Ontario Board of Inquiry
Allen McKee
Complainant
v.
Hayes-Dana Inc., R.O. Mossberger and Jack Yates
Respondents
January 27, 1986
April 22, 1992
Before:
M.R. Gorsky
Comm. Decision No.:
445
Appearances by:
Allen McKee, on his own behalf
G. Sanson, Counsel for the Commission
T.R. Hawkins, Counsel for the Respondent
AGE DISCRIMINATION — employment terminated for industrial foreman — DISCRIMINATION — job performance as reasonable cause for employment termination — REMEDIES — order to conduct retirement planning seminar
Summary: The Board of Inquiry finds that Allen McKee was discriminated against because of his age when his employment was terminated by Hayes-Dana Inc.
Mr. McKee worked for Hayes-Dana Inc. for over thirty-two years. He was a production operator for fifteen years and a foreman for seventeen years in the forge shop. In 1985 Hayes-Dana decided to reduce staff in the forge shop. On August 16, 1985, at age 57, Mr. McKee's employment was terminated. At the same time another foreman, age 56, was terminated, while two younger foremen were retained.
The Board of Inquiry rejects the respondent's argument that Mr. McKee was selected for termination because of inadequate job performance. From the evidence, the Board of Inquiry is satisfied that Mr. McKee was one of the best foremen in the forge shop. It finds that one of the reasons for terminating Mr. McKee's employment was his age.
The Board of Inquiry orders Hayes-Dana to compensate Allen McKee for lost wages and benefits from October 1, 1985 to the date of his sixty-fifth birthday. It also orders Hayes-Dana to pay Mr. McKee $1,500 as compensation for the injury to his dignity. Finally, it orders the respondent to conduct a yearly seminar on planning for retirement and early retirement.
Cases Cited
Holden v. Canadian National Railway (1990), 1990 CanLII 12529 (FCA), 14 C.H.R.R. D/12 (F.C.A.): 44
McKinney v. University of Guelph (1990), 1990 CanLII 60 (SCC), 13 C.H.R.R. D/171 (S.C.C.): 40
O.P.E.I.U., Local 267 v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd.Inq.): 46
Offierski v. Peterborough (County) Board of Education (1980), 1980 CanLII 3898 (ON HRT), 1 C.H.R.R. D/33 (Ont. Bd.Inq.): 4
Perrett v. Versa Services (1990), 1990 CanLII 12521 (BC HRT), 11 C.H.R.R. D/435 (B.C.H.R.C.): 46
Toronto (City) Board of Education v. Quereshi (No. 3) (1989), 1989 CanLII 9079 (ON HRT), 12 C.H.R.R. D/394 (Ont. Bd.Inq.): 4
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1981, c. 53
s. 4(6): 4
s. 23(b): 43
1By letter dated August 16, 1990, pursuant to s. 37(1) of the Human Rights Code, 1981, S.O. 1981, c. 53, as amended (the "Code"), I was appointed by the Minister of Citizenship as a board of inquiry to hear and decide the complaint of Allen McKee, filed with the Ontario Human Rights Commission, dated January 27, 1986. The complaint, made against Hayes-Dana Inc., R.O. Mossberger, and Jack Yates, alleged discrimination on basis of age in 1985.
2This matter consumed a good deal of time and energy involving a period of nine hearing days, ten witnesses, thirty-three exhibits, and 980 pages of transcript of evidence.
3The complainant, Allen McKee, had worked over thirty-two years for Hayes-Dana. He was a production operator for fifteen years and a foreman for seventeen years in the forge shop. On August 16, 1985, at age 57, his career with Hayes-Dana came to an end.
