Youssef v. Gemstar Security Services Ltd., 2017 HRTO 1434

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohamed Youssef

Applicant

-and-

Gemstar Security Services Ltd.

Respondent

DECISION

Adjudicator: Naomi Overend

Date: October 31, 2017

Citation: 2017 HRTO 1434

Indexed as: Youssef v. Gemstar Security Services Ltd.

APPEARANCES

Mohamed Youssef, Applicant

Semone Coghiel, Representative

Gemstar Security Services Ltd., Respondent

Adrian Jakibchuk, Counsel

1The applicant, Mohamed Youssef, was fired from his job with the respondent, Gemstar Security Services Inc. (“Gemstar”), on December 19, 2014. He filed an Application that same day, alleging discrimination in employment because of disability contrary to the Human Rights Code (the “Code”).

2At the time, the applicant was not given an explanation for the termination of his employment, and his Record of Employment simply said “Other” in the box setting out the reason. The applicant suspected, however, that as he had recently advised the respondent of a back problem, for which he was seeking a workplace accommodation, his disability was a factor, if not the only factor, in the respondent’s decision to let him go.

3In response to the Application, the respondent states that it terminated the applicant’s employment after the applicant was involved in a car accident with a company vehicle. It takes the position that this was the culminating incident in a series of incidents that caused Gemstar management to be concerned about the applicant’s suitability for the position.

4For the reasons set out below, I find that the applicant’s has not established that his disability was a factor in the respondent’s treatment of him.

Facts

5The applicant was employed by Gemstar as a “mobile” security officer commencing August 6, 2013. This entailed the applicant driving in a Gemstar vehicle to various sites, with which Gemstar had contracts, to do routine patrols and to check on suspicious occurrences.

Issues that arose prior to the applicant’s request for accommodation

6There was some interpersonal conflict, largely between the applicant and other Gemstar employees, which periodically arose in the applicant’s 16-month employment with the company. Early in his tenure, he complained about tension between him and a dispatcher. Two months later, he complained of workplace harassment by Tony Piscitelli, the human resources manager, to the one of the owners, Rose Catalano. Both complaints appear to have been resolved, and the applicant filed no further complaints about these individuals.

7In February 2014, the applicant had an altercation with another mobile security guard at the dispatch office because he believed he had been pushed by this man. The two had to be separated, but again there was no further report of any problems between them. In May 2014, there was a further incident with the applicant refusing to attend two sites that he was asked to respond to by dispatch.

8Despite these issues (and receiving a parking ticket in January while using a Gemstar vehicle), the applicant was promoted to the position of liaison officer on June 7, 2014, a position which involved supervisory responsibilities and a higher rate of pay. On June 16, 2014, he received a second parking ticket on the job.

9On July 2, 2014, the human resources manager criticized the applicant in a note about the manner in which he had handled two incidents the previous night. The applicant approached the logistics manager that day to say he did not want to continue as liaison officer, and was assigned to the position of lead hand. The rate of pay for that position was less than that of liaison officer (but more than that of a guard), reflecting the fact that it had fewer supervisory responsibilities. The applicant remained in this position for the balance of his time with Gemstar.

10The applicant was written up and/or spoken to concerning the following incidents in his role as lead hand:

• July 14, 2014: Smoking in the vehicle during the shift.
• September 13, 2014: Becoming agitated and aggressive at a police station, where one of his guards was detained for several hours to provide a report to the police on an incident that she had been involved in during her shift.
• October 8, 2014: Taking a bottle of drain cleaner from one of the client sites and putting it in the trunk of his vehicle.
• October 17-19 2014: While filling in as the on-site guard for a condominium, the property manager and vice-president of the board of directors complained that the applicant for spent too much time in the party room, and not enough time patrolling. The property manager also complained that the applicant left the party room windows open, even when it was unoccupied.

11With respect to the drain cleaner incident, the applicant testified that the full bottle had been placed by a garbage container at the school, and he was concerned that its contents posed a safety hazard for the students. The respondent’s witnesses testified that they were suspicious that the applicant had dishonestly removed the bottle of drain cleaner from the school.

12There were other, minor incidents that the respondent’s witnesses testified about, which I need not detail. There were no incidents of note in the month of November.

The applicant’s request for accommodation

13The applicant testified that he started experiencing back pain in or around September or October 2014. He attended a walk-in clinic in November 2014, where the doctor he saw referred him for further tests. These tests confirmed that the applicant had degenerative disk disease in multiple locations in his spine and a herniated disk in his lower spine.

