HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Blaine Gallienne
Applicant
-and-
ArcelorMittal Montreal Inc.
Respondent
decision
Adjudicator: Keith Brennenstuhl
Indexed as: Galliene v. ArcelorMittal Montreal
APPEARANCES
Blaine Nicholas Gallienne, Applicant ) On his own behalf
ArcelorMittal Montreal Inc., Respondent ) Anne Gallop, Counsel
1This is an Application filed March 2, 2009, under section 53(5) of the Human Rights Code, R.S.O, c. H. 19, as amended (the “Code”). The underlying complaint (the “Complaint”) was filed with the Ontario Human Rights Commission ( the “Commission”) on December 5, 2007. The Application alleges that the applicant was subjected to discrimination in relation to employment on the basis of age.
BACKGROUND
2The respondent is a steel manufacturing company. As of January 2006 the respondent had two locations in Ontario; one at Burlington and the other at Hamilton. The applicant was employed by the respondent at its Burlington facility as a Shift Supervisor, a non-unionized position.
3In early 2006, the respondent announced to all of its employees that it would be closing the Burlington facility by the end of the year. In May 2006 the non-bargaining unit employees at Burlington (the “salaried employees”), of which the applicant was one of approximately six, were advised in writing that the Burlington facility would close on December 31, 2006.
4The bargaining unit employees’ employment was dealt with in accordance with a negotiated agreement between the respondent and those employees’ union. The salaried employees were all terminated and either offered a termination package or a retirement package if eligible. The applicant was offered a retirement package.
5The applicant argues that his age was a factor in the decision to terminate him from the Burlington facility. In addition, he maintains that he should have been hired into other positions at the Hamilton plant, which continued to operate, but that the respondent declined to hire him into other positions because of his age.
ANALYSIS AND DECISION
Closing of the Burlington Facility
6There is no evidence to suggest that age was a factor in the termination of the applicant from his position at the Burlington facility. The uncontraverted evidence is that the respondent closed its Burlington facility in December 2006 and that all of the salaried employees, including the applicant, were terminated regardless of their age. In reviewing the ages of the terminated employees, it is evident that both older and younger employees lost their employment at the Burlington facility when it was closed down.
7On the closure of the Burlington facility in December 2006, the applicant was eligible for an early retirement program that required employees to have at least 30 years of service. However, because he did not turn 55 until October 2007, he would have taken a reduction in pension if he retired on the closure of the Burlington facility. Thus, it was arranged that the applicant would not retire immediately upon the closure of the Burlington facility but would continue on payroll, using up his accumulated vacation and other entitlements, until October 31, 2007, at which time he was eligible for an unreduced pension. The applicant ceased actively attending work at the Burlington facility in December 2006 but was kept on payroll until October 31, 2007. While the applicant’s age was a consideration in the timing of the applicant’s retirement, it provided the applicant with a benefit, bridging him until he was entitled to an unreduced pension. In my view, such consideration does not constitute discrimination pursuant to the Code.
Employment at the Hamilton Facility
8The applicant argues that prior to his retirement, the respondent should have considered him for non-union positions that became available at the Hamilton facility and asserts that because of his age he was not given any consideration.
9It is not clear why, once terminated from the Burlington facility, the applicant would have any claim over non-union positions that became available at the Hamilton facility. However, it would be relevant to the applicant’s claim if it were established that the respondent hired younger persons to positions at the Hamilton location for which the applicant was qualified at the same time as it was planning to terminate the applicant’s employment. In my view, though, the applicant has failed to establish that this was the case.
10The applicant claims that two former colleagues, also salaried employees, obtained contracts with the respondent at the Hamilton facility after their retirement. It was undisputed that that these two employees are older than the applicant. In my view, their relationship with the respondent after their retirement has no relevance to the applicant’s allegation of age discrimination.