4For the complainant to be successful, the first requirement is that he must establish a prima facie case of discrimination on the basis of age. Upon establishing a prima facie case, the burden shifts to the employer to provide proof of a reasonable explanation. This might involve adducing evidence to show that the complainant was not as well qualified as the retained employees, i.e. that there is no discrimination on the factual evidence, or alternatively, that "age is a bona fide occupational qualification and requirement for the position or employment" (s. 4(6) of the Code), see Offierski v. Peterborough Board of Education (1980), 1980 CanLII 3898 (ON HRT), 1 C.H.R.R. D/33 (Cumming). However, " . . . the law is clear that discrimination will be established as long as one of the motivating factors . . ." for the employer's actions "was a prohibited ground of discrimination," see Quereshi v. Central High School of Commerce (1989), 1989 CanLII 9079 (ON HRT), 12 C.H.R.R. D/394 (Ratushny) at D/395. The Board in Quereshi also noted, at D/395–D/396, that the prohibited ground "need not be the only factor," and that [at para. 11]:
. . . in human rights cases the presence of such a motivating factor often will be inferred from circumstantial evidence, since the discrimination is seldom practised openly. Indeed, discrimination may occur in contravention of the Ontario Human Rights Code even where it is unintentional. In other words, even though those acting on behalf of the respondents may have been acting in good faith and without any ill will towards [the complainant], it is possible that a prohibited motivating factor was present in the decision [in that case] not to hire him. If it is a reasonable inference from the circumstances established by the evidence, a contravention of the Code will be established.
5In the case before me, it is necessary to examine the evidence to determine whether, on a balance of probabilities, it is a reasonable inference that Mr. McKee's age played a material role or affected the employer's decision to compel him to choose between an indefinite layoff and early retirement. (Cf. Quereshi, supra, at p. D/396, para. 12.)
6In responding to the complaint, the respondent employer indicated that four of the six points made therein appeared to be "generally accurate," but denied that Mr. McKee was "terminated effective immediately" and denied the allegation that there was "discrimination due to age." The respondent's explanation, in answer to Mr. McKee's complaint, follows:
The Forge Plant, where Mr. McKee was employed as a supervisor, had been impacted by economic downturn and a drastic reduction in business volume. To cope with this situation, management has been required over a period of time to lay off hourly rated people and to reduce staff.
During August 1985, Mr. McKee, among others, was interviewed by management and informed of the need for staff reduction. As there was no indication that business would return to higher volumes, it appeared the needed reduction in staff would be permanent. In view of this, Mr. McKee, as well as several other staff employees, was offered the options outlined below:
. . . He could be laid off and receive full salary and benefits for six months, and then receive the appropriate separation pay. If, during the six months lay-off, business resumed, (which was highly unlikely) Mr. McKee may have possibly returned to the workforce, or,
. . . He could retire and receive a pension which would have a special adjustment so that Mr. McKee would have no reduction due to early retirement.
Mr. McKee elected to take the special retirement arrangement.
He was not terminated, nor was there discrimination because of age. (Exhibit 9, p. 72)
7The forge shop had four production foremen on August 16, 1985. Two of them, Allen McKee and Cy Adams, lost their jobs that day.
On the same day, the production control group lost its only buyer/scheduler, Paul Liefl.
In February 1984 management employees had been augmented by the addition of a production foreman, Walt Eggleton.
In June 1985 [sic] only three management employees, McKee, Adams and Liefl lost their jobs; there was no other reduction in management staff. (Exhibit 16, p. 82).
Between January and February 1985, the number of production workers decreased from 114 to 86 (Exhibit 13), while two additional management employees were added: Gary Fife, tool room foreman, and Thomas Jackson, production control supervisor. (Exhibit 9, p. 89)
8Paul Matthew Liefl, called by the Commission, testified that he had worked for Hayes-Dana for thirty-seven years, and had spent the last ten years or so as a steel buyer. "The three of us were asked to retire," he said, but he wanted to know, " . . . under the new civil rights and all that, what if I didn't want to retire just yet? and Mr. Mossberger said words to the effect that ”˜it could get pretty messy.' " (March 21, 1991, transcript — p. 184) He reflected later on the fact that "there were three of us who got the axe, so to speak, we were senior men in the division . . . and probably the higher salaried ones so it occurred to me that's why we were the ones that got terminated and in that way they could affect a greater savings."
9Mr. Liefl testified that he was 61 years old at the time, and no other option was offered him. When he asked Mrs. Pat Reid, secretary of Hayes-Dana, what would happen if he didn't want to retire "at this time," she indicated "they could put me on permanent lay-off and also delay my pension until . . . I was 62."
Mr. Liefl further testified that performance evaluations usually took place in January, when each employee would be told about the evaluation, and the pay raise, if any, he was going to receive.
His evidence indicated that "we were always given to understand they would honour seniority if anyone was to be laid off, but in exceptional cases, when an employee was close to retirement age, he was given the option of retiring."
