Ellis v. Petro-Canada, 2010 HRTO 2499

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Ellis and the Applicants listed on Schedule "A"

Applicants

-and-

Petro-Canada Inc.

Respondent

-and-

Ontario Human Rights Commission

Intervenor

interim decision

Adjudicator: Kaye Joachim

Date: December 16, 2010

TR-0584-09; TR-0585-09; TR-0617-09; TR-0618-09; TR-0623-09; TR-0626-09; TR-0632-09; TR-0652-09; TR-0688-09; TR-0695-09; TR-0699-09; TR-0712-09; TR-0716-09; TR-0759-09; TR-0763-09

Citation: 2010 HRTO 2499

Indexed as: Ellis v. Petro-Canada

APPEARANCES

Robert Waddell, Applicant ) Self-represented and as representative ) of all other applicants

Petro-Canada Inc., Respondent ) Susan Adam Metzler, Counsel

Ontario Human Rights Commission ) Anthony Griffin, Counsel Intervener )

INTRODUCTION

1These transitional Applications were filed under section 53(3) and 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").

2The applicants are former employees of Petro-Canada who worked at the Oakville Refinery. In September 2003, Petro Canada announced that it would be shutting down the Oakville Refinery and converting it to a multi-faceted terminal. The plant closed in late May 2005.

3By Interim Decision 2009 HRTO 1430, I determined these Applications would be consolidated and heard together. I have issued several Case Assessment Directions and three Interim Decisions dealing with various case management issues: 2009 HRTO 2028; 2010 HRTO 29; and 2010 HRTO 536. In 2010 HRTO 1882, I granted the Ontario Human Rights Commission's (the "Commission") Request to intervene in these proceedings.

4Some of the laid off employees applied for and were hired at the Oakville terminal or elsewhere in Petro-Canada. None of the applicants who applied were hired. They allege that their age and/or disability was a factor in the decision not to hire them elsewhere in Petro-Canada. Two applicants, Solski and Cassady, additionally allege sex and family status discrimination.

5The first applicant to file a complaint with the Ontario Human Rights Commission in February 2005 was the applicant, Robert Waddell. In June 2008, the other applicants also filed complaints.

6I directed that I would hear the evidence of the lead applicant, Robert Waddell, together with the evidence of the Commission investigator, and the respondent's evidence regarding the plant closure and the on-line application process, and issue an interim decision.

7I have concluded that the applicant Waddell has not established that the respondent discriminated against him on the basis of disability. The hearing will resume to hear the evidence of the remaining applicants. It remains open to me to find that the evidence regarding the applicants together demonstrates discrimination contrary to the Code.

The Four/Fifths Guideline

8The Commission relied upon the "four-fifths" rule. The "four-fifths" rule has its origins in the United States. The Equal Employment Opportunity Commission ("EEOC") Guideline on employee selection states that a "selection rate for any racial, ethnic or sex group which is less that 4/5 of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact." This Guideline is used in American jurisprudence when assessing whether employment tests are discriminatory: Williams, et al v. City and County of San Francisco (1983), 31 F.E.P. 885 (N.D. Cal.) ("Williams"). While the Court in Williams appeared to have adopted the 4/5 rule as the law, other courts have emphasized that it is an EEOC Guideline and is not itself dispositive of the question whether an employment test is discriminatory. Rather, the 4/5 rule is to be used along with other evidence to arrive at a conclusion as to whether there is discrimination: Wilmore v. City of Wilington (1982), 533 F. Supp. 844 (D. Del.).

9While the 4/5 rule is typically used in American jurisprudence to assess the discriminatory impact of a seemingly neutral employment test, its utility is equally valid when examining an employer's hiring or promotion process: Blake v. Mimico Correctional Institute (1984), 1984 CanLII 5043 (ON HRT), 5 C.H.R.R. D/2417 and National Capital Alliance on Race Relations v. Canada (Health and Welfare), 1997 CanLII 1433 (CHRT), 28 C.H.R.R. D/179 (C.HR.R.T).

