Thompson v. Bellwyck Packaging Solutions, 2010 HRTO 1430

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elroy Thompson Applicant

-and-

Bellwyck Packaging Solutions Respondent

DECISION

Adjudicator: Judith Keene Date: June 29, 2010 Citation: 2010 HRTO 1430 Indexed as: Thompson v. Bellwyck Packaging Solutions

Appearances by

Elroy Thompson, Applicant ) On his own behalf Bellwyck Packaging Solutions, ) Michael Failes, Counsel Respondent )

1This is a Decision in respect of an Application filed on May 22, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges discrimination in employment on the basis of colour.

2I have decided that the applicant has not proven a breach of the Code as alleged. My reasons follow.

THE ISSUES

3The applicant has raised two issues for the purposes of the Code: a failure to promote and a layoff, both of which the applicant alleged were influenced by his colour.

4The respondent denied any discrimination in promotion or layoff decisions, and asserted that the applicant was offered a recall to employment which he refused.

THE EVIDENCE

5I heard testimony from the applicant, who called no other witnesses, and from the respondent’s witnesses, Craig Colterman, (the applicant’s immediate supervisor at the relevant times), Jerry Malfara, (the respondent’s Director of Operations and Mr. Colterman’s supervisor) and Martha Higginson (responsible for Human Resources at the plant). The parties agree in respect of many of the facts. Where there is disagreement, I indicate it below.

BACKGROUND

6The applicant self-identifies as a Black man of Caribbean descent. It is undisputed that the applicant was employed with the respondent from November 4, 2002 to January 22, 2009. He performed his job well and the respondent had no reason to discipline him.

7Prior to June 20, 2006, the applicant expressed concern to Craig Colterman that he felt he was not getting promoted to second pressmen because of racial discrimination in the workplace. The respondent held a meeting to address the applicant's concern.

8The applicant stated that he was assured that the next hiring for a second pressmen would be decided on seniority. At that time, the applicant and one other employee (RL) had the most years of experience compared to the current staff members. The minutes of the meeting dated June 20 2006, signed by the applicant and submitted in evidence, express the plan slightly differently. They state “Elroy was informed that all of the current feeders all (sic) are capable and when the time comes, the decision will most likely be based on seniority for which Elroy expressed no issues”. The minutes also state “no discrimination has occurred”. The applicant was employed as a feeder. Feeders are paid less than second pressmen. The applicant occasionally carried out the duties of a second pressman when other employees were on vacation or sick leave, during the term of his employment. There was no dispute that the applicant had made it understood in 2006 that he preferred day shifts only.

9The respondent has three presses; the eight colour press, the six colour press and the five colour press. Mr. Malafara testified that a job as feeder on the six-colour press would be considered a step up from working on the five-colour press, and that being a feeder on the eight-colour press would be a step up from that.

10It was undisputed that there was a ranking in the workplace involving the three presses, as well as the positions of first and second pressman and feeder. The eight colour press was apparently the busiest and its crew was headed by “the best pressman” employed by the respondent. The first pressmen of the eight colour press will be referred to here as BM. BM was acknowledged by most people as somewhat difficult to get along with; Mr Malfera described him as “tough as nails” but added that his attitude did not get to the point of being abusive, and that every second pressman BM has trained goes on to be a first pressmen.

11The applicant agreed that BM was difficult; he described him as a person who “talks down to everybody… is nasty to work with… thinks he's God”. Earlier in his career with the respondent, the applicant worked on BM’s crew, and he asked to be transferred and this request was accommodated.

12The six colour press was the newest press. It was fully automated; the technology was different from the other two presses. Employees had to train in Chicago before operating the six colour press. Sometime after the 2006 meeting in which the applicant’s complaint of discrimination was discussed, Mr. Malfera suggested to the applicant that he be trained on the six colour press as it is new technology, but the applicant did not wish to do that.

THE PROMOTION ISSUE

13The applicant alleged that, despite openings for a second pressmen between July 2006 and January 2009, he was not promoted. The applicant was unable to remember who might have been promoted during the period of a year prior to the date of his Application, but after some discussion, he agreed with the respondent’s suggestion that there were only three possibilities for discussion.

14The first was GP. The respondents gave evidence, that was not disputed by the applicant, that this individual was hired from a competitor in which he had filled a First Pressman job. GP was hired to take a First Pressman job with the respondent, but was placed temporarily in a Second Pressman job “because there was no feeder ready to work with him and so he could get familiar with the operation”.

15The second was RL: this individual was not laid off with the rest of his shift, but was promoted to Second Pressman on the five-colour press day shift. This individual was agreed by both parties to be a man of the same colour and place of origin as the applicant.

16The third was GC, who was promoted to Second Pressman on the eight-colour machine in April, while the applicant was on lay-off. He had been working with the crew of the eight colour machine, was willing to work afternoons and was willing to work with BM.

17In the light of the above evidence, I cannot conclude that his colour was a reason for the applicant’s failure to receive a promotion during this period.

THE LAYOFF, RECALL AND TERMINATION

18The applicant did not dispute the respondent’s evidence that the layoff was occasioned by a downturn in the economy. The applicant was laid off on January 22, 2009. He alleges that three white employees who had less experience were not laid off. He could not identify all of these; the respondent gave evidence concerning two of them.

19The respondents deny that colour played any part in their layoff decisions. To respond to the reduction in work, the respondents eliminated one shift on the five-colour press (the press on which the applicant worked) and one on the six-colour press. This allowed the respondents to lay off two feeders. Nine other employees were also laid off.