10Cyril Eugene Adams was a forge shop foreman for Hayes-Dana commencing in 1965. He was 56 years old when he got "the boot." He said "I know one guy that they wanted to retire and he didn't want to and he's still there . . . Ron Seburne." He added that another employee, Gord Lauder, received the same offer, refused it, but changed his mind a week later. (Exhibit 9, p. 85)
Mr. Adams testified that on two or three occasions during previous downturns, he was asked to take "an inverse seniority layoff so the junior people would stay and I turned them down." (July 25, 1991, p. 19)
11Brant Allen McKee, the complainant's eldest son, testified that his father cried when he related the episode concerning the meeting of August 16, 1985, and as time went by, his father became increasingly distressed and very emotional. Later, his personality changed: "He would pick an argument with you over nothing. It was very stressful on my mother . . . it was getting very hard to live with him. The testimony indicated that the complainant was obsessed with discussing the loss of his job and was "so distraught, so argumentative," that after three years "we had an agreement that we were not going to bring this up and we pretty well stuck to it because if he started talking about it I would get up and leave." (July 25, 1991, p. 46)
12The complainant, Allen Robert McKee, testified that he reported to Bob Makins for ten years prior to the recent change, after which he reported to Jack Yates or Marc de Montigny. His evidence concerning the events of August 16, 1985, indicated that it was a Friday, he was on holiday, and his wife received a call from someone at Hayes-Dana asking him to attend a meeting at 3:00 p.m. that afternoon. In addition to Mr. McKee, present at the meeting were, Messrs. Mossberger, Yates and Adams. He testified that the meeting took about twelve minutes during which he and Mr. Adams were told about a downturn in production, that things did not look good for the future and "that I didn't have a job and I could take my pension or six months' salary, and I didn't feel that we had an option at all." (July 25, 1991, p. 63) Mr. McKee and Mr. Adams were told to get their belongings and leave the plant immediately, and were also informed that they would never be employed by the Dana Corporation again. He had turned 57 the previous month, i.e. July 1985.
13There were no references to Mr. McKee's performance at the meeting. However, there had been performance evaluations in the past, and it was Mr. McKee's evidence that Mr. Makins and others had "some kind of a form" that they worked on, and his recollection was that the performance ratings were from one to ten. According to Mr. McKee, neither Mr. de Montigny nor Mr. Yates sat down to talk to him about his work performance.
14Mr. McKee went on to explain that in previous years, when there had been a downturn in business, he had been asked whether he wanted to go on a Management Income Protection Plan, which yielded about 85 percent of a salaried employee's income, and although he took advantage of the offer "to be outside in the fresh air and working in the woods," had he refused the offer, the employer would have "gone to the next senior supervisor and asked them."
15Mr. McKee gave evidence relating to his unsuccessful search for employment, and stated that a number of Hayes-Dana employees were able to secure employment at Welland Forge after the Hayes-Dana forge operation was closed at the end of January 1987, but no assistance was offered to him to get a job there. However, he stated that he earned about $3,000 during the summer of 1989 from odd jobs, sold company shares at a loss when he left its employ, lost money on the forty-acre "hobby" farm he owned, earned $6,739 at Canadian Sports and Fitness, and lost $12,300 in 1990 on the resort property purchased in 1989.
16John Wesley Yates became plant manager of the forge shop in June 1984. He reported to the general manager, Robert (Blackie) Mossberger.
His testimony described Dick Wolfenden as foreman of the die shop, Harvey Carpenter as foreman over the maintenance area, and Marc de Montigny as senior foreman to whom the four production foremen reported.
17The forging industry had been suffering from offshore competition prior to 1984, according to Mr. Yates. Italy, Spain and Brazil were mentioned as countries where forge operations were able to obtain work to the detriment of Hayes-Dana, and added that even smaller forge shops in the United States were making it difficult for the Hayes-Dana forge operation to survive. There were only two customers of the forge shop, the Dana Corporation, and Hayes-Dana, but they were buying forgings wherever they could get them cheaper. In addition, he testified, many products which once had been forged were now produced by casting operations because they were cheaper than forging, and a loss in forging business was the result.