The Commission Analysis

10A Commission investigator conducted an examination of the plant closure data that revealed that prior to the plant closure, there were 141 employees employed at the Oakville Refinery. Of these employees, 47 were, or had been, on the attendance management program or on long term disability, on modified duties, or self-identified as disabled.

11After the plant closure, 60 employees formerly from the Oakville Refinery remained employees of Petro-Canada.

12Of those 60 employees, 9 had been on attendance management or long term disability, on modified duties, or self-identified as disabled. The Commission describes this as a "deployment rate" of 45%. The Commission submits that at a minimum, a deployment rate of 80% of disabled workers would be expected if no discriminatory barriers were at play. Accordingly, the Commission concluded that discriminatory factors must have been at play.

13With respect to age, the Commission, using the same pre and post-plant employment figures, concluded that 31.21 % of workers 54 years of age or older were hired rather than the non-discriminatory expected rate of 24.96%. The Commission submitted that these statistics demonstrate that systemic barriers were at play which operated to the detriment of workers aged 54 and over.

The Use of the Attendance Management Program in the Calculation of Disability

14The respondent used an attendance management program ("AMP") to monitor employee absence. After a specified number of absences, employees were monitored for future absences and counselled. Excessive absenteeism could lead to termination if the respondent concluded that the employee was not capable of attending work regularly.

15The Commission submitted that it is reasonable to include employees who were in the AMP in calculating the number of employees with disabilities. Employees in the AMP had health-related (injury or illness) absences from work, which were of such frequency or duration that the employer put them in the AMP.

16The Commission noted that the Supreme Court has emphasized that the focus in disability discrimination analysis is on whether an individual's condition results in a disadvantage for that individual. A disability may be the result of a physical limitation, an ailment, a social construct, a perceived limitation, or a combination of all of these factors. The combined effect of these circumstances determines whether the individual has a disability: Quebec (Commission des droits de la personne et des droits de law jeunesse) v. Montreal (City), 2000 SCC 27, [2000] 1 S.C.R. 665 at paras 78-79. Thus, the Commission, submitted, a broken arm might not, considered in isolation, amount to a disability, but it is a disability if a person loses his job due to the absence caused by the broken arm. Similarly, employees who face escalating concerns and warnings because of their health-related absence from work have disabilities for the purpose of an informed discrimination.

17In addition, Commission policy states that minor illnesses or infirmities can be "disabilities" if the person can show that she was treated unfairly because of the perception of the condition: Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (2009).

Analysis of the Commission Statistics with Respect to Disability

18I have concluded that the statistics provided by the Commission with respect to disability and age are unreliable and should be given no weight.

19I adopt the statement from Blake v Ministry of Correctional Services et al (1984), 1984 CanLII 5043 (ON HRT), 5 C.H.R.R. d/2417 at para 20116:

For statistical evidence to be given any weight the raw data used as a basis must be reliable. The data must be collected competently, even if done by a lay compiler. The data must then be evaluated in accordance with recognized scientific principles and introduced in evidence though an expert witness.

20The Commission investigator conceded that she had no expertise with respect to statistics.

21I am not satisfied that the basic raw data upon which the investigator based her conclusions was reliable. In compiling the applicant data, the investigator included applicants who claimed to have made verbal applications. The respondent had set up an online application system and there is no basis for including applicants who did not apply through that system. Including persons who expressed a verbal interest in continued employment artificially inflates the applicant data.

22The investigator included in the "disabled" category all applicants who self-identified as having a disability. She had no way of knowing whether the successful candidates were persons who would also have self-identified as persons who had a disability. This also rendered the raw data unreliable.

23The investigator included in the disabled category all applicants who were being accommodated or on the AMP at the time of closure or at any time during their career. The respondent's data showed who was on AMP or modified work at the time of closure. However, the investigator had no way of knowing whether other employees had been on AMP or modified work in the past, and should therefore have been included in the category of "disabled" employee either in the pre-plant or post-plant data. This also rendered the raw data unreliable.

