HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adhin Sukhu

Applicant

-and-

Universal Energy Corporation,

Stephen Browne and Martin Singh

Respondents

DECISION

Adjudicator: Judith Hinchman

Date: November 10, 2009

Citation: 2009 HRTO 1922

Indexed as: Sukhu v. Universal Energy

APPEARANCES BY

) Adhin Sukhu, Applicant ) Self-represented ) Universal Energy Corporation, ) Thomas Stefanick Stephen Browne and Martin Singh, ) and Sumeet Dhanju, Respondents ) Counsel

1This is an Application filed December 17, 2008 under section 53(3) of Part VI of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on September 16, 2007 and abandoned upon the filing of the present Application. The Case Resolution Conference in this matter took place on October 29, 2009.

2The applicant alleges discrimination on the basis of age in employment when the corporate respondent did not offer him a job that he interviewed for.

BACKGROUND

3The corporate respondent, Universal Energy Corporation is licensed to sell natural gas and electricity in Ontario and natural gas in British Columbia. The respondent, Stephen Browne is the Vice-President of Information Services for the corporate respondent overseeing the Information Technology (“IT”) department. The respondent, Martin Singh is the Director of IT Operations and Security for the corporate respondent.

4In December 2006, the corporate respondent posted an advertisement for a “Team Lead, IT Operations” position. This position was posted twice because following interviews from the first posting no candidates were selected. In total, the corporate respondent received over 300 applications. Approximately nine candidates were chosen for an interview. These candidates were interviewed over a period of several months. From the second posting, the applicant was selected for an interview, which took place on April 12, 2007. None of the candidates from the second posting were offered the position.

5Subsequently, an employee of the corporate respondent, Videsh Mohan, was interviewed for and offered the position.

6The applicant alleges that he was not offered the position due to his age.

Issues

7There are two issues in this case:

a. Was age a factor in the respondents’ decision to not hire the applicant?

b. If discrimination is established, what is the appropriate remedy?

Was Age a Factor in the Respondents’ Decision to not Hire the Applicant?

8The relevant Code sections are sections 5, 9, and 23(2), which provide:

5. Every person has a right to equal treatment with respect to employment without discrimination because of … age….

6. No person shall infringe or do, directly or indirectly, anything that infringes a right under this part.

23(2). The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

9Discrimination will be found if, on a balance of probabilities, the applicant has demonstrated that his age was a factor in the respondents’ decision to not hire him, and if the respondents have not provided a credible non-discriminatory explanation for their decision not to hire him.

Applicant’s evidence

10The applicant makes several allegations to support his Application. He first alleges that when he arrived at the interview, the respondents realized that he was much older than they anticipated. He also alleges that during the interview, Mr. Singh stated that the applicant was “very senior” and then commented that he was concerned about how the applicant would deal with “very young” team members.

11In an email exchange between Mr. Browne and the applicant, initiated by the applicant to ask for the reason he was not hired, Mr. Browne stated that there was no specific failure in any area but that “it was more of an overall fit decision.” A copy of the April 27th email exchange was submitted.

12The applicant argues that his age is the only factor that could explain this comment. For support of that assertion he requested and the respondents submitted a list of employees who reported to the personal respondents in the IT department at the time of the interview. This list indicates that those employees were at that time in their 20’s.

13Furthermore, the applicant argues that he had all the qualifications listed on the job advertisement. During the interview he was asked if he had any experience with Blackberry Enterprise Server. He admitted that he did not. He argues, however, that this was not a required skill listed on the job posting and so it could not have been a real factor in the respondents’ decision. Furthermore even if it was, that he could have been trained, and that the successful candidate’s résumé also did not show that qualification. In fact, he argues that Mr. Mohan’s résumé shows that he had far less experience than the applicant in the other posted job requirements. Both the applicant’s and Mr. Mohan’s résumés were admitted as evidence.

