings of between $1082.66 and $1363.25 if the applicant was paid on an hourly basis based on the hourly rates the respondent submitted, as opposed to $1300 bi-weekly based on 114 hours. The ESO also notes that, for the July 2012 to July 2013 period, the respondent’s records indicate that the claimant worked 2,246.75 hours within 40 weeks. This works out to an average of 56.17 hours per week, which is very close to 57 hours per week. I understand that in arriving at these calculations the ESO deducted a half-hour for a break when the claimant’s hours were equal to or less than 10.5 hours, and one hour for breaks when the claimant’s hours were higher than 10.5 hours per day.
78The ESO also noted that the claimant maintained that he had no idea of the arrangement, and that he alleged he worked 60 to 70 hours per week but provided no evidence to substantiate these hours.
79I appreciate that the doctrine of issue estoppel can apply when the following three pre-conditions, which appear to exist in the present case, are met:
The same question has been decided in an earlier proceeding;
The earlier judicial decision was final; and
The parties to that decision or their privies are the same in both proceedings. (Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 at para. 41)
80However, the doctrine of issue estoppel does not automatically apply where the above pre-conditions are met. As the Supreme Court of Canada emphasized in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, where the pre-conditions for issue estoppel are met, the adjudicator must sill determine whether, as a matter of discretion, issue estoppel ought to be applied. In exercising such discretion, the objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice, but not at the cost of real injustice in the particular case.
81In the MOL claim, the ESO determined whether or not the claimant was entitled to unpaid overtime pursuant to provisions of the ESA. The ESO did not apply any human rights principles or consider any allegations of Code discrimination in determining the overtime pay issue. It is also not the task of this Tribunal to determine if the claimant was not paid for overtime that he worked in light of ESA provisions, but whether or not he was subjected to discrimination contrary to the Code. In this case, I understand the applicant to be essentially asserting that the claimant was subjected to discrimination on the basis of a perceived disability when he was taken advantage of and not paid for significant overtime that he worked. The applicant also did not argue that the respondent was estopped from re-litigating the issue of whether or not the claimant worked overtime for which he was not paid. In all of the circumstances, including in particular that I simply cannot follow the reasoning of the ESO on the issue of overtime pay, I find that it is appropriate to examine the issue of alleged unpaid overtime in light of the evidence before me in order to avoid the potential of any real injustice in this case in determining if the claimant was subjected to discrimination contrary to the Code.
82I also note that while the SST also found that the claimant was not paid for overtime for the purposes of the EIA, the SST Decision appears to be based on a different finding than that of the ESO. In particular, the SST found that the respondent stated in an exhibit before the SST that the claimant “did work unpaid overtime, which was over the 57 hours per week”. The SST also found that the respondent stated in another exhibit that it advised the MOL that it would pay the claimant for any overtime beyond 57 hours per week. In an SST exhibit attached to the Application, which appears to be a letter that the respondent wrote to the MOL, dated November 19, 2013, Mr. Tzountzouris states that:
In 2013, [the claimant] did go over the 57 hours on some pay periods due to unusual circumstances. We typically hire another individual to also do the back of house job over the summer months. This person is paid hourly at 10.25 per hour doing the same job. In 2013 our first individual left and was replaced by another who also ended up leaving. Joe picked up some slack due to this.
83It was not disputed, and I accept, that the claimant did work more than 57 hours per week on some pay periods in 2013. I note that the claimant acknowledged at the hearing, as set out below, that the respondent lost “maybe one”, but he was not sure about two, “potato boys” in the 2013 season.
84Before this Tribunal, the claimant testified that, at the time he went on salary, he started work about noon and worked until 8:00 or 9:00 p.m., or 7.5 or 8.5 hours a day, six days a week (approximately 48 hours per work week on average). He explained further that three days a week he left at 8:00 or 8:30 p.m., and the other days he left at 9:00 p.m., and the “potato boy” would finish up the mopping. Occasionally, he would stay and help until 9:30 p.m. I note that the claimant’s evidence in this regard does not appear consistent with the allegation in the Application that he initially worked 40 to 45 hours per week on salary.
