LaFortune v. Washington Mills Electro Minerals, 2009 HRTO 504

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tom LaFortune

Applicant

-and-

Washington Mills Electro Minerals Corporation

Respondent

case Resolution Conference DECISION

Adjudicator: Jennifer Scott

Date: April 30, 2009

Citation: 2009 HRTO 504

Indexed as: LaFortune v. Washington Mills Electro Minerals

AppearanceS BY

Tom LaFortune, Applicant ) On His Own Behalf

Washington Mills Electro Minerals Corporation, ) Jennifer M. Fantini,

Respondent ) Counsel

PRELIMINARY MATTERS

1This is an Application filed October 27, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on May 9, 2005 and abandoned upon filing this Application with the Tribunal.

2The Case Resolution Conference (“CRC”) was conducted on April 6, 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 given they are often based on complaints, like this one, which are nearly a year old by the time they reach the Tribunal. The following witnesses gave evidence: Tom LaFortune, the applicant; and Sandra Fannon, Wayne Moody and Brian Green for the respondent.

3The hearing of this Application was bifurcated. The parties were advised that the issue of liability would be determined first and in the event an infringement of the Code was found, a further hearing date would be set to determine remedy. This CRC Decision deals solely with the issue of liability.

Nature of the Dispute

4The applicant, Tom LaFortune, claims discrimination in employment on the basis of disability pursuant to sections 5 and 9 of the Code against Washington Mills Electro Minerals Corporation (“Washington Mills”). The applicant alleges that his carpal tunnel syndrome (“CTS”) was a factor in Washington Mills’ decision to not rehire him.

DECISION

5The Application is upheld. What follows are my reasons.

Narrowing of the Issues

6At the commencement of the hearing, the parties confirmed that the following issues were not in dispute:

• The applicant suffers from CTS;

• CTS is a disability under the Code;

• The applicant was laid off on November 7, 2004 pursuant to the terms of the collective agreement;

• The applicant’s recall rights expired by March 7, 2005;

• The applicant’s complaint concerns the failure of Washington Mills to rehire him after his recall rights had expired;

• Employees with less seniority than the applicant were rehired after March 7, 2005;

• New employees were hired after March 7, 2005;

• Ms. Fanon knew the applicant had CTS at the time she made the decision not to rehire him.

FACTS

7The applicant started working for Washington Mills on March 15, 2004 as a labourer in the Furnace Plant. He was on probation for the first 180 days of his employment.

8On June 3, 2004, the applicant told Sandra Fannon, the Manager of Human Resources at Washington Mills, that he had been diagnosed with CTS which had been caused by working on the shovel detail during his first two weeks of employment. While the parties disagree about the exact response of Ms. Fannon, both parties agree that she questioned the validity of the diagnosis. Ms. Fannon’s notes of the conversation indicate that she explained to the applicant that CTS, as far as she knew, did not develop over a short period of time.

9There was no request by the applicant at any time for modified or light duties relating to his CTS.

10The applicant went through a series of lay-offs and recalls during his employment. He was laid off on August 15, 2004 and recalled on August 22, 2004. He was laid off on October 3, 2004 and recalled on October 18, 2004. He received a final lay off from Washington Mills on November 7, 2004.

11During his probationary period, the applicant received monthly performance appraisals for the months of April, May, July, August and September 2004. In each of these appraisals, the applicant’s supervisor recommended that his employment be retained. His performance was reviewed as satisfactory or above average in all of the appraisals. In his July probationary appraisal, Mr. Nan, his supervisor stated: “Tom works well with others and has always completed duties assigned to him”. In his August probationary appraisal, Mr. Green, another supervisor, noted the following: “Good worker. Willing to learn as do most new employees!”.

12The applicant’s probationary period expired on October 24, 2004.

13The applicant received health care benefits from the Workplace Safety & Insurance Board (“WSIB”) for treatment for his CTS. Ms. Fannon was advised of the applicant’s entitlement to WSIB benefits on September 10, 2004.

14On March 1, 2005, Ms. Fannon conducted an evaluation of the applicant in order to determine whether the respondent should rehire him. Ms. Fannon reviewed the applicant’s file and contacted two of his supervisors, Mr. Green and Mr. Moody, to solicit their input as to whether he should be rehired. Ms. Fannon’s notes of her conversation with Mr. Green and Mr. Moody are reproduced below:

Per Brian Green – Shortly before lay off Tom was Brian’s pusher. Tom came to Brian about D. Handley. Didn’t like way Dan did things. Brian felt pretty nervy for new guy to criticize long term guy. Tom seemed to feel he was only one who worked hard. Felt he was “Super Pusher”. Good worker but difficult to get along with?

Per Wayne Moody. Good worker – could count on him as Barquette Operator – got things done, followed instructions well BUT always had some criticism of the shift he followed – everyone else was lazy and stupid. He always ate his lunch alone at back of locker room – never ate in the lunchroom

15Ms. Fannon made the decision not to rehire the applicant. She stated her decision was based on the feedback of Mr. Green and Mr. Moody. Ms. Fannon did not seek the input of Mr. Nan even though he had completed two of the five probationary appraisals of the applicant.

16Under the collective agreement, employees at Washington Mills have the right to be recalled to employment after a lay off based on 50% of their seniority. There is a disagreement between the parties as to when the applicant’s recall rights expired. The applicant believes his recall rights expired on March 7, 2005 because of the calculation of his union. Ms. Fannon calculated the applicant’s recall expiry date as February 23, 2005. Nothing turns on the exact date the applicant’s recall rights expired because the hiring and rehiring that the applicant complains about occurred after March 7, 2005, the date that he believes his recall rights expired.

