Bailey v. AAON Canada, 2009 HRTO 1382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Noel Bailey

Applicant

• and-

AAON Canada Inc. and Robert Hanna

Respondents

case Resolution Conference DECISION

Adjudicator: Keith Brennenstuhl

Date: September 1, 2009

Citation: 2009 HRTO 1382

Indexed as: Bailey v. AAON Canada

AppearanceS BY

Noel Bailey, Applicant ) Glen Morrison, ) Representative

AAON Canada Inc. and Robert Hanna, ) David I. Wakely, Respondents ) Counsel )

1This is an Application filed December 8, 2008 under section 53(3) of the Human Rights Code, R.S.O, c. H. 19 as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on May 6, 2008 and abandoned upon the filing of this Application with the Tribunal. The applicant claims that he has suffered discrimination in the areas of employment and vocational associations on the basis of race, place of origin and colour. He self-identifies as a black man of Caribbean origin.

2The Case Resolution Conference was held on July 28, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner.

3Evidence and submissions on remedy were reserved until my decision on the merits was issued.

BACKGROUND

4The corporate respondent (“AAON”) is a manufacturer of custom heating and cooling systems. It is a division of AAON Inc., whose head office is located in the United States. The personal respondent, Robert Hanna, was at all material times employed by AAON as its General Manager. The applicant was at all material times employed by AAON as a brazer, a specialized welder.

5The applicant commenced employment with Air Wise Inc. (“Air Wise”) in December 1997. Air Wise was also in the business of manufacturing heating and cooling systems. In 2003, Air Wise went into receivership and in January 2004 the applicant’s employment with Air Wise was terminated. AAON purchased the assets of Air Wise and in February 2007 AAON hired the majority of Air Wise’s former employees including the applicant.

6Since the purchase of Air Wise’s assets, AAON struggled to reach profitability. In the second half of 2007, incoming orders dropped dramatically and with that the volume of work. AAON stopped hiring new employees and began to reduce its workforce. Overall the workforce was reduced from 155 employees in May 2007 to 103 employees in December 2007. Today AAON has 30 employees. The business is expected to close down completely in the next month.

7In November, 2007, the applicant was terminated without cause. He does not take exception to the severance pay and the pay in lieu of notice which he received on termination. The applicant appears to be satisfied with the job that his union found him within 15 days after his termination. His complaint centres on his belief that AAON’s decision to terminate him at the time that it did was based on his colour and place of origin. According to the applicant, his work team was comprised of five men, each of whom had less seniority than the applicant. The applicant argues that by virtue of his seniority he should not have been the first member of his team to be terminated. He claims that he was targeted for termination because he is a black man from the Caribbean, the only black man on his team. In addition the applicant believes that his union activity was an additional factor in the decision to terminate him.

DECISION

8The Application is dismissed.

ANALYSIS

9The applicant was unable to provide any direct evidence that he was terminated because of his colour and place of origin. I appreciate that discriminatory actions are, by their very nature, actions which are often incapable of direct proof and that it often becomes necessary to infer discrimination from the conduct of the individual or individuals whose conduct is in issue.

10The applicant invites me to infer discrimination on the basis that, given he was the senior member of his team, there could be no other explanation for his termination at the time other than his colour and place of origin. In my view, however, the evidence does not justify this inference.

11The applicant was one of over 50 people who were terminated in 2007 as AAON downsized due to lack of work. In the months leading up to the applicant’s termination, one third of the workforce had been dismissed. The applicant acknowledged that before his termination “a lot of people were laid off.” Terminations continued following the applicant’s departure from AAON.

12The applicant relies heavily on his claim that he had the most seniority of the men on his team and therefore should not have been the first team member to be terminated. It is not clear, however, that the applicant did have the most seniority on his team. The applicant calculates his seniority from the point in time that he started to work at Air Wise in 1997. It is clear though that Air Wise let him go in 2004 and that AAON, shortly thereafter hired the applicant together with the majority of Air Wise’s employees. From AAON’s perspective, all employee seniority should be calculated from the date that AAON hired them, in which case, the applicant did not have any greater seniority.

13However, even if the applicant’s seniority was established, in the absence of an agreement between the union and the employer or some other clear understanding, neither of which has been alleged by the applicant, I am of the view that seniority does not have to be a determinative factor when employees are being terminated in a downsizing such as AAON’s and that other work related factors may be taken into consideration.

14According to Ed Johnson, Manger of Manufacturing and Quality for AAON in the United States and who worked closely with the management of AAON in Canada, the decision to terminate an employee at AAON was taken at the head office in Tulsa by a committee composed of himself and five others including the president, after considering an employee’s skills, abilities, qualifications, past performance, attitude and length of service.

15According to Mr. Johnson, employees including the applicant, were not selected for termination based on colour or place of origin. He pointed out that 80 percent of the AAON workforce was racialized, an observation with which the applicant concurred, and that it would be very unlikely that the committee members would have been aware of an employee’s colour or place of origin.

16Mr. Johnson testified that in reviewing the applicant’s work history, the committee concluded that the applicant was not the type of employee suited to a downsized skeletal work crew where job flexibility and the ability to prioritize would be critical. According to Mr Johnson, the committee was aware of the fact that six months prior to his termination the applicant was instructed to engage in product assembly, an entry level job, as the applicant did not have anything to braze at the time. However, instead of engaging in product assembly as directed, the applicant began performing non-urgent welding work. When told to do the task that he had been directed to do, the applicant said he was not going to do assembly because that was not part of his job. After having been brought to Mr. Hanna’s office, the applicant was told that if he wanted to stay at AAON he would need to do product assembly work. The applicant eventually agreed to perform the product assembly work. The applicant does not contest this chain of events.

17Mr. Johnson spoke to other performance issues that AAON had with the applicant but they were either minor in nature or undocumented. Nonetheless, it would appear that work related factors were considered in taking the decision to let the applicant go. I am not satisfied on the evidence before me that the decision to terminate the applicant was influenced by his race or place of origin or that the evidence is such that an inference to that effect can be drawn.

18The applicant maintains, as well, that he was terminated because he supported the union in its certification of AAON. Indeed, by letter dated November 2, 2007 addressed to “Human Resources Canada, Employment Insurance”, the union’s Business Manager wrote:

AAON has stated that he [the applicant] is terminated and has admitted that this termination is not based on either cause or just cause. It is the Union’s position that Mr. Bailey’s employment was terminated as a result of his Union support in the recent certification of the company.

Be that as it may, a termination on account of union activity or support, in my view, has no nexus to any of the prohibited grounds set out in the Code.

ORDER

19For all these reasons the Application is dismissed. It will not be necessary to hear from the parties on remedies.