85The claimant testified that, in February 2009, Mr. Tzountzouris introduced the staff to a new supervisor. The claimant then testified that he noticed that he was working longer hours in the evenings. He complained to Mr. Tzountzouris’s co-owner, who would always say that if he got his work done he could leave, but the new supervisor would say that he had to stay and help. He testified that he asked about overtime and was told that he was on salary and not eligible for overtime. He was basically told to get his work done and leave. He testified that he was the last one to leave, and no one else worked those hours.
86The claimant testified that, in 2011, he went to Mr. Tzountzouris’s co-owner and said he was working more hours. He asked if he would get paid more that year and was told no and, if anything, they wanted to reduce his salary.
87The claimant testified that he started work at 11:00 a.m. On Sundays, he started at 10:30 a.m,. and for special events he started at 8:00 or 9:00 a.m. He worked on statutory holidays and had the next day off with no “time and a half”. He was always there until close at 8:30 or 9:00 p.m., or past close until 9:00, 9:30 or 10:00 p.m. He testified that he was never allowed to leave, and if he tried to leave the supervisor would threaten to call Mr. Tzountzouris. He only had one break and he was always told to make sure the door was locked. He testified that he believed all along that he was not entitled to overtime.
88The claimant testified that he was afraid to confront Mr. Tzountzouris with why everyone else got to go home, and he was always there 12 hours a day working himself “to the bone”. He testified that he was told he was lucky he had a job, that they did not put him on potatoes, and that they called him back.
89In cross-examination, the claimant agreed that he told a Service Canada representative that he was not sure how many hours of work he had. The claimant testified that there was no agreement so he did not know how to answer that question from the Service Canada representative. When asked how he could be sure later when he spoke to the MOL, the claimant did not really answer the question. He testified that he was lied to by the respondent. I note that it appears from the claimant’s MOL claim and the ESO Decision, both attached to the Application, that the claimant wrote in his MOL claim that he was “pressured and convinced to work for salary”, that he was “promised to have a regular wage at least 40 hours wkly” and that shortly thereafter he was “expected to work 60-70 hrs at the same wage”.
90In cross-examination, the claimant testified that when Mr. Tzountzouris asked him to go on salary they did not discuss what the arrangement would be. He agreed that he trusted Mr. Tzountzouris to be fair, and testified that he did not talk about hours with him. When it was put to him twice that he told the MOL that his salary was for “44 hours” a week, the claimant did not respond.
91When asked if it was possible his salary could have been for 57 hours per week, he testified that, based on his previous hours which were under 50 per week, he thought it would be under 50 hours per week, and then it gradually increased. He testified that he was working 44 hours, plus a couple more hours, and that is what he thought would continue. He testified that, under the salary agreement, he worked a minimum of 54 hours a week, and an average closer to 60 hours or more.
92Mr. Tzountzouris testified that the claimant misrepresented to the MOL that his salary was for 44 hours per week, which it was not. He also testified that the claimant did not ask him for overtime, and that the claimant did not have a key to the back door of the restaurant, which I understood he meant for closing the restaurant.
93Mr. Tzountzouris testified that the claimant’s replacement was on the same work schedule and compensation as the claimant. He referred to an Employment Agreement, dated September 12, 2013, with an individual who it was not disputed replaced the claimant. The agreement indicates that the individual will be paid a weekly salary of $650 for 44 hours of regular time and 13 hours of overtime, and that he will be entitled to two half-hour breaks for which the break time will be deducted for the purposes of total hours of work.
94While it is not clear, it appears that the Employment Agreement might have been made after the respondent was aware that the claimant had made a claim concerning unpaid overtime. Mr. Tzountzouris testified that within a week of November 1, 2013, he found out that the claimant had started a MOL claim. He also testified, however, that he told an ESO that the claimant’s replacement was working under the same arrangement as the claimant, but they did not have that in writing, and the ESO told him that they might want to, so they put it in writing. Also, a letter from the MOL to the respondent dated September 11, 2013, refers to the respondent’s “application for excess weekly hours of work” and the need to have a written agreement with employees.
