Jones v. EJ Industries Limited, 2017 HRTO 1518

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dwayne Jones

Applicant

-and-

EJ Industries Limited

Respondent

DECISION

Adjudicator: Laurie Letheren Date: November 20, 2017 Citation: 2017 HRTO 1518 Indexed as: Jones v. EJ Industries Limited

APPEARANCES

Dwayne Jones, Applicant Self-represented

EJ Industries Limited, Respondent Everton Murdoch, Representative

Introduction

1This is an Application filed on April 1, 2015, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The applicant alleges that he experienced a breach of his Code rights when he was an employee of the respondent company the basis of his race, age and disability. He also alleges that he experienced reprisal.

2A hearing on the merits of the Application was held on September 19, 2017. During this hearing I heard evidence from the applicant; Everton Murdoch, the owner of the respondent company; and James Solomon, who was the applicant’s supervisor while he worked at the respondent company.

3For the following reasons I find that the Application is dismissed.

Allegations

4The applicant worked at the respondent company from August 6, 2013, to May 23, 2015, as a grinder. He alleges that he was treated adversely during his employment and at the time of his termination on the basis of his age, race and disability. He also alleges that he experienced reprisal when he told Mr. Murdoch that he was going to get a lawyer and his employment was terminated.

Disability

5The applicant testified that he was missing a lot of work days. He stated that his absences were because he was having a hard time breathing and he had to spit a lot. He alleged it was because of the poor ventilation at work. He stated that he was having a hard time getting up in the morning and he was very weak. He believed this started about November 2014.

6The respondent submits that it had a real concern about the applicant’s absenteeism and that he had been warned about this several times. Mr. Murdoch testified about the policy that was to be followed by employees who were going to be absent and the process the respondent has for tracking employees’ attendance. He testified that if an employee has an unplanned absence they are to notify their supervisor directly or leave a message with reception, who would pass on the information to the employee’s supervisor. He described the punch clock in the respondent facility where employees place their hand on the time clock and enter the employee code. This records the time the employee comes into and leaves work and these times are recorded by payroll through a computer log.

7The applicant’s attendance record was entered into evidence. This record showed that from August to December 2013, the applicant was absent seven full days and three half-days. It also showed that from January 2014 to April 15, 2014, the applicant was absent eleven and one-half days. The applicant agreed that this record was accurate. It was Mr. Murdoch’s evidence that the record does not reflect the number of times the applicant had been late to arrive at work.

8The applicant’s evidence was that he did not provide the respondent with any medical notes to support his absences. He stated that when he was suspended he decided he had to go to the doctor to show he was getting sick.

9He introduced a medical note into evidence that was dated May 22, 2014. The note states that he may have asthma and is undergoing testing. The note does not say anything about absences from work or accommodations required in the workplace.

10James Solomon, the applicant’s supervisor at the respondent company, testified that lateness and absences were a real problem with the applicant. He testified that several times the applicant did not attend at work and he did not advise Mr. Solomon or anyone else that he was going to be absent. Mr. Solomon’s evidence was that he had discussed the absence issue with the applicant several times and had given him warning letters, but the applicant never appeared overly concerned. The applicant testified that he had not advised his supervisors about his absences until he received a warning letter and after that he changed. Later he testified that after he received the warning letter on April 24, 2014, he did not have any absences.

11The warning letter dated April 24, 2014 was introduced into evidence. There was no dispute that the applicant had received the letter. The letter states that “In spite of repeated verbal warnings regarding your attendance, you have continued to be absent frequently. This year you have already taken 12 days off.” The letter warned that if attendance did not improve it would result in suspension or termination.

