Wilson v. J. Sterling Industries, 2017 HRTO 1364

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marvin Wilson Applicant

-and-

J. Sterling Industries Respondent

DECISION

Adjudicator: Mark Hart Date: October 16, 2017 Citation: 2017 HRTO 1364 Indexed as: Wilson v. J Sterling Industries

APPEARANCES

Marvin Wilson, Applicant Self-represented

J. Sterling Industries, Respondent Tracy Yan, Representative

1This is an Application filed on December 20, 2016 alleging discrimination with respect to employment because of race, colour, place of origin, citizenship, ethnic origin (collectively “race”) and sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant self-identifies as a Black gay man from the Caribbean. He was employed by the respondent as a machine operator from May 11, 2011 to June 28, 2016. He alleges discrimination because of race and sexual orientation in relation to a number of incidents that are alleged to have occurred during the period of his employment, including the termination of his employment.

3By Case Assessment Direction (“CAD”) dated February 15, 2017, this Tribunal on its own initiative directed that this matter be scheduled for a summary hearing to determine whether the Application should be dismissed as having no reasonable prospect of success.

4The summary hearing in this matter was conducted by teleconference on July 20, 2017, at which time the parties were afforded the opportunity to make oral submissions on the issue of whether the Application has a reasonable prospect of success. Unfortunately, the applicant was cut off from the teleconference at some point during the respondent’s submissions and was unable to rejoin the call. At my direction, the Tribunal summarized the respondent’s submissions for which the applicant had not been present, which were brief, and afforded the applicant an opportunity to provide any reply submissions in writing. The applicant filed his reply submissions on July 27, 2017.

Analysis and Decision

5The primary issue raised at the preliminary hearing was whether the applicant can establish a link or connection between the issues he alleges that he experienced and the protected grounds of race and/or sexual orientation as cited in the Application.

6As stated in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

7As has been often stated, this Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must be able to prove a link or connection between a respondent’s alleged actions and a Code ground: see Shaikh v. Reliable Sports & Recreation Services, 2014 HRTO 929.

8In assessing whether the Application has a reasonable prospect of success, it is not my role at this stage of the proceeding to resolve conflicts in the evidence. However, by accepting the facts as alleged by the applicant as being capable of proof at a hearing, I am not required to accept the applicant’s beliefs or assumptions as to why the alleged conduct occurred. I am also not required at this stage of the proceeding to accept the applicant’s allegation that the alleged conduct was due to his race and/or sexual orientation without him being able to point to some evidence that he could bring forward at a hearing to prove a link or connection to one or more of these protected grounds.

9At the commencement of the summary hearing, I stated that the applicant must be able to demonstrate a link or connection between a specific adverse or negative action that he alleges that he experienced from the respondent, and the protected grounds of race and/or sexual orientation. I also stated that applications to this Tribunal generally must be filed within one year of the alleged incident of discrimination, which in this case would mean things that are alleged to have occurred on or after December 20, 2015. At the summary hearing, I reviewed with the applicant each of the incidents of alleged adverse treatment that he says he experienced from and after December 20, 2015, and with regard to each of these alleged incidents, I asked the applicant to assist me in terms of the basis upon which he is alleging that each incident is linked or connected to his race and/or sexual orientation, and what evidence he would bring forward at any hearing in this matter to prove this link or connection.

10The applicant generally alleges that Ms. Yan, who is in a managerial position with the respondent company, exhibited a preference for Asian workers to the detriment of workers of other nationalities, including himself as a Black man from the Caribbean. He also alleges that once Ms. Yan became aware of his sexual orientation, which he alleges was in November 2015, she began to treat him even more adversely. The difficulty with these general allegations is that they are unconnected to the specific incidents of alleged discrimination as set out in the Application. What I find to be lacking from the applicant is his ability to point to evidence in his possession or that may be reasonably available to him that would link or connect any specific incident of discrimination alleged in the Application to these general allegations of racial preference or adverse treatment because of sexual orientation, as is discussed in more detail below.

11The first allegation within the one year period is alleged to have occurred in late December 2015, when the applicant had a meeting with Ms. Yan. The applicant alleges that during this meeting, Ms. Yan asked him whether he wanted to be a supervisor. The applicant states that he told Ms. Yan that he would think about it and give her a response in the new year. The applicant alleges that on January 4, 2016, he went to speak with Ms. Yan and told her that he would accept the supervisor position, at which time he says Ms. Yan told him that she would speak with the owner about this matter. He states that Ms. Yan later approached him on the shop floor and told him that she had discussed the matter with the owner, and that the supervisor position was no longer available.

12At the summary hearing, the applicant clarified that he was only alleging racial discrimination in relation to this allegation. The applicant acknowledged and did not dispute that no-one was put in the supervisor position at this time or at any time prior to the termination of his employment. He acknowledged that this was not a situation where the respondent gave preference to an Asian employee by promoting him or her to the supervisor position. In these circumstances, it is my view that the allegation that the applicant was denied a supervisor position because of his race has no reasonable prospect of success.

