Bennett v. Protrans Personnel Services, 2009 HRTO 1737

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheldon Bennett

Applicant

-and-

Protrans Personnel Services Inc., Benigna Tomaylla, Jennifer Venart and Rita Sato

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: October 21, 2009

Citation: 2009 HRTO 1737

Indexed as: Bennett v. Protrans Personnel Services

APPEARANCES BY

Sheldon Bennett, Applicant ) On his own behalf

Protrans Personnel Services Inc., ) Glenn Christie, Benigna Tomaylla, Jennifer Venart ) Counsel and Rita Sato, Respondents )

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) dated November 6, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on May 24, 2007.

2The applicant, who identifies as Black, alleges that he experienced discrimination in employment because of his race and colour contrary to ss. 5 and 9 of the Code, on the following bases:

1. he was unfairly disciplined because of an incident with a security guard on May 8, 2007 and the lack of an investigation into that matter;

2. his shifts were cancelled many times for other co-workers and he was told by lead hands that other co-workers were more important than the applicant was, even though he had been working there before them, and he was given the least desirable shifts; and

3. he was not given a test referred to by the applicant as a “Super Protrans” test when others were, and a new “Super Protrans” worker with less work experience was hired over the applicant.

3The complaint filed by the applicant also alluded to an incident that had occurred in 2004, but no specific details of this incident were provided in the complaint or in the statement of additional facts filed by the applicant in advance of the hearing. Accordingly, I ruled at the commencement of the hearing that I would not consider this issue.

4The case resolution conference (hearing) in this matter was held on August 10 and 11, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. On consent of the parties, I took the lead in questioning the witnesses and heard from the applicant, three witnesses who testified on his behalf, and the three personal respondents. After I had completed my questioning, the parties were afforded the right to cross-examine opposing witnesses.

BACKGROUND

5The respondent Protrans Personnel Service Inc. (“Protrans”) is a temporary employment agency. Protrans provided temporary general labourer employees to a company called Irving Tissue. At the relevant time, Protrans also was supplying temporary general labourer employees to work at a plant that was referred to in the evidence as Excel.

6The applicant commenced work for Protrans in 2002 in a temporary general labourer position primarily at Irving Tissue. The applicant also performed work for Protrans in a temporary general labourer position at the Excel plant at least until 2004, when he indicated that he did not wish to work at that location. In circumstances that will be discussed in more detail below, the applicant later advised Protrans that he would be willing to consider work at the Excel plant.

7The personal respondent Jennifer Venart is an Account Manager and Recruiter who has been employed by Protrans since 2001. The personal respondent Benigna Tomaylla also has been employed by Protrans since 2001, initially in a temporary general labourer position and then as a lead hand supervisor for four years. In 2007, Ms. Tomaylla was promoted to the position of Recruitment Coordinator for Protrans, which she assumed on a full-time basis in 2008. The personal respondent Rita Sato has been employed by Protrans since 2003, and at the relevant time was a lead hand supervisor.

THE INCIDENT ON MAY 8, 2007

8All employees who worked at the Irving Tissue plant, including temporary Protrans employees, were required to have their picture taken for a photo identification card. Irving Tissue policy was that employees could not wear a hat when their picture was taken.

9On the morning of May 8, 2007, the applicant was advised by his lead hand, Ms. Sato, that he was to report to security to have his picture taken. The applicant expressed concern because his hair was unkempt and, in his terms, he looked like a “scruf”. The applicant asked Ms. Sato if he could keep his hat on when the picture was taken. Ms. Sato reminded him of Irving Tissue policy, but said that he could ask security.

10The applicant reported to security and interacted with an Irving Tissue security guard, who was identified by the applicant as being West Indian. The security guard was not called to testify before me, so I do not have the benefit of his evidence. I was, however, provided with DVD clips of at least portions of this interaction. One clip is from a fixed camera that is mounted in the security area, which takes still pictures at two second intervals without sound. The applicant’s evidence is that this clip does not show the interaction from the very start, when he first arrived in the security area, but it does cover a longer period of time than the second clip. The second DVD clip is from a camera that was mounted on the security desk and consists of continuous video and audio. This clip records the last minute of the interaction. In the absence of evidence from the security guard, I am prepared to accept the applicant’s evidence about this incident, except where it conflicts with what is shown on the DVD clips.