95The respondent provided this Tribunal with “time card data” for the claimant for the February 29 to July 29, 2012 time period. During this time period, the claimant appears to have worked approximately 131 days. Data for 14 of these days appear to have quite anomalous entries, such as indicating that the claimant finished work at 3:30 a.m. or started work at 4:00 a.m., and was not considered. There was no other evidence before me that the claimant started or finished work at these unusual hours. Based on the remaining 117 days that the applicant worked, it appears that he worked an average of 9.14 hours per day, after one hour for breaks is deducted from each day, which would total of 54.8 hours over a six-day period. Of 11 weeks between March 13 and July 29, 2012, where it appears that the applicant worked six days in a row and there were no anomalous time entries, it also appears that the applicant worked an average of 54.8 hours per week (if the applicant only took one half-hour break per shift, as he testified, then presumably he would have worked an average of 57.8 hours over six days during this time period).
96I note again that, based on the hours the claimant worked set out in the ESO Decision for the July 2012 to July 2013 time period, it appears that the claimant worked and average of 56.17 hours per week (deducting a half-hour for a break when the claimant’s hours were equal to or less than 10.5 hours, and one hour for breaks when the claimant’s hours were higher than 10.5 hours per day during this time period).
97Aside from the claimant’s testimony about the hours he worked at the time he went on salary, there is no other evidence before me, documentary or otherwise, concerning the hours that the applicant worked prior to the 2012 season. In the circumstances, based on the evidence before me, I find that the claimant’s hours increased from approximately 48 hours per week to approximately 56 hours per week over the time that he was paid salary by the respondent. The evidence, however, does not support the allegations in the Application that the claimant’s hours increased from 40 to 45 hours to 60 to 65 hours per week while he was on salary, and that he was not paid for 20-plus hours a week of overtime.
98While it is not entirely clear why the claimant’s hours increased, I note that the claimant testified that, after the new supervisor joined the respondent in 2009, he noticed that the was working longer hours in the evenings. He also testified that Mr. Tzountzouris’s co-owner always said that he could leave if he got his work done, but the new supervisor would say that he had to stay and help. He also testified that he was never allowed to leave, and that if he tried to leave the supervisor would threaten to call Mr. Tzountzouris. He also essentially testified that he was yelled at a lot by the new supervisor, including in the evenings. The evidence of Ms. Wilson and Mr. Hansen, set out below, also supports the claimant’s evidence that he was yelled at by his supervisor. As such, I find that it is more likely than not that the expectations of the new supervisor were a factor in the claimant’s hours of work increasing.
Inappropriate comments, name calling and yelling
99The claimant testified that when Mr. Tzountzouris introduced the staff to the new supervisor in February 2009, he said that they were to ask the new supervisor anything they needed to know, and that, “this is Joey, he is stupid, don’t ask him anything”. He testified that about six to eight people were there at the time. While Mr. Tzountzouris testified that they never reduced themselves to blatantly name calling the claimant, he did not specifically deny making this comment, and the claimant testified clearly that Mr. Tzountzouris made this comment. In the circumstances, I accept on a balance of probabilities that this comment was made by Mr. Tzountzouris when he introduced the new supervisor to staff.
100The claimant testified that the new supervisor was not familiar with their “system” and he got uptight very easily. He testified that he got yelled at the most by the new supervisor, and that he did not have much support from other employees because he was the “guy at the bottom”. He testified that he got yelled at more and that management seemed to side with whatever minor little concern the new supervisor had. He testified that he seemed to be ganged up on, and every evening he was yelled at by the new supervisor.
101The claimant also testified that lots of staff complained about the new supervisor, and that he was hard to deal with, but that the claimant was targeted the most. They did not see “eye to eye”. He testified that the new supervisor would use a rude name for feces in Greek, and then ask him why he was so slow, and tell him that he should be able to do a particular job. He testified that it was not a serious thing but it became repetitive in 2009.
102In cross-examination, the applicant testified that he got screamed at several times a day, in the evening. He testified that a lot of staff complained about the new supervisor because he was hard to work with, but no one got yelled at like he did. He also agreed that a lot of staff complained about the new supervisor because he was yelling at them and calling them names. The claimant testified that, for a while, the new supervisor was basically complaining about everyone.
