Randhawa v. Lido Industrial Products Ltd.
1985-05-28
Ontario Board of Inquiry
CHRR Doc. 85-074
Nirmal S. Randhawa Complainant
v.
Lido Industrial Products Ltd. and Wally Ondrey Respondents
Date of Decision: May 28, 1985
Place: Toronto, Ontario
Before: Frederick H. Zemans
Appearances by: John I. Laskin, Counsel for the Ontario Human Rights Commission and Nirmal S. Randhawa Stephen Thom, Counsel for Lido Industrial Products Ltd. and Wally Ondrey
RACE, COLOUR AND PLACE OF ORIGIN — employment layoff
Summary: The board of inquiry dismisses the complaint of Nirmal S. Randhawa alleging that he was laid off by his employer because of his East Indian origin.
Mr. Randhawa was an employee of Lido Industrial Products Ltd. for nine years. The company was owned by persons of Czechoslovakian origin and many employees were of East European ancestry. Mr. Randhawa was laid off while employees of East European ancestry who had only worked for the company for a few months were retained.
The board finds that Mr. Randhawa was not laid off because of his ancestry. The company was in financial trouble and chose to lay off employees who were receiving higher wages.
The board finds that as Lido Industries was not unionized, the employer was under no obligation to recognize seniority at the time of layoff. No breach of the Ontario Human Rights Code is found.
The complaint is dismissed.
1The complainant alleges that the respondent discriminated against him in June, 1982 at the time that he was laid off in his employment after having been employed by the respondent Lido Industrial Products for approximately nine years. The complainant who is of East Indian origin specifically alleged that the layoff of employees at the respondent Lido's premises in June, 1982 was a preferential layoff during which the corporate respondent showed a bias in favour of persons of Polish and Eastern European extraction. The complainant claimed that this preferential layoff amounted to discrimination pursuant to the provision of sections 4(1) and 8 of the Ontario Human Rights Code (1981). The complainant requested a finding of discrimination as well as damages in the amount of $20,000.00 calculated on the basis of the length of his employment with the corporate respondent and the time that he was out-of-work.
2The complainant Mr. Nirmal S. Randhawa alleged that he was discriminated against in his employment on the basis of race, colour, ancestry and place of origin, in violation of sections 4(1) and 8 of the Ontario Human Rights Code. Subsections 4(1)(b) and (g) of the Code state:
No person shall,
(b) dismiss or refuse to employ or to continue to employ any person;
(g) discriminate against any employee with regard to any term or condition of employment;
because of race, creed, colour, age, sex, marital status, ancestry or place of origin of such person or employee.
3Mr. Nirmal Randhawa is a forty-six year old married man who moved to Canada in 1972. Mr. Randhawa has a tenth-grade education which he received in India where he had worked as a farmer. He had lived in England for a short time before emigrating to Canada. He looked for work in Toronto after his arrival from England and obtained his first employment with Lido Industrial Products Ltd., the respondent in these proceedings.
4Mr. Randhawa testified that he was hired by Carl Menge, the plant manager in 1973, to work in the shipping department at the respondent's premises at 40 Queen Elizabeth Blvd., in the west end of Toronto. His responsibilities were to make up orders for the respondent's customers who manufactured and distributed garden hose, plastic pipe, garbage bags, and cups. The company's business fluctuated during the course of the year with its greatest volume being in the winter and spring months when they were shipping their summer products. The complainant generally worked a forty-eight-hour week, and in the winter he frequently was requested to work overtime on Saturday mornings for which he was paid time and one-half.
5The complainant testified that the workforce at the respondent's business was predominantly comprised of persons of Eastern European origin. The owners of the respondent corporation were originally from Czechoslovakia and had hired a large number of employees from Yugoslavia, Poland, the Ukraine and Czechoslovakia. At the time the complainant was hired there were five or six other employees from India working for Lido (Evidence p. 22).
