HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Nearing
Applicant
-and-
City of Toronto and Toronto Professional Fire Fighters’ Association
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Nearing v. Toronto (City)
APPEARANCES
John Nearing, Applicant ) On his own behalf
City of Toronto, Respondent ) Robert Fredericks, Counsel
Toronto Professional Fire Fighters’ ) James K. McDonald, Counsel
Association, Respondent )
INTRODUCTION
1John Nearing, the applicant, was a Fire Fighter with the Toronto Fire Services (“TFS”) for 33 years when, at age 65, he was required to retire from his position in the Operations Division. He was allowed to transfer to a non-operational position within the TFS at a lower rate of pay than he had been receiving in his previous position.
2The applicant filed this Application on January 26, 2009, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of age in employment. Initially when he filed this Application against the respondents, the applicant was challenging his mandatory retirement from the Operations Division, as well as the fact that he was receiving a lower rate of pay in the non-operational position to which he was re-assigned. Prior to the hearing, he advised that he would no longer be challenging his mandatory retirement, but was continuing to challenge the fact that he was receiving a lower rate of pay in his new position.
3For the reasons outlined below, I find that the fact that the applicant received a lower rate of pay in his new position is not discriminatory.
EVIDENCE
4The facts of this case were not in dispute and, accordingly, I heard no viva voce testimony. Counsel for the Toronto Professional Fire Fighters’ Association (the “Association”) took the lead in setting out the underlying facts, while the other parties augmented the factual record.
5The applicant turned 65 on January 24, 2008. Pursuant to clause 26.01 of the Collective Agreement between the City of Toronto (the “City”) and the Association in effect at the time, he was required to retire from his position in the Operations Division. This took effect on January 31, 2008. The Operations Division is the active fire-fighting or fire “suppression” arm of the TFS.
6Rather than retiring from the TFS at this point, the applicant opted to be re-assigned to another position, initially within the Communications Division and then as a Fire Prevention Inspector in the Fire Prevention Division. This re-assignment took place pursuant to clause 26.02, the relevant portion of which states:
… in the event an individual is required to retire as a result of the requirement set out above, but wishes to continue their employment past the age of 65, the employer will seek to re-assign the employee outside of the Operations Division, firstly to a comparable position within another division of the Toronto Fire Services, in accordance with the requirements of the Human Rights Code.
7The City and Association negotiated that any employee who had re-assigned in this manner would be eligible to continue receiving their pre-retirement rate of pay for a period of 30 months, even if the non-operational position paid less. This is set out in clause 26.03:
Employees re-assigned to a position with a lower rate of pay under 26.02 shall continue to receive the rate they were receiving prior to such re-assignment for a period of thirty (30) months immediately following the effective date of the re-assignment.
Following the expiry of the thirty (30) month period, the employee will then receive the rate applicable to their new position. The change in the rate of pay will be effective the first day of the pay period following the expiry of the aforementioned thirty (30) month period.
8The applicant does not take issue with the suitability of his re-assigned position or the duration of the period set out in clause 26.03. He does, however, take issue with the rate of pay he is receiving in his new position.
9In order to understand this issue, it is necessary to understand the hierarchy and corresponding levels of compensation within the bargaining unit on the operational side. Under the grid set out in Article 8 of the Collective Agreement, the pay scale for positions in the Operations Division is based on the salary of a 1st Class Fire Fighter. Third and 2nd Class Fire Fighters are paid at 80% and 90% respectively of the salary of a 1st Class Fire Fighter; a Captain is paid at 116% the salary of a 1st Class Fire Fighter and a District Chief 131%.
10The rate paid for the position of Fire Prevention Inspector is equivalent to the rate of a 1st Class Fire Fighter. At the time of his retirement, the applicant’s base position was that of Captain. Pursuant to the respondents’ interpretation of clause 26.03, he has received, and will continue to receive, a salary that is 16% higher than that of a Fire Prevention Inspector until July 31, 2010.
11The applicant had, over the years, periodically acted in the capacity of District Chief. In the year before his retirement, he acted in the capacity of District Chief on all but 8.5 of the days he worked. It is the applicant’s position that his base salary should have been that of District Chief, not Captain. The respondents point out, however, that there is no actual position of “Acting District Chief” and the applicant was only paid at the District Chief level when he performed those duties. When he was on vacation, taking lieu or sick days, or performing his base position of Captain, he was paid at the Captain rate.