11The applicant’s evidence is that he arrived in the security area and awaited his turn to approach the security guard. When it was his turn, the applicant indicated that he was there to have his photo taken, but asked if he could keep his hat on because his hair was unkempt. This was refused.

12The security guard then stated, “You Protrans people have been giving me trouble since yesterday”, to which the applicant responded by saying that this was a racist remark and that he should be addressed as an individual rather than being grouped with others. There is no basis in the evidence to support that this was a racial comment, as opposed to being a comment about the temporary employees working at the Irving Tissue plant.

13The security guard then said that the applicant was shouting at him, to which the applicant responded by asking why the guard was telling lies on him. The security guard asked the applicant whether he was calling the guard a liar, and the applicant replied that he was calling the guard a liar if the guard was saying that the applicant had been shouting at him. At this point, the applicant’s evidence is that the security guard said, “Take your damn hat off. It’s not a beauty contest.”

14The applicant replied that he was not going to have his picture taken looking like a “scruf” and asked if he could come back and have his picture taken the next day, which would give him time to get a haircut, or could speak to his lead hand to see whether she would permit him to leave the work site to get his hair cut that day before having his picture taken. The security guard asked the applicant whether he was going to have his picture taken or not, to which the applicant replied that he wasn’t going to have his picture taken looking unkempt.

15At this point, there was a lengthy delay as the applicant waited while the guard attended to other people. During this time period, the guard also set up a camera at the security desk to record video and audio of the applicant. Once the camera was set up, the security guard’s voice can be heard asking the applicant whether he had called the guard a liar. The applicant responds, “Yes, that is how the conversation went”. The DVD then clearly records the applicant raising his voice and pointing his finger, as he asks whether or not the guard is sending him home. The applicant repeats this question four times in a matter of about 10 seconds, while also saying that he has been working there for five years and how much he earns. The clip concludes with the applicant turning from the camera and saying, “Give me a break”. While the applicant is speaking, the guard can be heard in the background saying that all he wanted to do was to take the applicant’s picture.

16Following the incident, the evidence indicates that the applicant’s lead hand, Ms. Sato, was called down to the security area and advised that the applicant had yelled at the security guard. Ms. Sato in turn called Ms. Tomallya who also went to the security area. The evidence of both Ms. Sato and Ms. Tomallya is that Ms. Sato was to write the applicant up for having been rude to the security guard. Neither Ms. Sato nor Ms. Tomallya had reviewed the security camera footage at this time, and the decision to write up the applicant was based on information received from the security guard.

17Ms. Sato then proceeded to the applicant’s work station. There is some dispute in the evidence as to whether Ms. Sato told the applicant that she needed to write him up, which is Ms. Sato’s evidence, or whether she also told the applicant that she was going to send him home, which is the applicant’s evidence. In any event, Ms. Sato prepared a disciplinary report for the applicant to sign. There is a portion of the disciplinary form headed “Employee Statement”, which is for the purpose of recording the employee’s response to the incident. As the applicant would not meet with Ms. Sato to discuss the incident, this section of the disciplinary form records “no comment”.

18There is no dispute in the evidence that the applicant went to his locker, took his belongings and then went to Ms. Sato’s office and handed in his swipe card and told her that he was going home. Ms. Sato asked the applicant if he was sure he wanted to do this, to which the applicant responded yes. The applicant then left the premises.

19The issue for me is whether this incident supports an allegation of racial discrimination against the applicant by Protrans or its employees. It is important to note that the security guard is not a Protrans employee, and neither he nor his employer has been named as a respondent to this Application. As a result, it is not an issue before me as to whether the applicant experienced racial discrimination by the security guard himself.