6Mr. Randhawa worked at the respondent's premises in Toronto from 1973 until his layoff in 1982 except for two leaves-of-absence which he requested in order to return to the United Kingdom on one occasion, and to India on the second, the latter being to visit his family. Throughout this nine-year period he had never been laid off and had received regular increases in salary. Mr. Randhawa testified that he had at no time received any complaints about his work. Mr. Randhawa believed that he was doing a good job and that he was more productive than other employees in his department:
Q. Did you believe that you were doing a good job?
A. Yes, sir
Q. Yes?
A. I do more order than any other body.
Q. I am sorry?
A. I do more orders than any other body there, any other workers there. (Evidence pp. 26–27)
7Mr. Randhawa stated that the speed of his work could be verified from the landing bills. Throughout his employment with the respondent, Mr. Randhawa was supervised by Mr. Horvat, the foreman in the loading department. The complainant believed that he was well-regarded by his foreman as he was given the keys to the plant when Mr. Horvat was on holidays.
8In 1982, there were three persons other than Mr. Horvat in the shipping department, including Mr. Hopton Robinson, a black person from Jamaica, who had been hired subsequent to the complainant in 1973; the complainant; and two Polish men – Mr. Cebula and Mr. Tak who, by May 1982, had been with the respondents for three or four months. The complainant had the longest term of employment in the shipping department. On May 28, 1982, Mr. Randhawa was notified with his pay envelope that "due to shortage of work" he would be laid off on June 25, 1982. (Exhibit 1) The complainant was shocked and distressed by this notification for which he had not been prepared. He spoke to his foreman whom he requested to attempt to prevent his layoff. He also attempted to speak to one of the owners of the respondent – Mr. Wally Ondrey. Mr. Randhawa was unable to speak to Mr. Ondrey until his last day of employment when, he recalls, he was informed by Mr. Ondrey that he did nothing wrong. (Evidence p. 39) Mr. Randhawa stated that although he was laid off, the other employees in the shipping department remained with the respondent.
9Mr. Randhawa also recalls that he was told by Mr. Ondrey that Mr. Randhawa was telling other employees to go slowly. The complainant reiterated in cross-examination that he received no complaints about his work and was given no other reason for the dismissal. Mr. Randhawa also reiterated that he felt that he had been a good and hardworking employee who had always put himself out for the company and had never been given a satisfactory explanation for his layoff.
10During cross-examination, Mr. Randhawa indicated that it was his recollection that the workforce at the complainant's premises was approximately 130 to 140 persons of whom five or six were of East Indian origin at the time that he commenced working for the company in 1973. He testified further that there were several black persons working for the respondent as well. During the period from 1973 to 1982 there were eight or nine persons belonging to visible minorities working for Lido Industrial Products Ltd. The complainant did not recall any other minority group employees being laid off in May, 1982. (Evidence p. 59) Mr. Randhawa testified that several other employees who had been with the company for a long time were also laid off in May, 1982. He recalled that these employees were an Italian male and female. (Evidence p. 76)
11At the time of his termination, Mr. Randhawa was earning $7.45 per hour. Mr. Randhawa was never recalled to work by the respondents, although he believed that other persons were rehired by the respondent during the following winter. Mr. Randhawa laid a complaint with the Ontario Human Rights Commission on July 20, 1982, because he believed that he was never given a satisfactory explanation as to why he was laid off. (Evidence p. 47) Mr. Randhawa had considerable difficulty in obtaining alternative employment and spent each day searching for a job. Exhibit 4 is an eight-page handwritten listing of the various companies that the complainant approached about employment. The dates on which these applications were made or when Exhibit 4 was prepared is unclear. He ultimately obtained employment with Wilson Brass and Aluminum Foundries Ltd., at 205 Nantucket Blvd., Scarborough in August, 1983. His 1983 income tax return shows that he earned $4,123.60 from this employer. The complainant has been employed with Gamma Foundrey since April, 1984 where he is earning $8.00 per hour for a 42.5 hour week.