Analysis of Commission Statistics Regarding Age

24The raw data relating to age is more reliable than the data regarding disability. However, I am not satisfied that the investigator's analysis of the raw data is sound. A key feature of the analysis involves comparing the applicant data with the successful candidate data. In calculating the applicant data, the investigator included applicants who claimed to have made verbal applications. The respondent had set up an online application system and there is no basis for including applicants who did not apply through that system. This renders the applicant data unreliable.

25The respondent analysed the raw data using only those employees known to have applied through the online data system and compared those figures with the employees who successfully obtained positions. Using the respondent's analysis, 22 of 35 employees over the age 50 who applied for a position were successful, while 36 of 54 of them were unsuccessful, a 63% success rate for those over age 50 compared to a 66% success rate for those over the age of 50. The respondent also analyzed the data of successful applicants in five year intervals. This analysis demonstrated that using the 4/5 guide there was no demonstrable bias in hiring rates of employees aged 42 and older, 57 and older or 52 and older. In the category of applicants 57 years and over, 2% of candidates were successful, whereas 3% ought to have been hired if 4/5 of applicants over the age 57 had been hired. However, the number of workers in this age category was very small and may not have been statistically significant.

26I conclude that the statistical data does not establish a satisfactory evidentiary basis on which I am able to find a bias against older workers.

The Plant Closing

27In 2003 the respondent announced the closure of the Oakville Refinery. In May 2005 the Refinery closed. During those two years, the respondent took various steps, in conjunction with the unions, to ease the impact on employees including:

• Bridging of pension, post-retirement benefits for those age 50 and older who qualified;
• Establishment of a joint union/management adjustment committee;
• Establishment of a career centre with one-on one counselling;
• Access to the career centre;
• Workshops for career planning, resume writing, financial planning, interview techniques and retirement lifestyle;
• Jobs fairs for outside employers on site;
• An on-line application system for opportunities within Petro-Canada; and
• Time off to attend job interviews.

The applicant Robert Waddell

28The applicant Waddell was hired as an operator in the Oakville Refinery in 1979. In 1999 he began experiencing frequent episodes of acute bronchitis. He was diagnosed with bronchiectasis in July 2002. This resulted in a mild cough and sputum production, and frequent respiratory tract infections. In June 2004 he was excused from one of his duties, responding to Fire Alarms as a fire crew member, as a form of accommodation. His employment was terminated on May 20, 2005 as part of the plant closing. There is no dispute that the applicant was a person with a disability who was on the respondent attendance management program at the time of the plant closing.

29Mr. Waddell applied for five positions using the on-line application system and was unsuccessful. He asserts that discriminatory factors must have been at play.

30In order to establish a prima facie case of discrimination in a hiring situation, the applicant must establish that he was qualified for the position that he applied for and that a candidate no more qualified than himself was hired who did not share the characteristic of the applicant (not disabled). The evidentiary onus then shifts to the respondent to establish a non-discriminatory reason for hiring the other candidate.

31The applicant applied for four office positions: SOP Specialist, Fleet Co-ordinator, Distribution Operations Co-ordinator, and Supervisor Customer Service Package Goods.

32Given the passage of time, the respondent has been unable to provide the resumes of the successful applicants for these positions. However, the applicant had no office work experience, and had worked his entire working career as an operator in the Oakville Refinery. Accordingly, there is no basis to believe that he was as qualified as the successful candidate for these positions. Therefore, I find that Mr. Waddell has not established that a prima facie case of discrimination with respect to these positions.

33Mr. Waddell also applied for one of twelve posted Terminal Technician positions in February 2005. As an operator he had the basic qualifications for this position and he was interviewed and completed a mechanical aptitude test.

34Approximately 60 candidates applied. The respondent no longer has the resumes of the successful candidates.

35One of the successful candidates was Mike Watts, also a former refinery operator. Mr. Waddell testified that Mr. Watts was several levels below him on the LORO Progression Plan and did not hold a compressor ticket and was therefore not as qualified as himself. Another successful candidate, Phillip Bullock, had less seniority than Mr. Waddell and was, in his view, less qualified.

36A stated requirement for the position was fire crew or marine response and outside work. The applicant was medically restricted from working on the fire crew or from working outside in extreme temperature.

