Human Rights Tribunal of Ontario
B E T W E E N:
James Lee Applicant
-and-
Peachtree Marketing Inc. Respondent
DECISION
Adjudicator: Judith Keene Date: July 5, 2010 Citation: 2010 HRTO 1460 Indexed as: Lee v. Peachtree Marketing
Appearances
James Lee: On His Own Behalf Peachtree Marketing Inc.: Melodie Gula, Representative
This is a Decision in respect of an Application filed on August 25, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
The applicant's documentary evidence, which was uncontradicted, indicates that he has had a lengthy career with senior positions in business, in Canada and abroad. He was hired by the respondent at the age of 72 in November, 2007. His employment was terminated on July 29, 2009. His Application alleges discrimination in employment on the basis of age.
I have decided that the applicant has not proven a breach of the Code as alleged. My reasons follow.
Preliminary Issue
Both parties were later than allowed by the Tribunal's Rules of Procedure in exchanging and filing documentary evidence and statements identifying the witnesses they intended to call and what evidence was expected from these witnesses. I issued a Case Assessment Direction referring the parties to their obligations under Rules 16 and 17.
The applicant requested an adjournment to allow a witness, (WCH) to attend the hearing. The applicant's statement of the witness's expected evidence, in its entirety, was "[WCH] will provide some very important [testimony] on James Lee's work performance".
In its Response to the Application, the respondent noted that the applicant had been disciplined because of his "attitude" toward his supervisor, and alleged problems with the applicant's "focus" on this work, but stated that the main reason for the layoff was lack of work. That position was modified prior to the hearing. The respondent's statement of expected evidence was focused solely on its stated reason for the layoff; an alleged reduction of work due to an economic downturn. The respondent's position, confirmed at the hearing, was that it did not deny the applicant's ability to do his job and did not intend to call evidence in respect of his performance.
Pursuant to an Interim Decision, 2010 HRTO 1139 [CHRR Doc. 10-1346], the applicant was denied the adjournment. The Interim Decision was made on the basis that the expected evidence was not relevant to the matters at issue in the hearing.
The applicant did not attend the hearing with witnesses, although he had indicated in his materials filed that he intended to do so. When I inquired, he said that he had been prevented from bringing witnesses. However, on further inquiry, the applicant admitted that he had understood the instructions included in the Interim Decision concerning parties' responsibility for calling their own witnesses, by summons if necessary. The applicant stated that he had decided not to summons witnesses who were present employees of the respondent, as he felt that they would be reluctant to give evidence.
Later in the hearing, the applicant also made a statement to the effect that WCH would have given evidence that he (WCH) had suffered discrimination by the respondent on the basis of age. The respondent's representative objected to this allegation, which had not been made in any of the applicant's filed materials. When I asked the applicant to state clearly what he would expect this witness to say, he stated that WCH had asked for a leave of absence, that it had been denied, and that he had resigned after the denial, as he felt that his years of service had warranted more consideration from the respondent.
Even on the assumption that WCH might say, and maintain under cross-examination exactly what the applicant expected, the connection between this allegation and that made by the applicant is not compelling. I directed the applicant to proceed with his evidence.
THE EVIDENCE
I heard testimony from the applicant, who called no other witnesses, and from the respondent's witnesses, Vibert Vieira (the respondent's Vice President of Finance), and from Bob Lee, (the respondent's Chief Executive Officer and the brother of the applicant) The parties agree in respect of some of the facts. Where there is disagreement, I indicate it below.
Bob Lee gave evidence that the applicant was looking for employment in November, 2007. Bob Lee asked the respondent's production manager (AC) whether there might be an opening in the framing department. AC agreed to hire the applicant. The applicant was hired.
The applicant referred to several incidents of disagreement with his supervisor, whom he alleged made false accusations against him concerning aiming an air gun and throwing a frame, and had unreasonable expectations as to rate of production.
The applicant also cited discriminatory societal presumptions concerning older workers. In view of the fact that the applicant was self-represented, I asked him if he could give any examples of behaviour in the workplace that made him think that age was a factor in the termination of employment. He could give only one; the respondent's "failure to reply to the accusation" made in his Application. He specifically stated that no one had said anything during the course of his employment that made him feel that his age was a factor that counted against him.
In response to the respondent's stated reason for the termination, the applicant stated that he had heard from someone at the workplace that he had been replaced by a younger worker soon after he was fired.
The respondent's uncontradicted evidence was that the applicant was hired in 2007 to cut metal frames. An economic recession and the loss of two major accounts cut back the volume of the respondent's work by over $300,000. Metal frames (as compared to wood) were no longer selling; the respondent's metal frame work had dropped over the years from 75% of sales to less than 10% at the time the applicant's employment was terminated.
The respondent's response to the downturn in business included instituting compulsory "rolling" four-day weeks for the first time in its history, and laying off three other workers. Mr Vieira indicated that the only other cutter in the department who might have been laid off instead of the applicant was experienced in cutting metal frames, and had more experience than the applicant in cutting wood. This worker could therefore both deal with the orders for wood frames and handle the few metal-cutting orders that came in. Under cross-examination by the applicant, Mr. Vieira maintained that there are significant differences between the two jobs.
Mr. Vieira denied that the applicant had been replaced at all, much less soon after the termination. He stated that the respondent hired one part-time cutter in February of 2010 and that was for wood frames.
In the light of the above evidence, I cannot conclude that his age was a reason for the termination of the applicant's employment. The respondent has credibly established non-discriminatory reasons for the termination, and has credibly rebutted the applicant's claim that he was immediately replaced by a younger worker.
Had WCH attended and given the evidence expected by the applicant, I do not think my conclusion would have been different. A failure to allow a leave of absence for a senior worker has, at best, remote circumstantial relevance, and cannot substitute for evidence supporting the applicant's own allegations.
Based on the evidence before me, I find that the respondent did not violate the Code.
The Application is dismissed.
Dated at Toronto, this 5th day of July, 2010
"Signed by"
__________________________________
Judith Keene
Vice-chair