Respondents’ evidence

14The respondents disagree that they were surprised by the applicant’s age or that it became a negative factor upon meeting him. They argue that when they vetted his application, given his education and the years listed for work experience, it was obvious that he was likely in his 50’s. Furthermore, they were attracted to his years of experience because this suggested the type of experience and expertise matching the qualities they were looking for in a Team Leader who they expected to mentor the rest of the team. Therefore, based on his résumé they thought he would be an attractive candidate and they chose him for an interview.

15Mr. Singh disputes that he stated in the interview that the applicant was “very senior.” He asserts that he may have used the term senior but that he meant senior experience in technical skills. He did ask the applicant how his experience would impact leading a team of much less experienced individuals. The parties agree that a conversation about the applicant’s experience as a college professor followed.

16With respect to the “fit” comment, Mr. Browne testified that he meant first, the applicant was not a technical fit in that when questioned in the interview they found out he did not have Blackberry Enterprise Server experience. Second, he meant that his impression was that the applicant’s personality would not fit in with the team. He testified that this criterion is hard to describe but is a feeling that he looks for in any interview. Mr. Browne emphasized that in his opinion none of the candidates interviewed after the first and second postings were the right fit and that assessment of fit never included age. The third factor assessed in all the interviews was salary expectation. It is undisputed that the applicant’s previous salary was slightly more than $20,000 higher than what the respondents had budgeted for the Team Leader position. The applicant had earned just over $70,000 at his last job and they had authority to offer up to $50,000. Ultimately Mr. Mohan accepted $47,500 for the position.

17Following each interview, the personal respondents reviewed the candidate and came to a decision. In this case, the respondents’ position is that it was the technical and personality factors that led them to conclude the applicant was not the right fit.

18With respect to the list of employees who were all in their 20’s, Mr. Browne testified that this was not by design but rather the result of who had accepted positions that the respondent had offered in the past. He testified that in a number of previous situations the respondents had made offers to individuals with more years of work experience and that quite often these offers were declined due to higher salary expectations than the corporate respondent could meet.

19It was not until all candidates from both postings were rejected that the respondents looked at existing employees and felt that Mr. Mohan was qualified.

20The respondents were questioned as to why expertise of Blackberry Enterprise Server was not listed on the job posting yet became an important criterion in the second round of interviews. The respondents testified that when the original job posting was created in December 2006, only management personnel had Blackberry handhelds. Shortly thereafter the company experienced rapid growth in order to address plans to enter new markets. Sales were primarily conducted by a door-to-door sales force and this was expanded to over 600 employees. After December 2006, the sales force was issued Blackberry phones and required to use these at the point of sale to input information about the plan chosen and various facts about the client. The server not only needed to be operational at all times when sales may occur but also acted as a security system for the information gathered and to safeguard against misuse of the devices by any sales force employee. Given the size of the sales force, the plans to move into a larger market, and security factors noted, the respondents concluded that this server system was critical to the infrastructure. Because the entire round of interviews took about four to five months, it became more apparent towards the end of the process, which happened to be when the applicant was interviewed, that an operating knowledge of this server was a necessary technical skill and thus an important factor in hiring for this job. Because the posting had not included this requirement, each candidate was asked about their experience in this area during the interview.

21At the Case Resolution Conference, Mr. Browne was asked how many of the Team Lead IT Operations responsibilities listed on the job advertisement would require expertise in Blackberry Enterprise Server. It was his testimony that of the ten listed responsibilities, after the company became so reliant on the Blackberry Enterprise Server system, six of those responsibilities could no longer be carried out without that expertise.

22In response to the applicant’s assertion that Mr. Mohan’s résumé did not show that he was qualified, the respondents made the following assertions. It became apparent shortly after Mr. Mohan began working at the company that he brought skills to the job that were not reflected on his résumé. In addition he was a quick learner who initiated learning experiences on his own. During his previous seven months with the company he also put into place many of the new systems required in the growth phase. This included working directly with the outside contractor to install and customize the Blackberry Enterprise Server system. Finally, during this period, the others on the team had begun to look up to him as the “go to “ person and in effect he was acting effectively as the team leader already.