37The evidence was not sufficient for me to conclude that the position could not have been modified to accommodate these restrictions. Therefore, I will assume that Mr. Waddell was qualified for one of the twelve positions.

38I heard no evidence about the competition process, and given the passage of time, I draw no adverse conclusion from this. However, it leaves me with the task of assessing all the circumstantial evidence to determine whether the Mr. Waddell's disability may have played a role in the decision not to hire him for the position of Terminal Technician.

39Mr. Waddell was ranked as a lower performing employee in 2004 and 2005 performance assessments and was rated as not recommended for retention in 2005. As discussed below, the striking correlation between those who were hired and their rating on the ranking list leads me to conclude that the ranking list played a role in the hiring decisions. Mr. Waddell asserts that his absenteeism level and placement in the AMP affected his performance assessments and his ranking and this amounts to discrimination on the basis of disability.

Job Performance Appraisals

40Performance appraisals of unionized staff had been discontinued in the early 90's although the company continued to assess non-unionized staff. When Mr. Ferris assumed the role of Production Manager in 2002, he reinstated performance reviews of unionized employees. Using the same appraisals used for salaried employees, workers were identified as top performers, fully successful or needs improvement. Mr. Ferris concluded that the initial 2003 performance appraisals were not reliable as an excessive number of employees were rated as high performing operators by supervisors. Mr. Ferris then issued clear instructions about the number of employees who should be assessed in each category. Only 15% of employees were permitted to be rated as top performers, 70% were permitted to be rated as fully successful and 15% were expected to be rated as needs improvement.

41Mr. Waddell asserts that his 2004 and 2005 performance assessments (fully satisfactory) were unfair and inaccurate and contributed to his low placement on the ranking list. He also asserted that his attendance, and therefore his disability, was a factor in his performance assessments and his placement on the ranking list.

42Mr. Waddell submitted that Nadia Tataryn testified that attendance was a factor in assessing job performance. I have reviewed my notes of her evidence and I do not agree that was her evidence. The evidence of both Tataryn and Ferris was unequivocal that placement on the AMP was not a factor in performance assessment or placement on the ranking list. Their evidence was unshaken on cross-examination and I accept their evidence on this point. This is not to say that knowledge that an employee had a poor absentee record might not have played a subconscious role in assessing a worker's' performance.

The Ranking List

43Mr. Ferris testified that a ranking list of unionized employees was prepared in 2005 in anticipation of the refinery closing. The company anticipated that up to 75 positions for operators would become available across Petro-Canada, and that the laid off refinery workers at the Oakville Refinery would apply for them. The company prepared a list of all workers and rated them as "should retain" "strong consideration to retain" "possibly retain and "not recommended." The list also included the results of the latest performance assessment. Mr. Ferris testified that the ranking list would be used if an internal manager called for a short list of employees to interview in situations where there were a large number of job applications. Mr. Waddell was assessed as fully satisfactory but rated as not recommended for retention. Some employees who were not recommended for retention were in fact hired and some persons recommended for retention were not successful. However, a large number of the workers who were successful in the 60 positions that were actually available after the plant closing were rated as "should retain" or "strong consideration to retain." This indicates to me that the ranking list had an influence in who was hired.

44The evidence of Mr. Ferris, the production manager, and Mr. Barnhart, one of the area supervisors who conducted some performance appraisals, was that age, disability, gender and family status played no role in the ranking. In particular, whether or not an employee required modified work or was on the AMP was not a factor in the ranking. While I accept their evidence that they did not consciously factor in an employee's placement on AMP or modified duties in performance assessment or the question of retainability, I am mindful that these factors may have unconsciously played a role in assessing a worker's productivity or attractiveness for retention.

45When interviewed during the Commission investigation, John Ferris stated that if asked by a prospective employer about absenteeism, he would indicate that the employee was on the AMP but would not disclose the specific medical condition. At the hearing, Mr. Ferris clarified that he would only disclose AMP status in response to internal inquiries for employment, but not to external employers. Mr. Barnhart confirmed this evidence.