12On May 1, 2014, the applicant received a suspension letter. The letter states that it is further to the April 24, 2014 warning letter and that once again the applicant had violated attendance policies so he was being suspended for three days from April 29, 2014. When the applicant returned to work on May 2, 2014, he had a meeting with Mr. Everton. Both the applicant and Mr. Everton described the meeting as a positive one. Mr. Everton stated that he thought it was a good meeting and that he and the applicant got to know one another a little better. He stated that at the meeting they discussed the applicant’s attendance and the impact his absences had on the respondent’s business. He stated that during the meeting the applicant did promise that he would improve.

13The applicant wrote a letter to Mr. Everton on May 2, 2014, and it was introduced into evidence. In this letter, the applicant stated that in the future he would do his best to make a change. He expressed his appreciation to Mr. Everton for the meeting and indicated that he planned to meet Mr. Everton in the future to learn more from him. It was the applicant’s evidence that the reason he wrote this letter was that it was his way of voicing his gratitude to Mr. Everton for taking time to meet him. He wanted to show Mr. Everton that he would do better with his attendance and to let Mr. Everton know that he wanted to be an asset to his company.

14The applicant testified that he had difficulties breathing at work and had to spit up to about ten times per hour. He stated that he had seen others spitting in the garbage cans and he decided that is what he should do because he did not want to go to bathroom or leave his post. He testified that he had been warned by both his supervisors that he should not be spitting in the garbage cans at work. He stated that the supervisors had said that spitting in the garbage can was unhygienic and that he should go to the bathroom. He stated that he did not comply with the request made by his supervisors and that he told them he was going to spit in the garbage cans as he did not agree that this is unhealthy to spit in the garbage can. He testified that he did go to the washroom a couple of times but he did not stop spitting in the garbage cans. He testified that he recalled having a conversation with his supervisor about this on May 18 or 19, 2014.

15On May 20, 2014, the applicant received a suspension letter for wilful defiance of being informed not to spit in garbage cans. He was suspended until May 22, 2014.

16On May 22, 2014, the applicant had a meeting with Mr. Murdoch. It was the applicant’s evidence that during this meeting he showed Mr. Murdoch his doctor’s note about being tested for asthma. He testified that he told Mr. Murdoch that the work environment was not clean and that he believed it was making him sick. It was his evidence that Mr. Murdoch told him he did not look at the medical notes and told him he did not care about the doctor’s note and that he should get a lawyer. He testified that Mr. Murdoch yelled at him and talked down to him.

17It was Mr. Murdoch’s evidence that when he met with the applicant on May 22, 2014, his intention was to discuss how they could proceed as a follow-up to the applicant’s suspension. He testified that at the beginning of the meeting, there was no intention to terminate the applicant. He stated that the purpose of the meeting was to discuss the seriousness of the applicant’s absences and the suspension. He testified that he did not jump to conclusions and he had intended to give the applicant an opportunity to change the behaviour. He stated that he had reminded the applicant to wear his safety mask and other equipment when the applicant had discussed his health. Both Mr. Murdoch and Mr. Solomon testified that the applicant had never complained to them about any health issues he may have been experiencing prior to this May 22, 2014 meeting. The applicant did not dispute this evidence and he chose not to cross-examine Mr. Murdoch on his version of the events of the May 22, 2014 meeting.

18Mr. Murdoch testified that the meeting did not go well because he believed that applicant was falsely accusing him of not caring and was raising his voice despite being asked to lower the voice and perhaps take a walk out of the office and return. The applicant agreed that Mr. Murdoch had warned him that if he did not stop yelling, the meeting would end and it could result in his termination. Mr. Murdoch testified that he had asked the applicant about the spitting and the applicant told him that no one had warned him not to spit in the garbage bins and he knew that the applicant was not being truthful because he had been suspended for this spitting and not complying with the request.

19Mr. Murdoch testified that by the end of the meeting he decided to terminate the applicant as he felt the employment relationship could not continue because of the applicant’s lack of co-operation and poor attitude.

Race

20The applicant was asked what evidence he had to demonstrate that he had experienced discrimination on the basis of his race while employed at the respondent or when he was terminated. In response, he stated that he was the only black person working at the respondent at that time and others were not getting the same warnings or suspension letters and that he was treated differently when he was told he had a poor attitude and was irresponsible.