12Mrs. Kim Bernhardt testified for the complainant. Mrs. Bernhardt was employed as an investigator by the Ontario Human Rights Commission from November, 1978 until February, 1984. She testified that the attitude of the respondent had caused her some difficulty in attempting to investigate the complaint of Mr. Randhawa. She tendered as Exhibit 8 a list of current employees which was forwarded to her by the corporate respondent in response to the standard request by the commission for a list of employees and employees dismissed. (Evidence p. 105) Mrs. Bernhardt was not able to verify whether Exhibit 8 was accurate as she never received all the detailed information that she had requested from the respondents. She was not allowed to talk to many of the respondents' employees that she had requested to meet and to whom she had been referred by Mr. Don Liska. Although she was referred to the respondents' administrator – Mrs. Stasuik, who set up an appointment with Mrs. Bernhardt she ultimately refused to meet. Mrs. Stasuik informed her that Mr. Liska did not want Mrs. Bernhardt to interview people because he felt that it would "stir things up." (Evidence p. 108) During cross-examination, Mrs. Bernhardt stated that she was informed that Mr. Robinson did not wish to speak with her.
13Mrs. Bernhardt left her business cards with Mrs. Stasuik as well as a list of the employees with whom she wished to speak. She requested that the employees be informed that she wished to speak with them. She also asked Mrs. Stasuik to give her the names and addresses of these employees so that she could interview them individually away from the plant. She did not receive this list. (Evidence p. 109) Mrs. Bernhardt attempted to locate and contact employees through the telephone book. This method was unsuccessful as she could neither locate them nor find them at home.
14She was also concerned about the fact that of the eleven senior employees (those with three or more years seniority) who were laid off in May, 1982, none were Polish, yet 34% of all workers at the plant were Polish. She determined this fact by examining Exhibit 8 along with a list of persons who left Lido since January 1, 1982. This list was tendered as Exhibit 9. (Evidence p. 111)
15In October, 1982, a fact finding conference was held with both parties. Mrs. Bernhardt testified that as no satisfaction was achieved, she decided to continue her investigation by other means. In November, 1982, she wrote to Lido and asked for the addresses and telephone numbers of certain employees and also copies of "landing bills" – order forms which contained the initials of the worker in the shipping department who filled it. This method, Mrs. Bernhardt felt, would be a way of determining who was working in that department after May 1, 1982. (Evidence p. 117)
16Mrs. Bernhardt testified that she received neither the information regarding the addresses and telephone numbers of the workers nor the landing bills. She did however, through discussions with Mrs. Stasuik, Mr. Liska and Mr. Horvat learn that Mr. Horvat, Mr. Robinson and Mr. Wojciech Cebula were the only full-time employees in the shipping department in September or October, 1982. She determined that Mr. Stanislov Tak was laid off after the complainant. Mrs. Bernhardt ascertained that there were also other employees who worked in the shipping department on an ad-hoc or short-term basis, but Messrs. Horvat, Robinson and Cebula were the permanent staff complement.
17During cross-examination, Mrs. Bernhardt testified that she gave up attempting to obtain information from the respondent company because as she stated, "there was a roadblock." (Evidence p. 127) She also stated that the information she did receive – Exhibits 8 and 9 – contained inconsistencies. One example she gave was that ten to thirteen employees were not listed on either list. Mrs. Bernhardt did testify that she was aware that the respondent was in financial difficulties and in the midst of legal proceedings as of May, 1983. She acknowledged that she never wrote to the individuals she wished to interview or attempted to compel production of documents pursuant to s. 32 of the Ontario Human Rights Code. (Evidence pp. 137–139)
18Mr. Vince Horvat testified for the respondent. Mr. Horvat has worked at Lido for twenty-six years and was Mr. Randhawa's supervisor in the shipping department. He continues to be employed by the respondent company. Mr. Horvat testified that Mr. Randhawa was a "medium worker," which was the same phrase he used to describe the other workers in the department. (Evidence p. 175)
19Mr. Horvat testified that he was not involved in the decision to lay off Mr. Randhawa. He also stated that he was "surprised" to hear that he was being laid off as he had been there for almost ten years while the other workers who were not laid off were there for less than six months. When he was informed of the decision, Mr. Horvat testified that he went to Mr. Wally Ondrey and requested that Mr. Randhawa be kept on. Mr. Ondrey told him that he could not afford to keep Mr. Randhawa on and that he had to lay off those with the most seniority as they were the highest paid workers. (Evidence p. 175) Mr. Horvat also testified that no one replaced Mr. Randhawa and that by the end of 1982 there were only two persons left in the shipping department – himself and Mr. Robinson.
