Human Rights Office

Human Rights Office
Human Rights Office

CW v. Ed Bulley Ventures Ltd. (c.o.b. Woodlands Inn and Suites Hotel)

Summary

Mr. Winkelmeyer testified that he has Cerebral Palsy. He said the disability affects his mobility, his hand-eye coordination and his fine motor skills. He applied for a Room Attendant position at the Woodlands Inn on June 3, 2010, by faxing his résumé to the Employer.

On June 17, 2010, he received a phone call from Annetta Young, the Housekeeping Manager, following up on his application. During that conversation, Mr. Winkelmeyer explained his previous work experience. He stated that he believed that experience would make him an asset in the position he sought, and to that point in the conversation, things went well. He then communicated to Ms. Young that he required the assistance of a cane for mobility. He testified that the tone of the conversation immediately shifted from positive to stiff, and he was asked whether he was physically able to carry out the job because of a certain number of rooms needed to be completed during the day.

Mr. Winkelmeyer then described how he had done similar work at UNBC by finding different ways to cope with the duties, and he offered to attend at the hotel to showcase his abilities. Ms. Young said she had to talk to the Hotel Manager and that she would call him back. Mr. Winkelmeyer then requested her to call him back to his cell phone number rather than his home number because his home phone had no answering machine and he was often not there to answer.

Ms. Young assured him that she would make a note of his cell phone number and contact him on that number within a day or two. He did not receive a callback, nor an email, from Ms. Young at any time. He also noted that the Woodlands Inn. Still had similar positions available online.

Combining the knowledge that there were some jobs at the Woodlands Inn, including the Room Attendant position that he applied for and that he received no callback, he concluded that he was being discriminated against due to his disability. He filed his complaint with the Tribunal on June 22, 2010.

Mr. Winkelmeyer testified that he first felt discriminated against in the June 17th telephone conversation. The change in the tone of the conversation as soon as he mentioned his disability put him on alert and the suspicion was confirmed for him when he did not receive a call back from Ms. Young within several days.

Mr. Winkelmeyer’s Telus cell phone statement for June demonstrates that no incoming phone calls were made from Fort Nelson to that number on June 21, 2010. Mr. Winkelmeyer also testified that there is no record of a phone call to his home phone from the hotel on that date.

On the other hand, Ms. Young testified that she did write down Mr. Winkelmeyer’s cellphone number on his resume. After the phone interview, she spoke to Mr. Moore, her General Manager, and was told to bring Mr. Winkelmeyer in for a face-to-face meeting. On June 21, Ms. Young stated that she called Mr. Winkelmeyer back on his home phone, but he did not answer. She testified that she called his home number a second time, and once again, there was no answer. She neither called the cell phone number nor tried to email him, even though she had his resume with her notes in front of her during both calling attempts.

She also said that the duties of a room attendant involve cleaning mirrors that are very high and need to be reached by stools, and that she had concerns whether Mr. Winkelmeyer could have carried out those tasks. She further testified that she did not intentionally fail to call Mr. Winkelmeyer in for an interview because of his crutch but because she simply got busy.
 

Questions to be Determined and Findings

Has Mr. Winkelmeyer established a prima facie case of discrimination on the basis of physical disability? (YES)

Has the respondent established a defence? (NO)
 

Reasoning

1. The Tribunal applied a credibility analysis on both witnesses and concluded that Mr. Winkelmeyer and Mr. Moore were credible witnesses, while Ms. Young was presented as a sincere witness, her evidence was not inherently believable.

Ms. Young made a note in bold print on Mr. Winkelmeyer’s covering letter during the initial conversation of June 17, 2010, which read:

250-1-961-1563

Works with a crutch

I talked to Conan told him I would call him back

That note is prominently displayed on the top of the covering letter, occupying virtually the top quarter of the right side it. That note referenced only the cell number and lends credibility to Mr. Winkelmeyer’s testimony that he informed Ms. Young, during their conversation, that she should call him back only on his cell number. (p. 56, 57)

To establish a prima facie case, Mr. Winkelmeyer must demonstrate that he was a member of a protected group (in this case defined by physical disability), that he suffered adverse treatment regarding employment, and that it is reasonable to infer from the evidence that his physical disability was a factor in the adverse treatment.

In this case, Mr. Winkelmeyer gave evidence that he has Cerebral Palsy and that it affects his mobility and motor skills; and he was denied an employment interview and therefore an opportunity for summer employment. Further, the Tribunal found that:

Ms. Young’s failure to contact Mr. Winkelmeyer and invite him for an interview was precipitated by her concerns regarding his ability to carry out the duties due to his disability. I conclude that Mr. Winkelmeyer’s disability was at least a factor in his denial of an employment interview. (p. 68, 69)

2. The Employer did not present sufficient evidence to establish a bona fide and reasonable occupational requirement under s. 13 of the Code. The employer’s actions were not justified.
 

Remedy

The denial to Mr. Winkelmeyer of the opportunity to work for the Employer has negatively impacted him emotionally. He was also unemployed from July 20, 2010, until he started school in late August 2011.

The Tribunal awarded Mr. Winkelmeyer $5,000 for damages and $1,706.25 in wage loss.