18When Mr. Yates arrived at the forge plant, he put Bob Makins (the area manager) on special assignment at the frame plant, and split his previous job between Mr. de Montigny, who "took care" of production foremen and Geoff Crane, to "take care" [sic] of the production control portion. He went on to say that he introduced mini-computers in the production control area, and that eliminated the need for a steel buyer. After Mr. Liefl left, the remaining function, i.e. scheduling, was given to Geoff Crane. The supervisor there was Tom Jackson. According to Mr. Yates, the introduction of the computer made Mr. Liefl uncomfortable: "he was very reluctant to change" from a position of greater to lesser inventory. Generally, there was "more frequent change" in the forge shop, so Mr. Yates indicated that after discussing the matter with Mr. Mossberger, "we decided to have Mr. Liefl retire."
19With respect to the four production foremen, Mr. Yates indicated that he asked Mr. de Montigny "to grade his four production foremen . . . one, two, three, four and sit with me and go over them. Marc did that, I also did my own rating." Three topics were assessed: flexibility, ability to work with other people, ability to accept change and try things. He stated that Mr. McKee had difficulty in accepting change: there were problems concerning paperwork, and problems involved in welding dies at night, when welding was not wanted. Additionally, McKee was said to have had difficulty in accepting the statistical process control (SPC) program, or even understanding it. "He came to me and Gary Fife who was responsible for it. Gary worked extra to get him through it," and later, "the industry was just starting to use it again." (July 26, 1991, p. 82) Insofar as paperwork was involved, Mr. Yates indicated that there were problems with Mr. McKee's shift sheets, i.e. the next foreman would not have a proper record, by looking at the shift sheet, relating to what difficulties had been encountered on Mr. McKee's shift, or why a unit was down. He instructed Mr. de Montigny to tell Mr. McKee "why it had to be done, he had to do it, it was part of the job now." When asked whether that had any effect on Mr. McKee's performance," Mr. Yates replied that Mr. McKee would "be okay for a while" and then there would be problems again.
Another example of paperwork assessment, as related by Mr. Yates, concerned signing time cards in accordance with various rates of pay, depending upon types of work performed. Mr. McKee was said to have signed the cards late, when his memory of types of work done was not as fresh as at the end of a particular shift.
Mr. McKee was said to be inconsistent in charting mishaps on the safety chart, and had to be reminded of their importance. Mr. Yates said "he'd fall in line again" and then "he'd fall off."
In recording changes made to dies, Mr. Yates said that Mr. McKee was not always reliable. He received complaints from Wayne Stevens in the tool room and from Gary Fife.
More paperwork problems ascribed to Mr. McKee involved putting tags on the corners of trays, and marking them with the material and location where they were to go next in the forge shop. According to Mr. Yates, Mr. McKee would rectify his methods for a while, then fail to put the tags on. Mr. Yates personally observed charts not being filled out, time cards that had not been signed, and dies that had been welded.
20Mr. Yates testified that at the August 16 meeting, the foreman had been told that business was declining, that it was not expected to improve, and that they were the two production foremen that would be "cut." The rest of the conversation concerned an "early retirement package" and a six-month severance package.
21When the forge shop closed in January 1987, Mr. Yates decided to let Mr. Eggleton go, and transferred Mr. Barlow to the universal joint plant.
22In cross-examination, Mr. Yates agreed that the respondent's answer on the questionnaire was that Mr. McKee "may have possibly returned to the work force" was incorrect; that subject had not been discussed at the August meeting with Mr. McKee.
23Exhibit 24, a "Management Performance Rating Form" for Jim Dowd was shown to the witness, who declared that he had seen such forms previously but no written rating record was made to explain Mr. McKee's alleged deficiencies.
24Page 105 of Exhibit 9 was a note dated November 28, 1985, headed "Info from Blackie Mossberger" and initialed by Bud McLaughlin, then a vice-president of Hayes-Dana. Mr. Yates disagreed with the phrase found in Exhibit 9: "to keep people with career potential"; he indicated at the time he met with Mr. McLaughlin that he wanted to keep the best two foremen, "and that he was getting rid of . . . Cy and Al." (July 30, 1991, p. 188)
25Although Bob Makins' affidavit (Exhibit 12) indicates that Mr. McKee was "one of the top two foremen that I evaluated," Mr. Yates testified that he never checked with Mr. Makins to see how McKee was ranked. (July 30, 1991, p. 228)
26Jean-Marc de Montigny testified that he became senior foreman in the forge shop in 1985. At the time of the hearing, he was manager of a warehouse for the employer in St. Laurent, a suburb of Montreal. In recounting Mr. McKee's deficiencies, he mentioned the apparent inability of Mr. McKee to stop making die repairs on the afternoon shift, so that Mr. Stevenson, the tool and die maker, could supervise changes on the day shift. Mr. McKee, he said "didn't give a shit, he just went ahead and did it on the afternoon shift . . ."