13The next allegation raised in the Application is that on January 4, 2016, Ms. Yan told the applicant about an open position in shipping and receiving, but said that the applicant would need a forklift licence. The applicant states that he obtained his forklift licence on January 20, 2016 and brought it to show to Ms. Yan on January 22, 2016. He alleges that he was still denied the job in shipping and receiving because he had no prior experience driving a truck. At the summary hearing, the applicant acknowledged and did not dispute that the person who was hired for the shipping and receiving position was not Asian, but rather was an employee from Guyana. The applicant did not point to any specific evidence in his possession or that may be reasonably available to him that would connect this decision to his sexual orientation. Once again, in these circumstances, it is my view that the allegation that the applicant was denied shipping and receiving position because of his race and/or sexual orientation has no reasonable prospect of success.

14The next specific allegation raised in the Application relates to a discussion the applicant had with Ms. Yan on February 26, 2016 in which she asked him about getting to work late, and he explained that he no longer had a car and needed to rely on public transit. The applicant states that he subsequently had a discussion with the owner of the respondent company on February 29, 2016 about getting a loan to buy a car. The applicant states that on March 8, 2016, he was told by Ms. Yan that he was not going to get a company or personal loan to buy a car.

15At the summary hearing, the applicant confirmed that the adverse or negative treatment he is raising in relation to this incident is that he was denied a loan to buy a car. When asked how he was connecting this issue to his race and/or sexual orientation, the applicant stated that it was because at this time, Ms. Yan was denying him everything. However, the applicant was unable to identify any Asian employee, or indeed any other employee, who had been given such a loan, and was unable to point to any specific evidence in his possession or that may be reasonably available to him that would connect this issue to his sexual orientation. Rather, he stated that he was told that the company had never done this before and that, if the company did this for him, it might face similar requests from other employees. Once again, in these circumstances, it is my view that the allegation that the applicant was denied a loan to buy a car because of his race and/or sexual orientation has no reasonable prospect of success.

16The next allegation relates to a request made by the applicant in late March 2016 to work four days per week because he was attending school. This request was initially granted by Ms. Yan on March 28, 2016 on the condition that the applicant provide proof that he was attending school. The applicant did so on April 4, 2016 and was allowed to start working four days per week. Then on April 18, 2016, the applicant states that he was told by Ms. Yan that having him working four days a week was not to the company’s benefit and the applicant’s work days went back to normal. At the summary hearing, the applicant acknowledged that this was not related to his race or sexual orientation. This allegation has no reasonable prospect of success.

17The next allegation relates to a meeting that the applicant had with Ms. Yan on May 24, 2016, at which he was given a disciplinary warning letter regarding his late attendance and absences from work. The applicant states that during the course of this meeting, an issue arose whereby he was informed by Ms. Yan that the respondent’s time clock had been set only to record times at 15 minute intervals, such that if the applicant clocked in at 7:04 a.m. his arrival time would be shown as 7:15 a.m. This manner of setting the time clock affected all of the respondent’s employees. Once again, at the summary hearing, the applicant acknowledged that this allegation is not related to his race or sexual orientation and as such has no reasonable prospect of success.

18The next allegation raised in the Application relates to an issue that arose in June 2016, where the applicant alleges that he did not receive payment for all five vacation days he had requested, but only got paid for three vacation days. At the summary hearing, the applicant acknowledged that this allegation is not related to his race or sexual orientation and as such has no reasonable prospect of success.

19The next issue raised in the Application is that on June 23, 2016, the applicant asked Ms. Yan for a pay increase. The applicant states that Ms. Yan said that she would grant the increase on the condition that the applicant sign a document saying that for the next three months he would not be late or absent, and that if he was, then he would be fired. The applicant states that on June 27, 2016, Ms. Yan followed up with him as to whether he would agree to sign the document, to which the applicant replied that he was going to talk to the owner about this proposal. The following morning, on June 28, 2016, the applicant’s employment was terminated.

20When asked how he connected the allegation about being denied a raise to his race and/or sexual orientation, the applicant stated that Ms. Yan had given raises to Asian employees. The applicant could not say whether other non-Asian employees had been denied raises, although he said that he is aware of at least one other non-Asian employee who had been denied a raise. He also stated that he was not specifically aware of which Asian employees had received a raise, although he said that he was aware of a Filipino employee having received a raise. In my view, in the context of the applicant recently having been issued a warning letter and his ongoing pattern of late attendance and absences (discussed in detail below), the applicant has no reasonable prospect of establishing that his race and/or sexual orientation was a factor in the decision to deny him a pay increase.

21With regard to the termination of his employment, the applicant acknowledged that the termination letter stated that his employment had been terminated for cause due to late attendance and absences from work. At the summary hearing, the applicant stated that since he had received the warning letter on May 24, 2016, he had only been late for work a couple of times. However, with his reply submissions, the applicant provided a copy of his time sheets for this period, which show that from May 24, 2016 until June 28, 2016, the date he was terminated, the applicant had been late 11 times. While I appreciate the applicant’s point that this time sheet does not accurately record the specific time that he arrived at work and rounds up to the next 15 minutes, it nonetheless records him as being late if he clocked in after 7:00 a.m.