103The claimant testified that he continued to get yelled at by the new supervisor and that Mr. Tzountzouris started calling him names like “kracker” and “crack pot”. He testified that it was the same situation in 2010, and that Mr. Tzountzouris called him a “crack pot” and names like that. He also called him “kracker jack”, which he did not mind, but “crack pot” and stuff like that was very demeaning.
104In cross-examination, Mr. Tzountzouris put it to the claimant that he never called him “crack pot”. The claimant did not provide a clear response. The claimant agreed that Mr. Tzountzouris called him “kracker”, and that it was a “nickname”. He did not disagree that he called himself “the kracker”, that everyone adopted it and that it was based on his last name. In copies of text messages provided to the Tribunal, the claimant appears to refer to himself as “Da Kracker”.
105It is clear that the claimant was referred to as “kracker” by both himself and others, which appears to be derived from his last name, and does not appear to be related in any way to the alleged ground of discrimination. In my view, assuming the claimant was also referred to as “crack pot”, I find that there is insufficient evidence before me to conclude that it was in any way related to the alleged ground of discrimination. There was no evidence before me as to the context in which this alleged name was used, nor was there any submission as to how this alleged name related in any way to the allegations of discrimination on the basis of a perceived learning disability.
106At the hearing, the claimant was specifically asked if there were inappropriate comments about his education, and, in particular, if he was asked, “Were you in retard class?” He testified “not really”. The claimant was then asked if he was not told in front of other staff, “You had to be in a retard class.” He testified that he was subjected to degrading and unprofessional treatment. He also testified that things were said to him that were upsetting or degrading, and that he was picked on. He also testified that he said that he was in “a bit of a special ed, but in a general level”, and Mr. Tzountzouris would pick on him three or four times a year and bring that up and ask, “Weren’t you in a retard class?”
107Having carefully considered the claimant’s evidence, I do not accept that Mr. Tzountzouris asked him if he was in “a retard class”, or otherwise made inappropriate comments about his education as alleged. When specifically asked if Mr. Tzountzouris made such a comment, the claimant initially testified quite clearly, “not really”. When pressed by the applicant, the claimant was evasive before eventually testifying that Mr. Tzountzouris did make such a comment. When questioned in cross-examination about testifying that Mr. Tzountzouris put him down about his education, the claimant testified in a flippant manner that Mr. Tzountzouris said “you failed kindergarten” and “were you in a retard class”. When questioned about context, the claimant testified that it was said every year, about half way through the season, at least once, and in the same area or room of the kitchen, always. In my view, the claimant’s evidence concerning the context of the alleged comment(s) did not appear reasonable or probable in the circumstances.
108The claimant testified that, in 2011, Mr. Tzountzouris said, “All your drunks, how do you know you didn’t suck someone’s dick.” He also said to him one Saturday night when he was leaving, “Just remember, once a cocksucker always a cocksucker”. The claimant also testified that, in 2012, his supervisor said, “This cocksucker, he didn’t listen to me about the chickens”, and Mr. Tzountzouris told the claimant to just “never mind” and do his job as he had been yelled at before. While these comments are very offensive and inappropriate and were not specifically denied by the respondent, they do not appear to relate to the alleged ground of discrimination, and there was no submission before me that they did.
109The claimant testified that, in 2012, they needed a “potato boy” and his younger cousin wanted a job. He said his cousin would like a job and was told, “We don’t need to look after another retard”. He was also told that if his cousin did not show up it would be “on” him, so he was scared for his tips and wages and reprisal. He also testified that he always got a biased feeling for his family from the old partnership.
110In cross-examination, the claimant was asked if he was not told by Mr. Tzountzouris that the first step is to bring in an application when he asked about his cousin working for the respondent for the summer. The claimant testified that Mr. Tzountzouris said that they did not need more “retards”, and that Mr. Tzountzouris did not tell him to give his cousin an application, or that there were no openings at the time. He also testified that there was no “potato boy” at the time.
111The claimant was clear and consistent in his evidence that Mr. Tzountzouris used the term “retard” when the claimant raised the possibility of his cousin working for the respondent. Mr. Tzountzouris did not specifically deny making the comment in his evidence. Rather, he questioned why, if it was such a bad environment, would the claimant try to bring another family member in, and why would the claimant’s uncle allow his son to work in such a place.