21When asked how he knew others were not being warned and penalized, the applicant stated that his father, who works for the respondent, told him that no one else had been suspended and that he had not seen the supervisors speak to anyone else in the way that they had spoken to him. The applicant agreed however that he was aware of another employee who had been disciplined and that he could not actually know if other employees had been warned or disciplined as he does not have access to all that information.

Age

22The applicant stated that due to his young age the respondent thought it could take advantage of him and take advantage of his lack of knowledge of his rights. He explained that they were taking advantage of him and treating him differently when he was given warnings and suspensions.

23He agreed that he did not have any evidence that others had not been given such warnings and penalties or any evidence to connect this alleged different treatment to his age.

Reprisal

24The applicant stated that he believes that Mr. Murdoch decided to terminate him when he told Mr. Murdoch that he was going to get a lawyer. When it was pointed out to him that he had testified that Mr. Murdoch had told him he should get a lawyer he stated that when Mr. Murdoch stated this to him he had replied that he will get a lawyer.

25He testified that he did not ever complain to anyone about his rights under the Code being violated prior to filing this Application.

Analysis and Decision

26The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities. He must demonstrate that it is more likely than not that the respondent’s actions in warning him and disciplining him and eventually terminating his employment amounted to an infringement of his Code rights. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at paragraph 46.

27In order to prove that he experienced discrimination, the applicant must show he experienced different and adverse treatment from the respondent with respect to his employment and that his disability, race or age was a factor in the treatment. Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para. 33.

28I have found that the applicant has not presented any evidence that could demonstrate that he had a disability while he was employed at the respondent. He did not call any doctor to verify the contents of his medical notes, so as I explained during the hearing these notes could not be given any weight. However, even if the notes were given weight, they do not demonstrate that the applicant had a disability. The May 22, 2014 note only states that the applicant may have asthma and is undergoing definitive testing. The applicant testified that he never got the results of the testing.

29The applicant presented no evidence to demonstrate that that his age or race was a factor in the warnings, discipline and termination by the respondent. He claimed that no one else was treated the way he was and that he was the youngest and the only black person employed. However, he did admit that he could not know if others were warned or disciplined. He presented no evidence that could support his claim that he was the only one spoken to and disciplined as he was and that this was linked to his age and race.

Reprisal

30Section 8 of the Code states:

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.

31The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31.

32I find that there is no evidence that could demonstrate that in firing the applicant, the respondent was intending to reprise against him for enforcing his rights under the Code. The applicant’s testimony was that he had not attempted to enforce his rights while he was employed at the respondent. It was his evidence that it was Mr. Murdoch who had suggested he get a lawyer and he had said he would. Stating that you are going to seek legal advice is not enforcing or attempting to enforce one’s rights under the Code. It was also the applicant’s evidence that Mr. Murdoch did not look at his medical documents he states that he had at the May 22, 2104 meeting. He had not previously asserted that he had a disability. As a result, I find there is no evidence to support a conclusion that in terminating the applicant, the respondent intended to reprise against him for asserting his rights as a person with a disability. On the other hand, I do accept Mr. Murdoch’s description of the meeting and the explanation of his reason for deciding to terminate the applicant as credible. He had met with the applicant following his earlier suspension and both the applicant and Mr. Murdoch’s evidence was that they had discussed how the applicant could improve and continue to work. I accept that Mr. Murdoch’s intention in meeting with the applicant on May 22, 2014 was similar and that he had no intention of terminating at that point. I accept his evidence that it was the applicant’s attitude and demeanour during that meeting that made him decide he could not continue to employ the applicant. The applicant’s description of the meeting was consistent with Mr. Murdoch’s evidence and he did not present any evidence to challenge Mr. Murdoch’s explanation of the reason for the termination.

Order

33This Application is dismissed.