He related the problem involved in completing time cards: "I found that Mr. McKee was just more or less signing the time cards to let them go." According to Mr. de Montigny, this contrasted with the practices employed by Mr. Eggleton who "used to have some good fights with the people."
Although his memory was not clear on the subject, Mr. de Montigny recalled that, insofar as safety charts were concerned, "Mr. McKee had a problem with that as well."
Additionally, Mr. de Montigny indicated that Mr. McKee neglected to affix tags to trays of forging, so that the tow motor driver would know "where to put that stuff."
Finally, Mr. de Montigny indicated that Mr. McKee would spend "all his time" looking after a unit that had a problem, so that the other six units under his supervision were "just on their own." According to Mr. de Montigny, that meant that eighteen employees — three per unit — were left unsupervised while Mr. McKee was attending to the "problem" unit. The other foremen spent all their time on the floor, but Mr. McKee was away "quite a bit and all his people were left alone." (Vol. 7, p. 103)
He also testified that Mr. Adams and Mr. McKee "had problems understanding the whole thing," with respect to statistical process control.
27When the forge shop closed in 1987, Mr. de Montigny, who had maintained "personal" files for the people he supervised, said he "threw them out," because he wasn't aware that Mr. McKee had commenced a court action against Hayes-Dana, or that a complaint had been filed with the Commission.
28Mr. de Montigny stated that: "We didn't have any criteria," in response to a question regarding criteria for choosing McKee and Adams for termination. "What we have is very simple: the time spent on the floor and how well do you know your job." (Vol. 7, p. 112)
29Mr. de Montigny said that he told Mr. Yates that he had records of performance for the foreman. In a statement made to the Commission in 1987, Mr. de Montigny said, in response to question 19 concerning which criteria were used in determining the salaried employees to be let go and which retained during times of economic downturn, "All I do know going back, it used to be by seniority . . . Today they might go by whatever type of job the guy is doing for you, never mind the seniority." (Exhibit 31)
30In reply, Mr. McKee denied that Mr. de Montigny had ever complained about his work performance "during the 6-week period of time that he was supposed to be our supervisor." He also denied ever being asked to stay behind after a shift to discuss his work. In addition, he denied ever going to Mr. de Montigny's office to discuss a problem; he denied receiving instructions not to make die repairs at any time during his employment at Hayes-Dana; he denied being spoken to by Mr. de Montigny abut a problem concerning time cards; he denied ever having a discussion with Mr. de Montigny, or anyone else, about safety charts; he denied being away "from the floor" more than other foremen, and explained that the eighteen employees left on the floor "were instructed, if they had a problem, to come and see me." (Vol. 7, p. 229)
31Mr. McKee testified that no one ever complained to him about the lack of production from his units, and added that insofar as putting tags on trays were concerned, nobody did that because the intense heat would simply burn up the tag, so the tags were left in the office for the foreman on the next shift to hang on the trays. Finally, Mr. McKee denied the notion that the statistical process control had been introduced in the forge shop; he said he attended some training sessions, but no system had ever been initiated; in any event, he had not discussed the matter with anyone, and Mr. de Montigny had never spoken to him about his performance.
32After reviewing the evidence, the Board has concluded that a prima facie case has been made out, chiefly on the basis of the following facts:
- The respondents have not taken issue with the complainant's statement in para. 2 of his complaint, which states:
During that time, I believe my work performance to have been satisfactory.
Mr. Mossberger did not take exception to that. (Vol. 7, p. 15) Throughout the proceedings, the respondents insisted, as they had in the fact-finding meeting, that "work performance was not an issue." (Exhibit 27)
Mr. McKee was rejected. On August 16, 1985, during a short meeting at the change of shift, an "exit interview" was conducted. Three management employees, including Mr. McKee, were informed, one by one, because of the deteriorating business conditions, there was no more work for them effective that day.
Mr. McKee was one of four foremen in the forge plant of Hayes-Dana. He was 57 years of age when his employment came to an end. Another foreman, who was 56, was also let go. The employer retained two of the four foremen, both younger than the two who were released.