20The primary basis for the applicant’s allegation that he experienced racial discrimination by Protrans is that they accepted the security guard’s side of the story without first having spoken to him. In response, Ms. Tomallya stated that she accepted the security guard’s version of the incident because she was aware of prior incidents where the applicant had lost his temper. The respondents also took the position that the applicant would have had an opportunity to provide his side of the story had he chosen to meet with Ms. Sato to discuss the incident, as had been requested, rather than deciding to quit. By doing so, the respondents say that the applicant effectively frustrated the investigation process.

21The question for me is whether there is any basis in the evidence to support the allegation that the respondents’ actions were related to the applicant’s race or colour. I find that they were not. In making this determination, it is important to note that the security guard was not a Protrans employee, and so the respondents had no disciplinary authority over him. Moreover, as a temporary employment agency, the Irving Tissue plant where the security guard worked was a Protrans client. In this context, it does not surprise me that Protrans would not want its employees causing trouble with persons who worked for its client, Irving Tissue. I also accept Ms. Tomallya’s evidence that she found the security guard to be believable on the basis of prior direct experience with the applicant losing his temper, for which she was able to provide specific evidence of a prior incident.

22Further, while the evidence indicates that the decision to write up the applicant was made before the security camera footage was reviewed by the respondents, the footage of at least the last minute of the exchange does show the applicant raising his voice at the security guard in a manner that was inappropriate. The applicant’s position is that he was provoked by the security guard’s own inappropriate conduct, and that the whole incident needs to be reviewed in its entirety in order to provide context for his behaviour at the end. There certainly are some elements of the security guard’s conduct that, if true, I would also regard as having been inappropriate. But that does not give the applicant licence to engage in inappropriate retaliatory conduct. The respondents’ position is that if the applicant had an issue with the security guard, he ought to have raised it with a Protrans supervisor for appropriate action to be taken. I agree. Even if the security guard’s conduct was inappropriate, the applicant’s own conduct at least at the conclusion of the exchange was inappropriate and worthy of at least a disciplinary warning.

23Accordingly, I find that there is no basis in this incident to support the allegation of racial discrimination against the respondents.

SCHEDULING ISSUES

24There are three elements to the scheduling issues raised by the applicant. First, the applicant’s evidence is that he was not being scheduled for regular shifts, and when he questioned why not, he was told that other Protrans employees were more important than him. In fact, when questioned further on this evidence, it appears that what the applicant was actually told was that Protrans would give preference to employees who were prepared to work at more than one location. As previously indicated, following an incident in 2004, the applicant refused to accept work at the Excel plant. As a result, Protrans employees who were willing to work at either Irving Tissue or at the Excel plant were given priority over the applicant, even for shifts at Irving Tissue where the applicant preferred to work. The applicant’s own evidence was that he couldn’t think of a time when he was told that other workers were more important when it was not related to willingness to work at the Excel plant.

25The applicant ultimately agreed to resume working at the Excel plant on the understanding that this would result in getting more regular hours. The applicant’s evidence is that the respondents broke their promise to him, because even after that time, he was still not getting regular hours. Whether or not this is the case, there is no evidence before me to support that this was due to the applicant’s race or colour.

26The second element of the applicant’s allegation about scheduling relates to the fact that his shifts would be cancelled, often at the last moment. The respondents’ evidence is that, as a temporary employment agency, their need for employees is entirely dependent upon the clients’ needs, and often they would find out at the last minute that shifts were being cancelled.

27The applicant and his witnesses gave evidence that Protrans played favourites with its employees, and that there were occasions when their shifts were cancelled but other Protrans employees were called in to work. The evidence in support of this allegation was vague and generalized in nature. When I asked for specific examples, the applicant and one of his witnesses pointed to an example where their shifts had been cancelled, but when they next went into work, they discovered that other Protrans employees had been working. However, on the evidence of both the applicant and his own witness, who is also Black, one of the Protrans employees who had been called in himself was Black.

28In order to substantiate an allegation of this nature, the applicant needs to be able to provide specific evidence of occasions when his shifts were cancelled in favour of other employees of a different race or colour or provide some other evidence to support that race was a factor. Generalized or impressionistic evidence is not sufficient. In this case, I was provided with no such specific evidence to support the applicant’s allegation.