20Concerning the recalling policy, Mr. Horvat testified that the company had a policy of recalling laid off workers and that it happened "every year." (Evidence p. 167) He could not answer why Mr. Randhawa was not recalled. (Evidence p. 178)
21According to Mr. Horvat, there were no racial tensions in the shipping department or problems because of the fact that Mr. Randhawa was Asian. Mr. Randhawa was never teased or verbally abused or insulted about his colour. Mr. Horvat stated that there was never any tension because Mr. Randhawa was not Central European. (Evidence p. 177)
22One of four shareholders and the vice-president of Lido Industrial Products Ltd., Mr. Walter Ondrey, testified on his own behalf and on behalf of the respondent corporation.
23Mr. Ondrey testified that since 1975, the respondent company had experienced serious financial difficulties which it had been unable to overcome. Between October, 1980, and October, 1983, the company lost $2.9 million and it was expected to show a loss for the period from October, 1983, to the date of the hearing. The downturn in their business was attributable to the rise in petroleum costs after 1974.
24Mr. Ondrey testified that because of these serious economic losses, the company in the early part of 1982 decided to significantly further reduce its labour force to attempt to save the company from collapse. Prior to 1982, the workforce at Lido had already dropped from a maximum of 280 in 1974 to a peak of 140 factory employees in the early 1980s. (Evidence pp. 181–182) In May, 1982, 60 workers, including Mr. Randhawa were given layoff notices.
25Mr. Ondrey testified that this decision was made solely by himself, the other family shareholders and Mr. Karl Menge, the plant manager and head of the personnel department. The goal was to attempt to reduce the company's labour costs for the January-July period from $45,000.00-$47,000.00 per week to $25,000.00 or less. (Evidence p. 183)
26One means the respondents employed was to lay off senior employees (those with the company three years or longer), as those workers were earning almost $2.50 an hour more than other workers. Thus, according to Mr. Ondrey the company ignored seniority to attempt to save $6,000.06 per employee or $250,000.00 per annum.
Q. And was that consideration, or a different consideration, made with respect to any layoffs in the shipping department?
A. Yes, it applied to all departments. And regardless of seniority, or anything else, we were looking at only one thing – the economics, and the survival. (Evidence p. 185)
The list of those employees laid off on, June 1, 1982, was tendered as Exhibit 13. (Evidence p. 185)
27Mr. Ondrey also testified that the company's financial state was so severe that they decided to attempt to sell off the company's assets. In 1983, the corporate respondent had filed a proposal under the Bankruptcy Act. This proposal to secured, preferred and non-secured creditors, which provided a payment of twenty-five cents on the dollar to non-secured creditors, was accepted in August, 1983. The company, Mr. Ondrey testified, has sold most of its assets during 1983 and 1984 except for two machines with which it has maintained production – one machine producing plastic pipes and one producing clothes lines and cups. These machines also were for sale. The effect of the sale of machinery and property has been the reduction of factory staff to 28 workers. (Evidence pp. 193–194)
28Concerning the decision to lay off Mr. Randhawa, Mr. Ondrey testified that there were two reasons: 1) he was not satisfied with Mr. Randhawa's work; 2) the company needed to lay off some of its higher-paid employees in order to save money. Mr. Ondrey testified that he told this to Mr. Randhawa on June 1, 1982, the last day Mr. Randhawa worked for the respondent company.