17On March 10, 2005, the respondent rehired an employee with less seniority than the applicant. On March 13, 2005, the respondent rehired three employees with less seniority than the applicant. The respondent does not dispute that it rehired employees, whose recall rights had expired, with less seniority than the applicant and hired new employees after the applicant’s recall rights had expired.

Analysis

18The Tribunal finds that the applicant has established a prima facie case of discrimination. A reasonable inference that the applicant’s disability was a factor in the decision not to rehire him arises from the fact that: (a) employees with less seniority were rehired by the respondent after their recall rights had expired; (b) new employees with no experience with the company were hired over the applicant; and (c) the applicant had strong performance appraisals throughout his employment with the respondent.

19The respondent’s response is that it did not rehire him because of his attitude and inability to get along with other co-workers based on the input of Mr. Green and Mr. Moody obtained during the evaluation of Ms. Fannon.

20In reviewing Ms. Fannon’s evaluation of the applicant, it appears that she was looking for a negative appraisal of the applicant from the outset. She began the evaluation by commenting on the applicant’s absenteeism which had been perfect until he got into the Union. It turns out the applicant had been absent for one day in almost eight months of employment. She also commented on his inappropriate handshake (which could have been related to his CTS) and the fact that he had difficulty getting his girlfriend covered on his health care benefits even though he had been told several times that the company required her date of birth. Ms. Fannon questioned whether the applicant had a listening or understanding problem and noted it “bizarre”. It is unclear to the Tribunal how any of these facts are relevant to the applicant’s job performance.

21When testifying before the Tribunal, Mr. Moody said he did not speak with anyone about the applicant’s “attitude problem” before being contacted by Ms. Fannon on March 1, 2005. Mr. Moody said he typically speaks directly with Ms. Fannon about performance concerns and did not approach her about the applicant because he did not have a problem with his performance and did not believe his attitude related to his performance. Mr. Moody said he did not discipline the applicant because there was no problem with his work. He stated very clearly that his job as a supervisor was to ensure the applicant did his job: that he did not care about the applicant’s personality. Finally, in Mr. Moody’s evaluation dated May 15, 2004, he rated the applicant’s “cooperation” as above average. Mr. Moody stated that Mr. Nan would have been the predominant supervisor for the applicant. An adverse inference can be drawn from the fact that the respondent did not call Mr. Nan as a witness.

22Mr. Green testified that the applicant complained to him at least once a week about employees leaving work, about work not being completed and about how the work was being done by his co-workers. Mr. Green completed the applicant’s performance appraisal on August 15, 2004. There was no mention of any of these issues on the performance appraisal. Mr. Green rated the applicant’s cooperation as “satisfactory” and commented that he was a good worker. Mr. Green was particularly concerned that in one of his complaints, the applicant complained about a 20-year crane operator although he could not recall whether he raised his concern directly with the applicant.

23I do not accept the respondent’s assertion that the applicant was not rehired solely because of his attitude problems and inability to get along with co-workers. I agree these concerns are important in any employment setting. Indeed, cooperation is listed as a skill that is assessed in the month probationary performance appraisals. In all of his reviews, the applicant received a satisfactory rating for “cooperation” and was ranked “above average” by Mr. Moody. Neither Mr. Moody nor Mr. Green made any verbal or written complaint about the applicant and there was no negative assessment in his personnel file. Mr. Nan commented in the July 15, 2004 appraisal that the applicant worked well with others. In my view, had the applicant acted as alleged, a written record concerning these problems would have existed prior to Ms. Fannon’s notes of March 1, 2005.

24Ms. Fannon is the only person that knew about the applicant’s CTS. I find she sought a negative appraisal of the applicant, in part, because she did not want to rehire him because he had CTS. The negative opinions of Mr. Green and Mr. Moody, received for the first time on March 1, 2005 when Ms. Fannon was conducting her rehiring evaluation, were used as a pretext to not rehire the applicant. Had these concerns been legitimate, they would have shown up on the applicant’s probationary appraisals. The very purpose of such an appraisal is to let the applicant know of performance concerns, including his ability to get along with others. At no time was the applicant advised that there were concerns in this area.

25As a result, in the absence of a credible non-discriminatory explanation from Washington Mills, I find that Ms. Fannon’s decision to not rehire the applicant constitutes discrimination because of disability in violation of s. 5(1) of the Code. Because Ms. Fannon holds a management position with Washington Mills, the corporation is responsible for her decision.

NEXT STEPS

26I have found that Washington Mills violated the Code when it decided to not rehire the applicant in March 2005, in part, because of his disability. As a result of my finding, I will need to hear evidence from the parties as to the appropriate remedy. Accordingly, I am requiring the parties to file materials regarding remedy with the Tribunal in accordance with the following schedule:

a. Within 14 days of the date of this CRC Decision, the applicant shall serve on Washington Mills and file with the Tribunal a statement of the specific remedies that are being sought and the evidence to support those remedies;

b. Within 21 days of the date of this CRC Decision, Washington Mills shall serve on the applicant and file with the Tribunal its response to the applicant’s material on remedy; and

c. Within 28 days of the date of this CRC Decision, the applicant shall file any materials in reply.

27The parties will be contacted regarding an appropriate date for their further attendance on the remedial portion of this hearing.