14The applicant discussed with his doctor that driving seemed to aggravate the pain, and the doctor recommended that he drive less. The applicant testified that he could drive as much as 200-300 km in any given shift, but agreed in cross-examination that the average was 150-200 km. In mid-November, he had moved from his home in Mississauga to a new home in Shelbourne, Ontario, a small town north and west of Orangeville. This move involved a longer commute to the Gemstar offices, which added to the time he spent driving on days when he was working.

15The applicant met with Gemstar’s operations manager, Dave Catalano, on December 3, 2014 to ask for a “static” job. That is, he requested a security guard position at a single location, rather than a mobile job that required him to drive during the course of his shift. Gemstar had approximately 30 such positions. The operations manager told him that it could take time to for a position to come available and asked if the applicant was okay continuing in his mobile job until then. The applicant advised that he was prepared to wait.

16On December 10, 2014, the applicant approached the service manager, Dragos Leoca, whom he described as the “second in command” to the operations manager to say that he wanted to move to a static location. The service manager told him that the operations manager had told him about such a request, and asked the applicant how far he was willing to drive.

17It was the service manager’s evidence that the applicant told him he was only interested in two sites – Beacon Hall and Brookfield Refrigerated – neither of which were available at that time. The applicant denies that he expressed any interest in the Brookfield site, because the guard house was not particularly comfortable and he understood the washroom facilities to be far away. It was not disputed that the Beacon Hall site had a better appointed guard house and also was also a quieter site, involving less work.

18In any event, both agreed that the service manager told the applicant that an opportunity at a third site – Swan Lake – would be opening up in the New Year. The applicant advised him that he thought the Swan Lake site was too far away, and he would be prepared to wait until such time as a better position became available. The service manager’s notes of this meeting (written that day) state that the applicant indicated that he was not in a rush, and to keep him in mind if something came available.

19The respondent entered printouts from Google Maps, which showed that the Gemstar office was 80.3 km from the applicant’s house, but that the fastest route was 96.4 km and could be reached in 68 minutes if there was no traffic. The maps also showed that the Beacon Hall site was 89.9 km from the applicant’s home (68 minutes), the Brookfield site was 69.8 km (58 minutes) and Swan Lake was 116 km (89 minutes). They also produced data for a fourth site – MJA Brown – which was 78.4 km (60 minutes) away from the applicant’s home.

The events preceding the termination of the applicant’s job

20There was an incident in the early morning hours on December 11, 2014, when the applicant attended at a school site to respond to a “fire trouble” alarm. He complained to the human resources manager that the dispatcher was “dismissing his concerns” about a person being in the school. The human resources manager testified that the exchange troubled him because it revealed either that the applicant did not understand what he needed to do in these situations or he was lying about the situation in order to get the dispatcher in trouble.

21The applicant stated that the school had been “armed” when he attended it and he was right to be concerned about the presence of a person inside the building. It was his position that he had “disarmed” the school. The human resources manager testified that the log revealed that the alarm had been disarmed by the person in the building (a teacher) prior to the arrival of the applicant.

22Three days later, in the early morning hours of December 14, 2014, the applicant was involved in a car accident. He reported to the respondent – and testified before me – that he has been driving between 37-40 km per hour on a slippery road, rounding a curve, when his tire blew and he lost control of the car. The car wound up mounting the centre mediation, and breaking a road sign before coming to a stop. There was approximately $2,000 damage done to the vehicle. After changing the tire, he was able to drive the car back to the office.

23The human resources manager testified that he was suspicious about the applicant’s story when he saw the vehicle – in particular, the tire which the applicant had said had blown. He was of the view that the tire would have had an irregular and more extensive tear in it if it had blown. Instead he testified that it had a “v” cut in it, which he believed was consistent with it being damaged upon impact. He testified that he spoke with the mechanic at the shop where the car had been taken, who confirmed this suspicion about the tire, and who told him that the applicant could not have been going as slow as he said he was for the damage to have taken place. He further testified that he took it to a second shop on December 18, 2014, and the technician there verbally confirmed what the first technician had told him (although, not in writing until January 2015).

24The human resources manager’s concern was not that so much that the applicant had been negligent, but that he was lying about the cause of the accident. He met with Rose and Dave Catalano, and they agreed that in light of this, as well as the applicant’s history, they would have to fire the applicant.

25The applicant, who had been suspended following the accident, was called into a meeting at Gemstar on December 19, 2014, at which time his employment was terminated.