11The applicant alleges that two other colleagues, who are younger than him, were given positions at the Hamilton facility on the closure of the Burlington facility. The evidence revealed, however, that these colleagues were on loan, or seconded, from the Hamilton facility. Upon the announcement of the closure of the Burlington facility they returned to their home location at the Hamilton facility. In my view neither their age, nor the applicant’s age, was a factor considered when returning these employees to their home facility.
12According to the applicant, two shift supervisors at the Burlington facility, who are younger than the applicant, were transferred to the Hamilton facility shortly after the announcement that the Burlington facility was to close. The evidence reveals, however, that both of these employees were temporarily transferred to the Hamilton facility. Burlington was their home base and their employment with the respondent was terminated on the closing of the Burlington facility. In my view the applicant has failed to establish that his age or the ages of the two shift supervisors were factors considered by the respondent in transferring the shift supervisors to the Hamilton facility.
13The applicant indicates that another shift supervisor at the Burlington facility was retained by the respondent after the closing of the Burlington facility. However, the evidence reveals that this employee had greater seniority than the applicant and is also older than the applicant. He was actively employed by the respondent for three months at the Burlington facility following the end of operations at the facility in order to facilitate the closure of the plant. As of the end of December 2006, this employee also qualified for retirement and finally did retire in September 2007 after using his vacation time which would not have otherwise been paid out.
14According to the applicant, in June 2006 the respondent filled a supervisor/manager-customer service position at the Hamilton facility from an external source. Presumably this person was younger than the applicant although there was no evidence to this effect. In any event, it is clear that the applicant was not qualified for this position. The applicant was a shift supervisor responsible for supervising part of the manufacturing operations at the Burlington facility. The supervisor/manager-customer service position involved sales and marketing. The applicant’s responsibilities, by his own evidence, did not include sales or marketing.
15The applicant claims that in October 2006 the respondent hired a maintenance manager for the Hamilton facility from an outside source. Again there was no evidence led to establish that this person was younger than the applicant. In any event, the position was highly technical and required someone with an engineering degree. The applicant does not have an engineering degree nor did he demonstrate that he was otherwise qualified for the position.
16The applicant claims that in February 2008 an hourly employee at the Hamilton facility was promoted to shift supervisor. It should be noted that there was no evidence led to establish his age. The evidence does establish, however, that this shift supervisor position was only created in February 2008 when the respondent decided to make the Hamilton facility a continuous operation necessitating an additional shift supervisor. This occurred after the applicant’s retirement. In my view, the applicant did not have any claim to the new position. He was no longer in the employ of the respondent at the time the position was created, and as such, it is irrelevant to his complaint.
Posting Guideline
17The applicant alleges that he was at a disadvantage in securing a new position with the respondent at the Hamilton facility following the announcement of the closure of the Burlington facility because the respondent failed to post available positions contrary to the posting guideline that the respondent had e-mailed to employees at the Hamilton and Burlington facilities in August 2006.
18The respondent’s position was that there was not a failure to follow the guideline. According to the respondent, the guideline on its face only applied to positions between Level 3 and Level 7 and no position within that range became available prior to the applicant’s retirement and, consequently, there were no positions posted.
19In my view, even if it were demonstrated that the respondent did not adhere to the posting guideline, the applicant has failed to establish that the failure to post positions in accordance with the guideline amounted to differential treatment owing to age. On the contrary, the applicant’s own evidence was that no one received notification of any positions pursuant to the guideline.
Legacy Costs
20In written argument the applicant raised for the first time the spectre that he was dismissed from his employment as a result of “legacy costs”. No evidence was provided at the hearing in respect of legacy costs or that terminating senior employees reduced legacy costs. Accordingly, I do not accept this submission.
CONCLUSION
21The applicant closed its Burlington facility’s operations. Not surprisingly, this resulted in the loss of employment at the Burlington facility. Employees both older and younger than the applicant lost their employment. I find that there is no nexus between the applicant’s loss of employment and his age.
22For all of these reasons the Application is dismissed.
Dated at Toronto, this 7th day of May, 2010.
“Signed by”
Keith Brennenstuhl
Vice-chair