112Having carefully considered the evidence, I accept on a balance of probabilities that Mr. Tzountzouris used the term “retard” when the claimant raised the possibility of his cousin working for the respondent.
113With respect to 2013, the claimant testified that he dealt with the same kind of stuff, referring to yelling and some name calling, but he did not provide any further particulars.
Ms. Wilson
114Ms. Wilson testified that she worked at other restaurants and described the restaurant business, including Haugens, as being one of the most abusive businesses she has been in. She testified that she felt bad for the claimant in light of how he worked and how he got treated. She testified that she had conversations with the kitchen supervisor and asked him why he was yelling at the claimant and talking to him and treating him “like that”, but she did not provide any particulars.
115In cross-examination, Ms. Wilson testified that the kitchen supervisor talked ignorantly to everybody, but he cursed and swore and was abusive to the claimant. She also testified, however, that she did not know what went on in the kitchen because she worked in the front and did not have the same manager.
116Ms. Wilson also testified that she would go get stock in the back of the restaurant and that she would ask the claimant about it. She testified that she remembered talking to the claimant and Mr. Tzountzouris would say “he doesn’t know what you are talking about”, and question why she would talk to him and tell her to get back and do her work. She described it as very bad treatment of people. She testified that it was less intimidating when Mr. Tzountzouris was not at work.
117I have serious concerns about Ms. Wilson’s testimony regarding the respondent’s treatment, and, in particular, Mr. Tzountzouris’s treatment of the claimant. Ms. Wilson showed considerable animosity towards Mr. Tzountzouris at the hearing. She also testified that the respondent’s owners or management were nasty and abusive to everyone, not just the claimant, but there are different degrees of abusiveness.
118Ms. Wilson testified that she was “let go” by the respondent. It was put to her in cross-examination that she refused to serve a table of “mentally challenged” customers, saying that they do not tip. Ms. Wilson was adamant that she was not given a reason for being let go. She added that she doubted that she would not serve a table of mentally challenged customers, and testified that she has never refused to serve a single table in her entire career. Ms. Wilson testified that she was angry at being accused of something like that. She also testified that she was angry about a workplace that allows people to be lied to or dismissed for no reason. She testified that she went back to complain two days after she was let go, and to talk to Mr. Tzountzouris, but she was not given an answer. Ms. Wilson told Mr. Tzountzouris at the hearing that he treated everybody poorly.
119Even if Mr. Tzountzouris did say to Ms. Wilson that the claimant did not know what she was talking about, question why she was talking to him and tell her to get back and do her work, it does not necessarily follow that these comments were made in relation to any perceived learning disability. Ms. Wilson provided very little context for these comments that she attributed to Mr. Tzountzouris. In any event, given concerns that I have about Ms. Wilson’s credibility and reliability, I am not prepared to accept on a balance of probabilities that any such comments were made by Mr. Tzountzouris in relation to the discrimination alleged in the Application. While Mr. Tzountzouris did not specifically testify as to whether or not he made the comments Ms. Wilson attributed to him, Ms. Wilson displayed a high level of animosity towards Mr. Tzountzouris at the hearing. She also repeatedly testified that the claimant and others were spoken to negatively in the workplace, but her evidence was vague and she did not appear to recall what was actually said, with the exception of the comments she attributed to Mr. Tzountzouris for which she provided very little context.
Mr. Hansen
120Mr. Hansen testified that the claimant worked very hard and “busted his butt”. He saw the claimant get yelled at a lot. He testified that the claimant would go help the delivery truck and the kitchen supervisor would yell at him, and that the claimant had too much to do at once. Mr. Hansen testified that the kitchen supervisor would just yell at the claimant a lot.
121Mr. Hansen also testified that the claimant was yelled at by Mr. Tzountzouris a lot. When asked about the claimant being called names, Mr. Hansen testified that he heard the claimant being told that a monkey could do his job. He added that he heard Mr. Tzountzouris say that to the claimant, but he did not provide any context. When specifically asked about the word “retard”, Mr. Hansen testified that he heard it once or twice toward the claimant, and that Mr. Tzountzouris said it to him, but he did not remember what day.