From the evidence, I am satisfied that Mr. McKee was one of the best foremen in the forge shop according to his previous supervisor. It was evident that he was a devoted and valued employee who had performed without any complaint being directed to him during his service as a supervisor for the employer. I find that he was a thoroughly skilled forge shop supervisor who knew his job extremely well, and if changes were required of him to meet altered technologies, he would have complied without any problem.
33The respondents, once a prima facie case has been established, have the burden of providing proof of a reasonable explanation for their actions.
34What the Board heard by way of a "reasonable explanation" was that Mr. McKee was lacking in the following criteria:
problems doing some paperwork
problems with die repair
attitude toward making changes in general.
(July 30, 1991, p. 213)
These criteria were advanced by Mr. Jack Yates, who relied on Mr. de Montigny's assessment of the foremen, and repeated Mr. de Montigny's reasons as his own.
35In elaborating on Mr. McKee's deficiencies, Mr. de Montigny indicated that Mr. McKee "didn't give a shit" about instructions not to perform die repairs on the afternoon shift; did not obey orders about affixing routing tickets to the corners of trays; did not sign time cards in a conscientious manner; did not indicate the appropriate comments on the safety chart; and spent too much time away from "the floor" trying to repair broken down units. McKee denied these allegations; he also denied ever having been told about them by Mr. de Montigny.
36A previous supervisor in the forge plant, Mr. Robert Makins, was not transferred until May 1985. Mr. McKee left the plant on a three-week holiday at the end of July 1985. Evidence has been adduced that Mr. McKee and Mr. de Montigny worked on different shifts for 90 percent of the time. Since Mr. de Montigny acquired part of Mr. Makins' job, the Board prefers the testimony of Mr. McKee regarding the short period of time when Mr. de Montigny was known to be his supervisor. It does not seem likely that Mr. de Montigny was pointing out deficiencies to Mr. McKee while Mr. Makins was still there, because Mr. Makins thought very highly of Mr. McKee; and, after Mr. Makins left, Mr. de Montigny had comparatively few chances to observe Mr. McKee.
37The Board is not disposed to interpret the notion literally — as expressed by Mr. Yates and Mr. Mossberger — that they "judge people on the basis of what they do for me." (July 30, 1991, p. 299) The "people" did not work for individual managers — they worked for the company. It is therefore not unnatural to infer that a high rate of pay earned by an employee is an indication of satisfactory performance, deemed to be so by the company which pays him.
38A vice-president of the company. Mr. J.B. McLaughlin, made notes, on November 28, 1985, of "Blackie" Mossberger's conversation with him about Cy Adams and Al McKee. The notes are headed "Info from Blackie Mossberger" and the first paragraph states:
Talked to Cy Adams & Al McKee together — outlined forge circumstances — need to reduce people, hoped to keep people with career potential, considered possibility of Cy & Al retire in near future and if they are interested would discuss options.
(Exhibit 9, p. 105)
Although the suggestion was never made that the phrase "hoped to keep people with career potential" was taken verbatim, and the notion inherent in the phrase was denied by Mr. Mossberger, we prefer to accept the notation as an indication that the company intended to retain employees who were not on the verge of retirement, and who had many years of service left to perform. The phrase may be a euphemism; its meaning concerns age.
39Question 19 in a series of 24 questions put to Mr. de Montigny by an investigating officer of the Commission was:
Based on your experience with the company, what criteria are used in determining which salaried employees will be let go and which retained during times of economic downturn?
The answer was:
All I do know going back, it used to be by seniority . . . Today they might go by whatever type of job the guy is doing for you, never mind the seniority.
(Exhibit 31)
Mr. Yates testified that seniority had never been the policy of the company, whenever reduction in salaried staff was demanded.
40The rationale for letting Mr. McKee go rests on several matters previously referred to. The company has denied dissatisfaction with his performance. The respondents have indicated that when his deficiencies were brought to his attention, Mr. McKee corrected them for a short time, and then resumed his previous, erroneous methods. Instructions by Mr. de Montigny, for example, to stop repairing dies on the afternoon shift, seems sufficiently important to be ignored at one's peril, but there was no intimation of possible adverse consequences if change was not forthcoming. It may very well have been a group of complaints which reflected on performance, the company's declaration notwithstanding. The alternative may be attributable to the general relationship between advancing age and declining ability, which, so long as performance is satisfactory, indicates discrimination on the basis of age (McKinney v. University of Guelph(1990), 1990 CanLII 60 (SCC), 13 C.H.R.R. D/171).