Analysis

26The applicant bears the onus of establishing discrimination on the balance of probabilities based on clear and cogent evidence. To do this, the applicant must show that he belongs to protected group, that he experienced adverse treatment and that the membership in the protected group (in this case his disability) was a factor in this adverse treatment.

27The respondent has accepted that the applicant has a disability, as that term is defined in the Code. There is also no dispute that the termination of the applicant’s job is adverse treatment. Thus, the sole dispute in this case is whether the applicant’s disability was a factor in the decision to terminate his job.

28The applicant argues that I can infer that his disability was a factor by virtue of the proximity between the his disclosure of disability (and accompanying request for accommodation) and the decision to fire him. He also argues that the respondent’s response to his request for accommodation also gives rise to the inference that the respondent’s were eager to bypass this process by simply eliminating his job.

29In final submissions, the applicant also suggests that I can infer from the timing that the respondent thought that the car accident would aggravate the applicant’s disability and increase his need for accommodation. This was not alleged in the Application or raised in the applicant’s evidence or cross-examination of the respondent’s witnesses. The applicant points to no evidence in support of this theory in his submissions. I need not consider this bald assertion.

30I would note further that the Application does not allege that the respondent’s failure to accommodate the applicant’s disability is an independent allegation of discrimination. In any event, I would not be able to make such a finding on the evidence before me.

31It is common ground between the parties that the applicant did not make the respondent aware of his disability before December 3, 2014. On that date, he did not provide the respondent with any medical reports, functional limitations analysis or demands for immediate action. The applicant’s request to be assigned a job that involved less driving was not entirely clear. How much driving was too much driving? He, after all, lived a significant distance from any of the respondent’s static sites and any accommodation would still involve, at minimum, a one-hour commute, each way, from his home (in optimal traffic).

32The applicant does not dispute the respondent’s evidence that he said he was fine continuing with his mobile job until a static job was found. Moreover, the applicant signalled to the respondent that his request to drive less was not really a priority when, in the second conversation with management, he opted to do his mobile job over the proposed static job at Swan Lake. In addition to the more than one-hour commute to Gemstar’s office, the applicant drove in excess of 150 km per shift for his mobile team lead job. Although the commute to his mobile job was shorter than the commute to Swan Lake, the overall amount of time spent in the car during the course of his mobile shift far exceeded the extra commuting time.

33In light of his choice to wait for a better static assignment, the lack of medical documentation and the applicant’s passive approach to requesting accommodation, the respondent cannot be faulted for believing that the applicant’s medical condition was not one upon which it had to take quick and decisive action. Its failure to remove the applicant from his mobile duties or find him a static job cannot be seen as evidence that it regarded his disability as a problem.

34That leaves the timing of the termination of the applicant’s job. I agree with the applicant’s position that the timing is sufficiently suspicious that there is an evidentiary burden on the respondent to provide a non-discriminatory explanation for its decision. That is, there is a burden on the respondent to establish a justification for its action that is not merely pretext.

35I accept the respondent’s position that its decision to terminate the applicant’s employment was the result of multiple actions by the applicant and not just the culminating incident. Although I have come to this conclusion, I accept that, logically, the incidents that preceded the applicant’s promotion in June 2014 (the disputes with other Gemstar employees and his parking infraction) cannot have been regarded by the respondent as particularly egregious.

36In coming to this conclusion I have not made findings with respect to whether the respondent’s conclusions about the factually disputed incidents are correct. In particular, I have not made findings about whether the applicant improperly took the bottle of drain cleaner, was correct about whether the school he attended was “armed” or not, or lied about the circumstances of his collision (that is, his speed, the road conditions and/or the blown tire). It is sufficient for me to find, as I do, that the evidence supports the respondent’s assertion that it was sincere in its belief that the applicant was in the wrong.

37Between the applicant’s disclosure of his disability and his job termination two intervening events occurred. I accept that the incident at the school led to questions about the applicant’s comprehension and/or his ability to get along with his co-workers, and the car accident raised significant alarm bells about his honesty in the minds of the respondent’s management team. Considered in conjunction with the applicant’s earlier history at Gemstar, the respondent has established that it sincerely believed that it could no longer rely on the applicant. That is, the respondent has established a non-discriminatory explanation for its decision to fire the applicant.

38In the final analysis, the applicant has failed to establish that the timing of his job termination or the respondent’s reaction to his request for workplace accommodation supports the inference of discrimination on the basis of disability. He relies on no other evidence and has, therefore, failed to establish on a balance of probabilities discrimination in employment contrary to the Code.

ORDER

39The Application is dismissed.