122In cross-examination, Mr. Hansen testified that Mr. Tzountzouris used the word “retard” in a back room where sauce is made by the “chicken room”. He testified that he did not know the circumstance, but Mr. Tzountzouris just said “retard man”. He testified that it was later in the shift, it was a busy night in the back and Mr. Tzountzouris sounded kind of “peeved off”, and said it “under his breath”, and the claimant took offence to it. He testified that just he, Mr. Tzountzouris and the claimant were there.
123In cross-examination, Mr. Hansen was asked about his witness statement which he testified he wrote. In his witness statement, Mr. Hansen states that the claimant was told that he was “something” and that “a monkey could do [his] job”, but he does not specify that the claimant was called any other names. Mr. Hansen states in the witness statement that the claimant was yelled at by the kitchen supervisor and that it is “like [the kitchen supervisor] was some kind of retard to act like that”. He does not indicate in his witness statement that anyone used the word “retard”. When asked about his use of the word “retard” in his witness statement, Mr. Hansen testified that it was a typo but did not elaborate.
124Mr. Hansen also testified in cross-examination that when he first started at Haugen’s Mr. Tzountzouris was kind of “ragging” on him. He testified that he kind of told Mr. Tzountzouris to “f-off”, and then Mr. Tzountzouris stopped bugging him.
125Having carefully considered the evidence, I am not prepared to accept Mr. Hansen’s evidence that he heard Mr. Tzountzouris use the term “retard” in relation to the claimant. In his evidence-in-chief, Mr. Hansen did not appear to have any recollection of when, where or in what context the comment was made. On the other hand, in cross-examination, Mr. Hansen expressed detail about the surroundings in which the comment was made, but still provided little context for the comment. He testified that he did not know the circumstance, but Mr. Tzountzouris sounded kind of “peeved off” and just said “retard man”. He also testified that he said it “under his breath”. I also found his explanation that his use of the word “retard” in his own witness statement was a typo to be unsatisfactory, which causes me to seriously question the veracity of his testimony that Mr. Tzountzouris used the term in relation to the claimant. In my view, Mr. Hansen appeared to be attempting to tailor his evidence to assist the claimant. In the circumstances, I am not prepared to accept his evidence on a balance of probabilities concerning any inappropriate comments made to the claimant.
Mr. Knowles
126Mr. Knowles testified that the kitchen was a very stressful place, and some of the guys would goof off in the kitchen and do or say things, but he could not recall any name-calling. When asked about raised voices, he referred to disagreements if they were short of something, and testified that the kitchen supervisor would be upset with the claimant. Mr. Knowles testified that the applicant was yelled at more than everyone else because he had more responsibility.
127In cross-examination, Mr. Knowles testified that he never witnessed any name-calling of the claimant over the full three seasons that he was there. He testified that the claimant complained about the hours he was working and being underpaid, and he was unhappy with his pay rate.
Request for day off
128With respect to time off, the claimant testified that he asked for a day off and was told that he gets a lot of time off as they are closed for the winter. He testified that he told Mr. Tzountzouris that he would like a day off and Mr. Tzountzouris was surprized. The claimant explained that he had an uncle coming from British Columbia and he would like time off, and Mr. Tzountzouris said, “No”, and, “You just want to get drunk”. The claimant testified that it was “time to get the hell out of there”. He also referred to having to work late, being screamed at that he was not fast enough, rules being violated and having his limits.
129In cross-examination, the claimant was asked if he quit because he was angry that he was denied a day off. He testified that it was part of the reason but that he had been thinking of quitting and moving on for years.
130In cross-examination, the claimant was asked if the respondent had already lost two “potato boys” in the season when he asked for the day off. He testified “maybe one” but he was not sure about two. He was also not sure if the respondent was short cooks in the kitchen. He agreed that the respondent’s business is seasonal, that July and August are the busiest months and that employees are most needed during the busiest months of the summer. He also testified that it was not surprising to him that he could not get the day off when it was a busy time of the year and the respondent was short staffed.