41A retired employee, Bob Makins, indicated by affidavit that Bud McLaughlin had instructed him to keep written records of performance as a company practice. (Exhibit 12) This was the view, as well, of Mr. Mossberger who indicated that any written assessments or reviews with respect to Mr. McKee's employment would have been kept. These were his words:
Any of those that would've been written, certainly they were kept, yes.
(Exhibit 33, pp. 10–11)
42There were no such records available to the Board. Although Mr. de Montigny had maintained "personal" files, there was no documentary evidence of an unsigned time card, an erroneous safety chart, or a loose tag which had not been affixed to a tray. Mr. de Montigny had thrown his records out; Mr. Makins' records were lost or destroyed.
43The respondents have failed to provide a reasonable explanation for Mr. McKee's termination of employment, and have not invoked s. 23(b) of the Code as a defence.
44On the other hand, a prima facie case, based on the balance of probabilities, has been made out; that the discrimination was the basis for the employer's decision, if not the only basis; and that the complainant's acceptance of the enhanced pension was not relevant to the issue of discrimination (Holden v. CNR (1990), 1990 CanLII 12529 (FCA), 14 C.H.R.R. D/12). It may be that at the time when the decision was made to give Mr. McKee the option of being permanently laid off or accept enhanced early retirement, the respondents honestly believed that their decision was not based, in any way, on Mr. McKee's age. For the above reasons, I have found, on the balance of probabilities, that part of the motivation for choosing Mr. McKee as one [of] the foremen in the forge shop who would not be retained was his age.
45The Board makes the following order:
- It is ordered that the respondent, Hayes-Dana Inc., compensate the complainant, Allen McKee, for lost wages and benefits, from October 1, 1985, to the date of his sixty-fifth birthday.
46Mr. McKee was required to take reasonable steps to mitigate his damages. In Gohm v. Domtar Inc. (No. 4)(1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Pentney), the Board stated at p. D/180, para. 131:
I accept that in human rights law there is an onus on the complainant to mitigate her damages: Torres v. Royalty Kitchenware (1982), 3 C.H.R.R. D/8581; Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170. I find that the onus of proof in respect of an allegation for a failure to mitigate lies upon the respondents, as it does in other areas of the law: Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324.
In all of the circumstances, given the specialized kind of work performed by Mr. McKee for so many years, his age, the state of the depressed job market for a person with his special skills, I conclude that he took reasonable efforts to obtain comparable employment. (Cf. Gohm at pp. D/180–81, paras. 135 and 136, and Perrett v. Versa Services(1990), 1990 CanLII 12521 (BC HRT), 11 C.H.R.R. D/435 at D/438, para. 28.) In the latter case, the Tribunal quoted from Munana v. McMillan Bloedel, [1977] 2 A.C.W.S. 364 (B.C.S.C.):
Although the defendant in my view demonstrated that the plaintiff did not exercise reasonable diligence in searching for other employment in the industry, it did not prove that had he done so he could have procured such other employment. The evidence disclosed that during the relevant time the industry generally was suffering from severe financial depression . . . and it is most unlikely that the plaintiff could have secured similar or near similar employment by even the greatest of diligence in an effort to do so.
Even if it had been demonstrated that Mr. McKee had not exercised reasonable diligence in searching for other employment, I find that his situation would be covered by the quotation from the Munana case.
47I wish to afford the parties an opportunity to arrive at a mutually agreeable amount to be payable under the order for payment of lost wages and benefits. Should they be unable to do so, I will reconvene the hearing for the purpose of hearing submissions with respect to this matter, on the application of any of the parties affected by the order.
482. Given the extended time during which Mr. McKee has been unable to find an equivalent occupation, the humiliation of being rejected in the way he was after so many years of faithful and competent service, it is ordered that compensation in the amount of $1,500 be paid to Mr. McKee as a result of injury to dignity.
493. It is ordered that Hayes-Dana Inc. conduct a yearly seminar "Planning for Retirement," and that it also conduct an appropriate seminar prior to offering an early retirement program.