12There are 64 District Chiefs within the Operations Division of the TPS. The applicant was on the promotional list to become a District Chief and was anticipating that a permanent position would become available around the time of his retirement. In fact, one such position opened up in April 2008, three months after his mandatory retirement from the Operations Division, which is one of the reasons he initially challenged his mandatory retirement.
DECISION AND ANALYSIS
13The applicant does not take issue with Article 26.03, but rather with the respondents’ interpretation of it. The respondents correctly argue that it is not the role of the Tribunal to determine whether the parties’ interpretation of the Collective Agreement is correct, or even fair.
14The respondents argue, further, that following the Tribunal’s decision in Espey v. London (City), 2008 HRTO 412, a mandatory retirement provision such as is found in clause 26.01 of the Collective Agreement is not discriminatory. They point out that in Espey, there was no equivalent of the re-assignment provision found in clause 26.02, which they argue can be seen as a form of accommodation of older fire fighters.
15The arbitral jurisprudence on the duty to accommodate workers is clear that there is no requirement to pay workers accommodated in alternative positions at the salary they were receiving prior to the need for accommodation. In Advance Engineered Products Ltd. and Advance Employees’ Assn. (Re) (2007), 160 L.A.C. (4th) 289 (W F.J. Hood), the Chairperson notes at paras. 42 and 43:
Generally speaking, the duty to accommodate requires the employer to find work or make work available for the disabled employee in the workplace, to the point of undue hardship, but it does not require the employer to pay more for this work than what it is worth. …
Author Barbara G. Humphrey, in the text Human Resources Guide to the Duty to Accommodate, (Aurora: Canada Law Book Inc., 2002) discusses wages and benefits regarding accommodation at p. 27
A common and potentially costly employer misconception is that the accommodation obligation includes an obligation to retain the wages and benefits that attach to the accommodee’s original job, where the employee is being accommodated in another job with different wages or benefits. Where the employee is assigned to a lower rated job as necessary to appropriate accommodation, the employer can pay the employee the rate attaching to that job. There is no obligation to retain a higher rate tha[n] attached to the employee’s regular job.
16Although this Tribunal has not yet issued a ruling on this particular issue, the Ontario Court of Appeal has provided some guidance on how to interpret the duty to accommodate found in s. 11(2) of the Code with respect to compensation issues in Ontario Nurses Association v. Orillia Soldiers’ Memorial Hospital, 1999 CanLII 3687 (leave to appeal to the S.C.C. denied). In that case, the Court of Appeal was hearing appeals from judicial reviews of three arbitral decisions. One of the issues before the Court was whether the failure of the respective employers to contribute to subsidized benefit plans for disabled employees during the period they were on unpaid leaves was discriminatory. In ruling on this issue, Rosenberg J.A. commented, starting at para. 54:
… Nevertheless, I do not read s. 11(2) as imposing upon the employer the burden of simply topping up the wages of the disabled employees. That, in my view, is not the type of accommodation contemplated by s. 11(1) and in fact is inimical to the principles underlying the Code. …
Simply topping up the wages of the disabled employees and paying them as if they are not disabled is nothing more than reverse stereotyping as described by Sopinka J. …
It may be that this goal [of full participation] cannot be fully accomplished and that short of undue hardship the employer, for example, can provide technical aids that will only partly bring the disabled employee to the same level as the able-bodied employees. However, in my view, that is all the Code requires the employer to do. The employer is not required to abandon the standard (assuming it to be a BFOQ) and pay the disabled employees according to some different standard. Obviously, it may do so voluntarily, but this is not what the Code requires. [Emphasis added]
17I do not understand the applicant’s position to be that the duty to accommodate requires that he receive the same level of compensation he received in his operational position. If that were the case, logic would dictate that the top-up not be time-limited. Rather his position appears to be that if such top-up is to be offered voluntarily, then it ought to be at the rate of the job he was primarily assigned to, not his lower-paid “base” position. The applicant was unable to point to any theory of discrimination to support this position, but rather suggested that fairness dictated the result he sought. The Tribunal does not, however, have the jurisdiction to inquire into the rightness or fairness of decisions in the absence of a violation of the Code.
18For all of these reasons, the Application is dismissed.
Dated at Toronto, this 15th day of June, 2010.
“Signed by”
__________________________________
Naomi Overend
Vice-chair