Assignment task:
INTRODUCTION [1] This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of ethnic origin. As all parties agreed at the outset of the hearing that the allegations were with respect to creed, the Application was heard on that basis. [2] The applicant commenced employment with the respondent on August 29, 2011, after an August 22, 2011 interview at which he was asked about his availability and was told that the respondent's business required weekend work. The applicant displayed hesitation about Sunday work because he is an evangelical Christian who is very involved in his church, including teaching Sunday school and working at the church's food bank on Wednesday evenings. He then agreed he could work one Sunday out of the month, and possibly two Sundays if it was an emergency. [3] The applicant alleges that the number of requests for Sunday work increased over the next three months, and that there were a few Wednesdays when work made him arrive late to the food bank. He advised by letter dated December 12, 2011 that he was requesting Sundays off due to his personal religious beliefs, and alleges that the respondent failed to accommodate his request, firing him on December 28, 2011. THE HEARING [4] The hearing took place on September 19, 2013. The applicant and two witnesses for the respondent, its account manager, Paul Hyde, and an employee, Teresa Nguyen, were examined and cross-examined. LEGAL PRINCIPLES [5] The relevant provisions of the Code are set out in part as follows: 5(1) Every person has a right to equal treatment with respect to employment without discrimination because of [...] creed. 2013 HRTO 1880 (CanLII) 4 5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of [...] creed. 9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. 11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. (2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. APPLICATION TO THE FACTS [6] There was much disagreement between the applicant and respondent about some of the facts in this case, and I had credibility issues with both the applicant and Mr. Hyde. A resolution of the factual differences in this matter is not central to my decision in this case because on the essential issues there was no disagreement. Where there was disagreement, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour 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 a witness in such a case must be its harmony with the preponderance of the probabilities which a 2013 HRTO 1880 (CanLII) 5 practical and informed person would readily recognize is reasonable in that place and in those conditions. [7] There was no disagreement that Mr. Hyde and the applicant discussed the applicant's religious beliefs in his interview, and that the applicant hesitated when asked if he could work Sundays, although he then agreed he could work one or two in a month. [8] There also was no disagreement that shortly after the applicant began working for the respondent, the hours he was expected to work increased. Ms. Nguyen said that although the applicant was interviewed and hired for a part-time position, the respondent quickly required him to work full-time hours. Then in mid-November or the beginning of December, one of the three workers who worked in that region left, which meant the applicant was expected to work more Sundays than before. [9] There was some disagreement in the oral evidence about how often the applicant actually was required to work on a Sunday. Specifically, the applicant testified that he worked only one Sunday in the first month, then every second Sunday in the second month, and then three Sundays in the third month, but his evidence was not consistent with his Application, in which he stated that a month did not go by when he had to work fewer than two Sundays in a month. He also testified that after the first month, he had to work 65 hours one week, which included a Sunday, but then on crossexamination he said he thought that was sometime in November, which was in his third month of employment, and was consistent with Ms. Nguyen's evidence [10] Finally, when the documentary evidence was shown to the applicant on crossexamination, he accepted it as being an accurate reflection of the Sundays he worked. His perception appeared to be that he was working more Sundays than the documentary evidence showed, but I find the documentary evidence to be reliable because it was made by the respondent at the time of scheduling to enable accurate pay, the applicant accepted it on cross-examination as accurate and it was consistent with Ms. Nguyen's evidence. 2013 HRTO 1880 (CanLII) 6 [11] I also accept, however, the applicant's evidence that it was becoming three Sundays a month that he was being asked to work, in light of Ms. Nguyen's evidence that one of three workers in the region had left and the hours of work for those remaining had increased. [12] The applicant testified also that he became disillusioned by the respondent in November when he had a flood in his home. His wife had called the respondent and asked them to get a message to him, which they failed to do. The employer also did not allow him to take the following day off to help deal with the flood at his home. The applicant said this was a "game-changing moment" for him because he felt that the employer was not working with him. He also felt that he was working too many hours in a week. [13] In December 2011, the applicant submitted a letter to his employer, originally dated December 9, 2011, and re-dated to December 12, 2011, asking for Sundays off because he is a born-again Christian and has taught Sunday school since 2004. He attached the "Retail Workers Guide to the Employment Standards Act" to his letter, indicating he had the right to decline Sunday work for reasons of religious belief as long as he gave the employer 48 hours' notice. It appears that the letter was re-dated because the applicant originally tried to hand it in to Ms. Nguyen, but was told he should give it to Mr. Hyde or his father because she had no authority. It appears he then redated the letter and handed it in on December 12, 2011, having been scheduled to work, and indeed working, on Sunday, December 11, 2011. [14] After receiving the applicant's letter, Mr. Hyde said he did not schedule the applicant for further Sunday work because he wanted to look into the information given to him by the applicant. When he did, he decided it did not apply to the respondent because it was not a retail operation. [15] Mr. Hyde said he then met with the applicant on December 22, 2011, to "write him up" for two incidents. He testified that he also addressed the applicant's letter in the meeting and told him that the Employment Standards Act information did not apply and 2013 HRTO 1880 (CanLII) 7 that the applicant would have to work Sundays. There was no disagreement among all three witnesses that the applicant was told that if he did not work Sundays, he would not be working there. Mr. Hyde said that he fired the applicant because he had been "written up" four times in four months, and he was disrespectful and confrontational in his meeting with him, but agreed that the applicant's refusal to work Sundays also was one of the reasons he fired the applicant. The applicant agreed that the two write ups and his request for Sundays off all were discussed at the meeting. [16] The fact that there were other reasons for the applicant's termination does not preclude a finding of discrimination. In Quattroci v. Boz Electric Supply, 2009 HRTO 1082, the Tribunal states: It is well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination. It is not necessary that discrimination be the sole or even the predominant reason for the termination: see, for example, Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 at para. 60; Dominion Management v. Velenosi, 1997 CanLII 14482 (ON C.A.) at para. 1; and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp., (1993), 16 O.R. (3d) 290 (Div. Ct.) at para. 11. [17] Mr. Hyde stated that if the applicant had not been confrontational and disrespectful, he may still be working at the respondent company, because the respondent has made accommodations for others' religious beliefs. He pointed out that he also is a Christian who was baptized four years ago and regularly attends church. Mr. Hyde said he did not intend to discriminate against the applicant because of his creed, but as indicated intention is not required. [18] Ms. Nguyen, who is an employee of the respondent who does the scheduling and who also shares an office with Mr. Hyde, testified that the applicant was not open to a discussion about how the respondent might accommodate his religion, evidence I do not accept. Mr. Hyde did not entertain a discussion about possible accommodation and in the meeting where the applicant was dismissed, he does not dispute that he told the applicant that if he was not going to work on Sundays then he would not be working 2013 HRTO 1880 (CanLII) 8 there, a fact that belies the assertion that there was an attempt to accommodate him. In fact, Mr. Hyde testified that he had no intention of firing the applicant in the meeting and that the meeting began as a meeting to write the applicant up for some work performance issues. Prior to that meeting, Mr. Hyde had at no time discussed with the applicant possible accommodation of his refusing to work on Sundays.
QUESTION:
Q1. Briefly explain the facts of the case. Be sure to include information that addresses the who, what, where, when.
Q2. Explain the difference between intentional and unintentional discrimination. Based on the details presented in the case, would this be considered intentional or unintentional discrimination? Explain your answer.
Q3. What is your opinion on the case study?
Q4. Define the phrase Duty to Accommodate. Provide 2 recommendations on how the Network Technical Services Inc., should have accommodated this employee.