22The applicant also disputes the respondent’s reliance on his absences from work. He states that he had an agreement with Ms. Yan that he could use his vacation days if he was not going to attend work, as long as he gave Ms. Yan advance notice. He alleges that in stating that he was absent from work, the respondent is relying upon vacation days that Ms. Yan had agreed the applicant could take. In the Application, the applicant alleges that on January 19, 2016, he informed Ms. Yan that starting in late March 2016, there was a possibility that he would be using his vacation days in this manner, and that she agreed as long as he told her in advance.

23I will confess that in relation to this issue, I found the time sheets somewhat difficult to de-cipher. The time sheets provided by the applicant cover the period from February 2, 2016 to June 27, 2016. During this period of time, by my count, there are 22 week days where no clock-in or clock-out time is shown for the applicant at all (in counting these days, I have excluded April 8 and 15 when the applicant was working a four day week). In addition, there are a further 14 days where either a clock-in or clock-out time is shown for the applicant (though not both) and where no work hours are recorded. These absences would be far in excess of whatever vacation time the applicant was entitled to.

24Ms. Yan stated at the summary hearing that at the time of the May 24, 2016 warning letter, the applicant had accumulated 33 late attendances and 16 absences during the period from January 1, 2016 to May 24, 2016, and that this pattern continued after May 24, 2016 and led to the decision to terminate the applicant’s employment. The number of absences relied upon by the respondent is consistent with what is shown on the time sheets provided by the applicant.

25The applicant did not identify any evidence in his possession or that may be reasonably available to him to indicate that an employee of a different race or sexual orientation with a similar late attendance and absence record, even after receiving a warning letter, was not terminated and was allowed to continue working for the respondent. Nor did he point to any other evidence that would link or connect the respondent’s decision to terminate his employment to his race and/or sexual orientation. In these circumstances, I find that the applicant’s allegation that his race and/or sexual orientation was a factor in the decision to terminate his employment has no reasonable prospect of success.

26The Application also raises issues about the applicant not receiving a severance package and being denied Employment Insurance (“E.I.”) benefits. At the summary hearing, the applicant acknowledged and did not dispute that this was because the respondent was alleging cause for dismissal, and was not related to his race and/or sexual orientation. I note that the issue of whether the applicant is disentitled to his statutory termination and severance pay due to wilful misconduct is an issue for determination by the Employment Standards Branch (as are other allegations raised in the Application about being denied proper holiday and vacation pay and potentially the issue of how the respondent was recording time). Similarly, the issue of whether the applicant is entitled to reasonable notice of termination or whether the respondent can prove cause for dismissal is a matter for the Small Claims Court, and the issue around the applicant’s entitlement to E.I. benefits is a matter to be determined under the Employment Insurance Act. None of these matters are within this Tribunal’s jurisdiction.

27The final issue raised in the Application relates to the applicant’s benefits claims. The respondent’s benefits plan provides that it will only cover claims up to the date of termination and only if the employee submits any such claim within 60 days of termination. The applicant raises an issue regarding a dental appointment on September 17, 2016, some two and a half months after the termination of his employment, which he was told was not payable because the claim was not for an expense incurred prior to termination and was not submitted within 60 days. At the summary hearing, the applicant acknowledged that this was not related to his race and/or sexual orientation and as such there is no reasonable prospect of success.

28With regard to issues raised in the Application beyond the one year period prior to the filing of the Application, I also find that these allegations have no reasonable prospect of success for two reasons. First, because I have found that none of the allegations within the one year period have a reasonable prospect of success, the prior allegations are untimely and are subject to dismissal pursuant to s. 34(1) of the Code unless the applicant can establish that the delay in raising these allegations was incurred in good faith, which requires him to provide a reasonable explanation for the delay. No such reasonable explanation has been provided by the applicant.

29Second, I further find that these allegations also are unrelated to the applicant’s race and/or sexual orientation. The Application raises an issue from the spring of 2012 where the applicant was required to work night shifts which conflicted with his attendance at school. Not only is this issue grossly out of time, having occurred more than four and a half years prior to the filing of the Application, but there is nothing to connect it to the applicant’s race and/or sexual orientation. There is an allegation about the applicant refusing to work on the polishing machine sometime in 2015, which is an alleged health and safety issue and not an issue within this Tribunal’s jurisdiction. There is an issue about the applicant being denied payment to take a CNC course in the spring of 2015, which again is unconnected to his race and/or sexual orientation. And there is an issue from late November 2015 relating to work orders, which is not something that was directed specifically towards the applicant but rather was addressed with all employees.

30As a result, I find that the allegations raised in the Application have no reasonable prospect of success. Accordingly, the Application is dismissed on this basis.

ORDER

31The Application is dismissed as having no reasonable prospect of success.