Q. Do you remember when it was, and where it was, you discussed the layoff with Mr. Randhawa?
A. Yes. Some time later I met with him in the shipping area department, and he asked me why he was being laid off, and whether it was something that we were dissatisfied with with his work, and I advised him that I was indeed not satisfied with work, his performance I had seen in an operation personally and I was not satisfied with what I saw, but more than that I informed him that it was a case of economics, that the company was in trouble and that we were laying off higher priced people where the work could be done by lower priced people.
Q. And what if anything, did Mr. Randhawa say to you in reply to those two statements?
A. Well, he simply said that he did not agree with my assessment, and I reiterated that when the company was in the position that it was in, all departments had received notices to say that if they wanted to survive, and that everybody would have to do a little more. Many departments did, and he was one of the ones who did not, and I believe this stemmed from the fact that he was requesting a raise and he did not get it because there was no money to give raises for, and therefore he went on his own personal slowdown. (Evidence pp. 188–189)
29During cross-examination, Mr. Ondrey testified that the decision to lay off senior employees was never written down nor discussed with anyone other than the directors and shareholders. Those workers that were laid off were simply told that there was a shortage of work. He believed that the employees knew of the economic pressures the company was facing as they were told that there would be no money for raises.
30While Mr. Ondrey did not have the payroll records with him at the hearing to verify his recollection, he testified that he knew that Mr. Randhawa was paid a higher wage than either Mr. Cebula or Mr. Tak of the shipping department.
31He also testified that while he maintained that the other reason for Mr. Randhawa's dismissal was that his work record was poor, this was not stated in the record of employment form completed for the Ministry of Employment and Immigration, nor in the letter Mr. Liska wrote on behalf of the corporate respondent to the human rights commission, nor in the company's written response to the commission's questionnaire nor in Mr. Randhawa's personal file maintained by the respondent company. (Evidence pp. 217, 220, 221 and 223) Furthermore, Mr. Ondrey testified that he did not know whether Mr. Liska raised the cost factor as the basis of the decision to lay off senior employees as a reason for laying off Mr. Randhawa at the fact finding conference.
Q. And I suggest to you that he never raised this financial issue that you have now raised?
A. Well, I don't know whether Mr. Liska was aware of it, or not, however, he may have been and did not raise it. We gave proper notices to people, and we are not a union shop, and we have to do things where seniority is not a factor. We had to retain people that were best for the survival of Lido. I did it then, and I would do the same thing today. My first priority is the survival of the company, or we all go down the drain, together. (Evidence pp. 225–226)
32Mr. Ondrey testified that the respondent company felt that it was sufficient to state that Mr. Randhawa was laid off due to a shortage of work. He also indicated that his company had been approached by the federal government to hire Czechoslovakians in 1968 and Polish émigrés in later years.
33Mrs. Bernhardt testified that, while the respondent company's representatives did state that Mr. Randhawa's work performance was a reason for his dismissal, they said nothing about his receiving higher wages being a factor. She stated that it was only during this hearing that she first heard of this reason for dismissal. She further stated that when Mrs. Stasuik told her what was in Mr. Randhawa's personal file she did not mention it containing anything about his having a poor work record. (Evidence p. 235)
34Mr. Laskin stated in argument that the key question in this hearing was why was Mr. Randhawa laid off rather than the two Polish employees who had much less seniority in the shipping department. Mr. Laskin maintained that the fact the other employees were Polish was a factor. He went on to argue that the reasons given by the respondent company – Mr. Randhawa's poor work record and the desire of the company to save money by laying off senior employees – did not hold up to scrutiny.
35Concerning Mr. Randhawa's work history, Mr. Laskin pointed out that Mr. Horvat, Mr. Randhawa's supervisor, was satisfied with the work that Mr. Randhawa performed and that Mr. Horvat had stated that Mr. Randhawa's work was no worse than anyone else's. Mr. Laskin also pointed out that the company had not indicated its dissatisfaction with Mr. Randhawa's performance in any of the documents it completed in Mr. Randhawa's file. Therefore, Mr. Laskin argued, this reason must be rejected.