131Mr. Tzountzouris testified that, in 2013, the claimant asked for an extra day off during their busiest time when they were already “down” in terms of the claimant’s regular helper, the “potato boy”. He testified that the claimant’s request could not be accommodated and was refused. Mr. Tzountzouris testified that it was the first time the claimant requested a day off and was refused, and that the claimant simply quit. He testified that, on the day the claimant requested off, he texted that he would not be coming in to work, and was quitting to go work in Alberta. Mr. Tzountzouris referred to copies of electronic communications from July 30, 2013, attached to the respondent’s Response, wherein the claimant appears to state that his uncle was telling him to put his “foot down” that day, that he asked for the day off twice, that the respondent should call another person for the day, and that he was driving to Alberta.
132Based on the evidence, I find that it is quite clear that the applicant quit his employment with the respondent on or about July 30, 2013, and that at least part of the reason he quit was because he was denied a day off. There is no evidence before me to support the allegation that the claimant being denied a day off was somehow discriminatory, contrary to the Code. In particular, there is no evidence before me that supports the allegation that anyone, but not the claimant, could get a day off with no problem.
Was the claimant subjected to discrimination on the basis of a perceived disability, contrary to the Code?
133The definition of “disability” in section 10(1) of the Code includes “a learning disability”. Section 10(3) of the Code provides that the right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.
134Mr. Tzountzouris testified that the claimant alleges in the Application that he has a slight intellectual disability, but had no problem scoring in the “80s” in a food handler course, and getting certified by WSIB in 2009 to be on the joint health and safety committee.
135In cross-examination, the claimant was referred to a copy of correspondence and a certificate from the Workplace Safety and Insurance Board (“WSIB”) indicating that he completed the training requirements to be a certified member of his workplace joint health and safety committee. He testified that he did pretty well on a food safety handling test, scoring over 80%.
136In cross-examination, the applicant agreed that he never mentioned to the respondent, in the 12 years that he worked there, that he had any type of disability. The claimant also agreed that, since he and the respondent’s owners were kids, he never alleged any disability of any kind in any way.
137Ms. Wilson testified that, to her knowledge, the claimant does not have any sort of disability and she never believed he had a disability. Similarly, Mr. Hansen testified that nobody said that the claimant had some sort of disability and that he does not believe the claimant has a disability.
138To be clear, the Application alleges discrimination on the basis of a perceived, and not an actual, learning disability. There is no evidence before the Tribunal that the claimant has or had an actual disability within the meaning of the Code. Considering all of the evidence, I find that it has not been established that the claimant was subjected to any discrimination on the basis that he was perceived, presumed or believed to have or have had a disability, contrary to the Code.
139I have found, as set out above, that:
The respondent’s assessment of the claimant’s productivity was a factor in the respondent putting him on salary;
The claimant’s hours increased from approximately 48 hours per week to approximately 56 hours per week over the time that he was paid salary by the respondent. The evidence, however, did not support the allegations in the Application that the claimant’s hours increased from 40 to 45 hours to 60 to 65 hours per week while he was on salary, and that he was not paid for 20-plus hours a week of overtime;
It is more likely than not that the expectations of the new supervisor were a factor in the claimant’s hours of work increasing;
When Mr. Tzountzouris introduced the staff to the new supervisor in February 2009, he said that they were to ask the new supervisor anything they needed to know, and that, in reference to the claimant, “this is Joey, he is stupid, don’t ask him anything”;
Mr. Tzountzouris used the term “retard” when the claimant raised the possibility of his cousin working for the respondent; and,
It is quite clear that the applicant quit his employment with the respondent on or about July 30, 2013, and that at least part of the reason he quit was because he was denied a day off. There is no evidence before me to support the allegation that the claimant being denied a day off was somehow discriminatory, contrary to the Code.
140In my view, Mr. Tzountzouris’s comment referring to the claimant as “stupid” when he introduced the new supervisor to staff in 2009, and his use of the term “retard” when the claimant raised the possibility of his cousin working for the respondent, could support a finding that the claimant was perceived to have a learning disability. I note that while the latter comment, which I find insulted both the claimant and his cousin, was alleged to have been made in 2010, the claimant testified it was made in 2012. In any event, having carefully considered all of the evidence, including these two comments made by Mr. Tzountzouris, I find that there is insufficient evidence to establish on a balance of probabilities that the claimant was perceived to have a learning disability within the meaning of the Code. I have not found that it has been established that the claimant was subjected to any other comments related to the alleged ground of discrimination, during more than four seasons of the claimant’s employment covered by the allegations.