20The evidence of Mr. Malafara as to how employees were selected for layoff was that the criteria included performance, and “what made sense”. In respect of the latter criterion, the afternoon shift on the six colour press was the least productive, and all of these employees were laid off. Part of “what made sense” also included the experience and qualifications of various employees, their ability to undertake a variety of functions, their availability and willingness to work specific shifts, and the respondent’s wish not to disrupt existing work crews who were functioning well, if that could be avoided.

21The respondent also laid off the afternoon shift on the five colour press. In doing so, the respondent made an exception for RL. The applicant, who was on day shift on the five colour press, was laid off and RL replaced the applicant. As noted above, RL’s colour and place of origin were the same as that of the applicant. The respondents explained that RL had previously been promoted to second pressman, performed better and had been hired a month before the applicant.

22In respect of two white feeders not laid off, the respondent did not consider “bumping” them to keep the applicant. One feeder worked on the six colour press, and the applicant was not trained on the six colour press. Nor was transferring the applicant to the eight-colour press to replace that feeder an option; the applicant admittedly did not wish to work with BM.

23The respondents have credibly established non-discriminatory reasons for the layoffs that were not disputed by the applicant. The applicant has not put forward evidence that would lead me to believe on a balance of probabilities that a reason prohibited by the Code was among these reasons.

24The applicant was laid off on January 22, 2009. From April 20, 2009 to June 11, 2009, the applicant attended a course in which he received a “CZ license”. He has been seeking new employment since May 2009 but had been unable to secure a new job by the date of the hearing.

25The benefits of the laid-off employees were maintained, and they were sent a letter advising them that they were likely to be called back as soon as possible and that they would get advance notice of four days; a letter which the applicant admitted he had received.

26The applicant was recalled to work on Friday, April 24, 2009. Mr. Colterman called him and told that he should return to work the following Monday. The parties agree that the applicant asked into what position he would be were returning, and was informed that it would be the same position from which he was laid off. The parties also agree that the applicant said that his course did not end until June 11.

27The parties disagree as to the respondent’s reaction and subsequent communication. The applicant stated that Mr. Colterman asked if he was coming back, that he stated that he was, and that Mr. Colterman said something to the effect of “ when you are ready give me a shout”. He denied that Mr. Colterman had asked him to state a date on which he would be ready to return. He indicated that the next communication he received from the respondent was a letter dated May 6, 2009 indicating that he had declined to return from layoff, and that his employment was terminated.

28Mr. Colterman stated that the applicant had refused the call back to work, and that when he asked during the call on the April 24th if the applicant would be returning after the course, he said no. He e-mailed Ms. Higginson that day to confirm this; the e-mail was submitted in evidence.

29Ms. Higginson testified that, after she received the e-mail, she called the applicant, reaching him on April 28. He told her that he could not come in to work as he was in school until mid-June, and that he did not wish to quit his course and return when he might be laid off again. She told him that this would be unlikely as the respondent was getting into a busy period. Ms. Higginson testified that she was left with an unclear impression as to whether the applicant intended to return to work but it appeared likely that he would not; during the conversation, he stated that the layoff had been discriminatory and unfair, and that he had to do what was in his best interest and that of his family. The call ended with the applicant hanging up without saying goodbye.

30On May 1, 2009 Ms. Higginson was contacted by e-mail by the fund manager for the group RSP plan concerning a request by the applicant to withdraw contributions that he had made. She telephoned the applicant to tell him the rules about withdrawals and transfers of funds. Once again, he mentioned his failure to be promoted and that he had to do what was in his best interest and that of his family. Ms. Higginson concluded that the applicant had resigned and sent the letter dated May 6, 2009 to confirm this.

31Mr. Malafara testified that he received a phone call from the applicant on May 7, 2009. He stated that the applicant raised his failure to receive a promotion and that he told the applicant that second pressman positions had been reduced to the point that there were only two, with both of these being on the eight colour press from which the applicant had asked to be transferred. He stated that the applicant requested severance pay, but he told him that this would not be forthcoming, because the respondent had asked the applicant to return to work.

32On cross-examination, the applicant was asked about various phone calls between himself, Ms. Higginson and Mr. Malafara. He repeatedly stated that he was unable to remember the content or detail of any calls, although he did not deny that they had occurred.

33In assessing credibility and coming to a decision on a civil burden of proof I am guided by the decision of the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence in the case, and assess the impact of any inconsistencies on questions of credibility and reliability pertaining to the core issue in the case. I have also considered some of the factors reviewed in Ornelas v. Casamici Restaurant, 2010 HRTO 1078.

34One of the factors reviewed in Ornelas is plausibility. The applicant’s assertion that his supervisor simply accepted that he could not say when he would return to work and that he should let him know is unlikely in the circumstances, and I conclude that the respondent’s evidence is preferable on this issue.

35It is also true that an individual is not likely to quit a job before he has another job to go to. However, it appears that the applicant was in the process of obtaining qualifications for different work. It also appears that he was very angry about his failure to be promoted, which he believed to be due to discrimination. Finally, he attempted to transfer funds from his defined benefit plan prior to receiving the letter confirming the termination of his employment, an action consistent with the position that he had resigned. I conclude that the applicant did in fact resign prior to May 6, 2009.

36Based on the evidence before me, I find that the respondent did not violate the Code.

37The Application is dismissed.