36Concerning the second reason – the decision to lay off senior employees in order to save money – Mr. Laskin also questioned its validity. He stated that there were no records to prove this policy existed nor was this policy ever articulated on paper. Furthermore, he argued, there were no senior employees of Polish descent laid off. He argued that this issue was also presented for the first time at this board of inquiry.
37Mr. Laskin maintained that the company's lack of cooperation in this investigation must be taken into account. The company did not cooperate with Mrs. Bernhardt and failed to produce the documents and people she requested. Mr. Laskin argued that the evidence may be interpreted to indicate a preference against Mr. Randhawa and for workers of Polish descent. The commission's position is that when it came to a choice, the company chose to keep Polish or Eastern Europeans rather than Mr. Randhawa, as there was a predominance of people with Polish and Eastern European backgrounds in the management and as employees in the company as a whole.
38He also maintained that while statistics are not valuable in this investigation for various reasons – the sample being too small and no statistical analysis or Confidence Interval Testing being done – it is possible to infer from the company's statistics that the company held a strong preference to retain Eastern Europeans. Mr. Laskin continued that the statistics were of limited value. He argued that the real issue in this hearing was whether the complainant has been treated fairly within the context of the shipping department.
39Mr. Thom for the corporate and individual respondents argued that Mr. Randhawa was never, in his over nine years of employment a victim of racist verbal or physical abuse and that he had even been given two leaves of absence of two-three months length and was given his job upon his return. Therefore, he argued, the issue at hand was whether or not s. 4 of the Ontario Human Rights Code was violated when Mr. Randhawa was laid off.
40Mr. Thom presented a summary of the evidence that was tendered in Exhibits 8, 9 and 13, concerning the labour force for the respondent company. Before presenting this summary, Mr. Thom argued, as Mr. Laskin did, that the statistics should not be given too much weight in this case. He did argue however, that the evidence available indicated that there was no racial discrimination involved in the dismissal of Mr. Randhawa.
41Mr. Thom stated that the evidence presented indicated that:
Of the forty-four Poles who were employed by the respondent company, in 1982, thirty were laid off. Thus, while Poles constituted 34% of the workforce at Lido, 50% of those laid off were Poles;
Of eleven visible minority employees (employees who were East Indian or black), two were fired and three laid off while six were retained by the company;
Of the ten senior or more experienced employees who were laid off, four were of Eastern European descent. Two were Italian, one was Portuguese, one English, with the final other two being Mr. Randhawa and one other East Indian. Furthermore, two of those four East Europeans had more seniority than Mr. Randhawa. (Evidence pp. 256–259)
42Mr. Thom further stated that the reason why senior employees were dismissed was to reduce the company's labour costs to $25,000.00 for the January-July period. The company decided to dismiss those senior employees who were not crucial but rather, who were doing work that could be done by less senior and thus, lower paid employees. (Evidence p. 259)
43Mr. Thom also pointed out that one East Indian with seniority – Mr. Prem Singh – was retained by the company after the May 1, 1982, layoff, and that furthermore, there was not a higher proportion of non-whites laid off: non-whites represented 8% of the workforce both before and after the layoff. (Evidence p. 268) Mr. Thom concluded that Mr. Randhawa's dismissal was based purely on economic grounds and that there was no evidence of racial discrimination.
44In considering the above evidence, the question to be addressed is did the respondents, Lido Industrial Products Ltd. and Mr. Walter Ondrey, discriminate against the complainant, Mr. Nirmal Randhawa, when he was dismissed in May, 1982. The complainant alleges that the layoff was a preferential layoff in that the respondent company acted in favour of persons of Polish and Eastern European extraction and discriminated against those who were not. If so, then it is alleged that the respondents acted in violation of ss. 4(1) and 8 of the Ontario Human Rights Code (1981).