141It also appears from the evidence that the claimant was yelled at a lot, particularly by his supervisor. I have not found, however, that the claimant’s supervisor made any comments to the claimant that would appear to relate to the alleged ground of a perceived learning disability. I have also found that it is more likely than not that it was the expectations of the claimant’s supervisor that were a factor in the claimant’s hours of work increasing.
142I have also found that it is quite clear that the applicant quit his employment with the respondent, and that at least part of the reason he quit was because he was denied a day off, and that it was not established that being denied the day off was discriminatory. Having found that the claimant was not subjected to any discrimination on the basis of a perceived disability, contrary to the Code, during his employment with the respondent, I also find that it has not been established that the claimant quit his employment with the respondent for any Code-related reasons.
143While I have found that it has not been established that the claimant was perceived to have a disability, I appreciate that it is not necessary to be identified by a Code ground in order to establish that one was subjected to a poisoned work environment. In the present case, however, it was not argued that the claimant was subjected to a poisoned environment in the absence of a finding that he was subjected to discrimination on the basis that he was perceived to have a disability.
Was the applicant subjected to reprisal within the meaning of the Code?
144Reprisal is defined in section 8 of the Code as follows:
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.
145I understand the applicant to be alleging that the claimant was subjected to reprisal during his employment when he raised concerns with the respondent about his hours of work. There is no evidence before me, however, that when the claimant raised concerns about his hours of work with the respondent that he was claiming or enforcing any rights under the Code, or that he would have been understood to be doing so at the time by the respondent.
146I also understand that the Application alleges that the claimant was subjected to reprisal by the respondent in relation to the respondent’s involvement in the claimant’s claims with the MOL and for EI benefits, after his employment with the respondent ended. In my view, the respondent’s involvement in these other proceedings is covered by the doctrine of absolute privilege. See Carlos v. 1174364 Ontario, 2009 HRTO 311 at para. 15.
147I find that it has not been established that the claimant was subjected to any reprisal within the meaning of the Code by the respondent.
148For all of the above reasons, the Application is dismissed.
Post-Hearing Correspondence
149On April 7, 2015, the applicant wrote to the Tribunal, copied to the respondent, and stated, among other things, that hearing documents were entered by the respondent at the hearing that were not disclosed earlier. The applicant appears to state that he did not get copies of the documents from the respondent.
150At the hearing, the respondent asked that three documents (two one-page documents and one four-page document), which may not have been disclosed to the applicant prior to the hearing, be marked as exhibits. Copies of these documents were shown to the applicant and the claimant during the hearing, and they were provided with an opportunity to review the documents. The Tribunal also understood that copies of the documents were provided to the applicant by the respondent. The documents were marked as exhibits without any objection from the applicant.
151At one point in the hearing there was some confusion as to whether or not the respondent provided the applicant with actual copies of the three documents. The parties were directed that, if the applicant did not have copies of the documents, the respondent was to make copies of the documents during the next break in the hearing and provide copies to the applicant. The parties did not raise the issue of documents with the Tribunal again during the course of the hearing, or prior to the hearing adjourning, despite being asked by the Tribunal if there were any outstanding issues that needed to be addressed before the hearing adjourned.
152On April 30, 2015, the applicant filed a Request for Reconsideration which appears to raise, among other things, further arguments concerning an alcohol-related disability. To the extent that the applicant is seeking reconsideration of the Tribunal’s interim ruling on his RFOP to amend the Application, parties may only request reconsideration of final decisions of the Tribunal. See Rule 26 of the Tribunal’s Rules. In the circumstances, this Request for Reconsideration was not considered, nor will it be addressed by the Tribunal.
153On June 25, 2015, the respondent provided further brief written submissions to the Tribunal, to which the applicant responded on July 8, 2015. The parties’ post-hearing correspondence was not considered by the Tribunal in this Decision.
ORDER
154The Application is dismissed.
Dated at Toronto, this 5th day of February, 2016.
“Signed by”
Brian Eyolfson
Vice-chair