29The third element of this allegation relates to a claim that the applicant was given the least desirable shifts. The applicant’s evidence is that Asian Canadian and Filipino Canadian employees were given preference over him. Once again, however, no specific examples were provided to support this allegation, with the applicant instead relying upon generalized and impressionistic evidence. As previously indicated, I find this insufficient to support an allegation of racial discrimination.

30Accordingly, I find that the applicant’s allegations in relation to scheduling issues are not supported by the evidence.

THE “SUPER PROTRANS” TEST

31When employees are first hired by Protrans, they write the Wonderlic Personnel Test. In addition, if the employee scores sufficiently well on the Wonderlic test and at Protrans’ discretion, employees may also be asked to write the Bennett Mechanical Aptitude Test.

32As previously indicated, Protrans provided Irving Tissue with temporary general labourer employees. In 2005, Irving Tissue advised Protrans that it had a need to fill temporary operator positions, and asked Protrans to undertake this role. The Protrans temporary operator employees were to be paid at a significantly higher rate than the temporary general labourer employees.

33The evidence indicates that Irving Tissue required temporary operator employees to have achieved at least a score of 20 on the Wonderlic Personnel Test. In response to Irving Tissue’s request, Protrans reviewed its files to identify those employees who had achieved this score, who were then sent on for further testing.

34The applicant’s score on the Wonderlic Personnel Test was 12. As a result, he was not one of the employees who was identified by Protrans for consideration for the temporary operator positions.

35The applicant takes issue with the fact that other employees, who had not worked for Protrans as long as he had, were placed into temporary operator positions. This appears to be undisputed. But there is no evidence before me to suggest that these employees had not met the standard score of 20 on the Wonderlic test that had been set by Irving Tissue.

36Throughout this proceeding, the applicant appears to have been operating under the misapprehension that his years of service with Protrans afforded him greater entitlements than those with less years of service. The evidence indicates that this simply was not the case. Protrans employees are not unionized and are not covered by a collective agreement, and so there are no greater entitlements attached to an employee’s years of service or “seniority”. Further, as a temporary employment agency, Protrans appears to have operated on the basis that it was in the business of supplying temporary workers to fill client needs, and was not concerned about how long any particular employee had worked for Protrans. Indeed, when scheduling employees for work, the respondents were quite clear in their evidence that they tried to equalize hours amongst all Protrans employees, regardless of their years of service with Protrans.

37The applicant also raises a concern that other employees were asked to write what he referred to as the “Super Protrans” test, while he wasn’t asked. I understand the “Super Protrans” test to refer to the tests that were administered to an employee in order to qualify for a higher-paying temporary operator position. These employees apparently were referred to as “Super Protrans” employees because of their higher rate of pay.

38As previously indicated, the applicant was not identified to write the tests to qualify for the temporary operator positions because he did not score 20 on the Wonderlic test. The evidence indicates that there were employees who had not achieved a score of 20 on the Wonderlic test who approached the respondents and asked for the ability to re-write the test. This was granted by the respondents, on the basis that there needed to be a three month interval between writings of the Wonderlic test and the test couldn’t be written more than twice.

39The evidence is undisputed that the applicant never asked to re-write the Wonderlic test. He appears to believe that he shouldn’t have been required to ask, given his years of service. This belief does not accord with the evidence. The applicant also gave evidence that if he had asked to re-write the test, there may have been work consequences for him. There is no evidence to support this assertion.

40Finally, there was some evidence before me that, at some point after the applicant left his employment with Protrans, Irving Tissue may have relaxed the standard score required on the Wonderlic test from 20 to 19 or even 18. However, there is no evidence before me that Irving Tissue was prepared to consider a Protrans employee with a score as low as 12.

41At the end of the day, I find that the applicant was not considered for the temporary operator positions at Irving Tissue solely on the basis of his score on the Wonderlic Personnel Test, and not for any discriminatory reason.

ORDER

42For all of these reasons, the Application is dismissed.