Analysis and Decision

23Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the court stated:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

24Other factors the Tribunal has applied as relevant factors in assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties; see Shah v. George Brown College, 2009 HRTO 920. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference that the party did not call a particular witness because the witness would not have been supportive to that party’s case; Shah, supra.

25Under the circumstances, it does not make sense that the respondents would have been surprised by the applicant’s age when he arrived at the interview. Examination of his résumé shows that the applicant had begun his professional career 26 years prior to his application to the respondents and had held a number of highly technical positions in the IT field. The applicant’s résumé does reflect the qualities and experience that the respondents state caused them to invite him to interview. Further, his listed qualifications support Mr. Singh’s explanation of his question regarding seniority. Mr. Singh was a credible witness and it is reasonable that he would have been referring to the applicant’s years of extensive experience rather than his age.

26In all the circumstances, although the applicant may sincerely believe his recollection to be true, I find the respondents’ recollection of the interview with respect to the alleged comment is more reasonable. For all these reasons I am more persuaded by the respondents’ explanation of any comment regarding seniority made by Mr. Singh during the interview. I do not find that Mr. Singh made a comment conveying a negative attitude or stereotype regarding the applicant’s age or asked a question relating to the applicant’s age.

27Mr. Browne’s explanation of his reason for using the term “overall fit” in his email explaining why the applicant was not chosen likewise is reasonable in the circumstances. Mr. Browne articulated the areas that were assessed for fit into the team and explained the rationale behind each area assessed. Those were technical skills, personality alignment with the rest of the team, and salary expectations. With respect to technical skills, the respondents made a convincing case for the importance of Blackberry Enterprise Server expertise and provided a satisfactory explanation for why this was not included in the job posting. The applicant did not present any evidence to suggest that this requirement was a pretext. Under the circumstances it is reasonable that this was considered a crucial factor. The applicant was clear during the interview and at the CRC that he did not possess that expertise. There is no evidence that the applicant’s age was considered when assessing his lack of this technical skill.

28With respect to the personality alignment sought, the fact that all employees reporting to the personal respondents in the IT department were at the time in their 20’s also does not persuade me that age was a factor in “fit” for the following reasons. The respondents invited the applicant to the interview when on the face of his résumé it was obvious that he was not in his 20’s. And the respondents’ uncontradicted evidence is that often in the past when they had made offers to individuals who were not in their 20’s, many had for reasons of past employment salaries declined the offer because their salary expectations were not met. There is nothing in the evidence to suggest that this is not a reasonable explanation for why the listed employees were all in their 20’s. This fact thus does not support that age was a factor in this case. And there was no evidence to suggest that the respondents’ impression of his personality alignment was tainted by subconscious biases about older workers.

29Finally, I do not agree with the applicant that a comparison of the applicant’s and the successful candidate’s experience supports an inference that, given his superior qualifications, age must have been a factor in his not being awarded the position. I accept the respondents’ uncontradicted evidence that Mr. Mohan had become proficient in and particularly knowledgeable about the company’s Blackberry Enterprise Server system. Furthermore, there was no evidence to the contrary or any reason to discount the respondents’ assessment of Mr. Mohan’s other qualifications many of which were acquired on the job and thus not included in his résumé that was prepared prior to his joining the respondents in the fall of 2006. Their evidence was detailed and credible and as I said no evidence to the contrary was presented. Given also that I accept the respondents’ persuasive evidence on how important it was to have expertise in the Blackberry Enterprise Server system, their conclusion that Mr. Mohan had the superior qualifications is quite reasonable. I thus find that it is reasonable that the respondents’ determined that Mr. Mohan was more qualified for the position than the applicant and thus I do not find that a comparison of their qualifications support the applicant’s argument that age was a factor in declining to make him a offer.

30Looking at all the evidence as a whole and on the balance of probabilities, I find that age was not a factor in the respondents’ decision not to hire the applicant. This Application is dismissed.