45The test generally used in determining whether discrimination has been a factor is found in the leading case of Regina v. Bushnell Communications Ltd., et al. (1974), 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288. In that case the accused corporation was charged under s. 110(3) of the Canada Labour Code, R.S.C. 1970 c. L-1 which made it an offence to "refuse ... to continue to employ any person ... because the person is a member of a trade union." The Court of Appeal stated (at p. 290), that "... union membership must be a proximate cause for dismissal, but it may be present with other proximate causes."
46The issue for me to determine is whether racial discrimination was a proximate cause or factor in the dismissal of Mr. Randhawa. Thus, it does not have to be the sole factor involved in the dismissal but it nonetheless must be a factor in the respondents' decision to lay off the complainant.
47There is evidence that the management and workforce of the respondent company consisted of predominantly persons with an Eastern European background. The owners were originally from Czechoslovakia and had hired a large number of employees from Poland, Czechoslovakia, Yugoslavia and the Ukraine. In fact, in May, 1982, 34% of the workforce was from Poland alone.
48This alone, however, is insufficient proof that racial discrimination was a factor in either the employment or layoff policies of the respondent corporation.
49The respondent company, through the testimony of Mr. Walter Ondrey, maintained that there were two reasons why the complainant was laid off: 1) his work performance was poor; and 2) he was let go, along with other senior employees, rather than workers with less seniority in the company, to reduce labour costs.
50I am not convinced by the evidence that Mr. Randhawa was dismissed because of his work performance. It is clear that while the company had many previous opportunities to state this as a reason for dismissal, it did not. It was not written into the dismissal papers as required by the Ministry of Employment and Immigration, nor was it stated in letters to the human rights commission by Mr. Liska or the company's written response to the commission's questionnaire. Furthermore, in his nine years of employment, Mr. Randhawa was never disciplined, reprimanded or criticized for his work performance. In fact, the person who would be the one most knowledgeable of Randhawa's performance, Mr. Horvat, his supervisor, was generally satisfied with Mr. Randhawa's work and testified that he requested Mr. Ondrey not to dismiss Mr. Randhawa.
51Mr. Randhawa's work performance may not have been a factor, however, the evidence does lead me to conclude that clearly economics were a factor, and probably the only factor which led to the dismissal of Mr. Randhawa as well as sixty other employees in May, 1982. There is simply no convincing evidence to lead to the conclusion that any issue including social origin was a factor in the layoff of May, 1982.
52First of all, the company was in serious financial difficulties. The company lost $1.8 million between 1980 and 1982 and in fact went into receivership in April, 1983. Mr. Randhawa was part of a large layoff in which sixty workers in total were dismissed. Furthermore, thirty of those sixty, or 50% were of Polish extraction, while 34% of the total workforce was Polish. There were workers who were not Eastern European who were kept on after the layoff; for example Mr. Prem Singh. The percentage of the workforce that was non-white did not decrease as a result of the layoff, with the total percentage remaining at 8%. Finally, of the ten senior employees who were let go in May, 1982, four of them, or 40%, were Eastern European and only two were Asian or black.
53It is accepted that Mr. Randhawa was dismissed for economic reasons while two new, inexperienced employees – Mr. Cebula and Mr. Tak were kept on. While he had been an employee for over nine years, his responsibilities were such that they could be exercised adequately by an employee of five or six months. An employer who wishes to ignore seniority as a basic right of workers is not prevented from doing so by the provisions of the Ontario Human Rights Code. As the respondent company was non-unionized, Mr. Randhawa does not have the protection of a collective agreement. Thus, while the actions of the respondent company may have been anti-labour, they do not violate the Ontario Human Rights Code.
54In short, the answer to the question: was Nirmal Randhawa discriminated against in his dismissal in 1982 by Lido Industrial Products Ltd. and Mr. Walter Ondrey, must be answered in the negative. The complaint is therefore dismissed.