46I agree with the applicant that being told that an employee was on AMP might negatively impact on their chance of being hired internally. However, Mr. Ferris and Mr. Barnhart both testified that they did not receive any inquiries about Mr. Waddell Therefore I find that Mr. Waddell's placement on the AMP was not disclosed in the competition process for the Terminal Technicians.

47Mr. Waddell testified with respect to various incidents that occurred in the lead up to the plant shutdown as demonstrating a bias against him in particular and/or a bias against persons with disabilities.

The AMP

48Mr. Waddell testified that he experienced the attendance management program as a threat to his employment. I made clear at the outset of the hearing that I did not view my task as assessing whether the attendance management program itself was a form of discrimination on the basis of disability, i.e. whether persons with disabilities were subject to greater scrutiny and/or different work expectations and requirements as a result of their disability.

49Mr. Waddell testified that the AMP was applied to him incorrectly or unfairly. When an employee came back to work and was immediately absent again for the same reason, this would count as a single incidence of absence. He pointed to several incidents when he believed that his subsequent absence should have been viewed as a single incident rather than as a separate absence. My task is not to determine whether the respondent properly applied its attendance management system unless a factor leading to the improper application was discriminatory. It is sufficient for me to note that the examples which Mr. Waddell pointed out could give rise to a reasonable difference of opinion and do not indicate any form of bias against the applicant.

50Mr. Waddell testified that his early performance reviews were generally positive. However, his performance reviews in the 1980s demonstrate a need for improvement and the potential to become a good employee. There are no available reviews after 1991 until 2003.

51In October 2003 the applicant was assessed very positively by shift supervisor Stu Nelson. However, the documentary evidence demonstrates that an large number of supervisors were rating employees highly at that time and they were instructed to redo the assessments with numerical restrictions on how many employees could be rated as top performers, full satisfactory, and needs improvement. Many workers were likely to have experienced a drop in assessment following these instructions.

52When next assessed by Bob Barnhart in August 2004, Mr. Waddell received what he perceived as a negative performance evaluation (although he was assessed as fully satisfactory). He believes that the negative performance evaluation was part of the company's plan to have him placed low on the ranking list so as to ensure that he would not be hired for the available internal positions.

53Mr. Waddell testified that he was told by colleagues that Mr. Barnhart expressed displeasure about an absence in July 2004. Another supervisor, Mr. Rattray, questioned his absence as suspicious although the applicant presented a medical note.

54In August 2004 Mr. Waddell was placed on Level 4 of the AMP and advised that future absences may result in termination. Also in August 2004 the company investigated whether there was a pattern of absence after overtime work and attempted to place a restriction on the applicant from working overtime.

55In December 2004 Mr. Waddell was asked to do work outside his restrictions (clear a drain line at the bottom of a highly toxic drum, and assigned to work outside in the cold).

56I understand Mr. Waddell's perception at this time was that he was being targeted unfairly and that his legitimate absences were being viewed suspiciously and used to assess his performance negatively. I am alive to the possibility that Mr. Waddell's poor attendance might have subconsciously played a role in his performance assessment, and thus indirectly contributed to his placement on the ranking list as "unretainable."

57The performance assessments were not conducted on all employees. Mr. Waddell personally spoke to colleagues in his area who told him that they had not been assessed. Also, the evidence of the respondent witnesses confirmed that not all employees were assessed, but they were nonetheless ranked. I agree with the applicant that the failure to assess all remaining employees may have affected the quality and usefulness of the respondent's ranking list.

Request for a Form 8043

58Mr. Waddell experienced a health related absence shortly before he was given a lay off notice. In accordance with usual practice, he submitted a medical note indicating why he had been absent. The Heath Centre requested that he complete a form 8043 (short term disability form). It was not usual practice to require a form 8043 upon a short absence from work.

59The respondent explained that "due to the sensitivity of the situation" it required the form in order to satisfy itself that Mr. Waddell was able to return to work and/or required any accommodation in order to return to work. The evidence established that the company understood that it could not issue a termination notice to an employee who was absent. Employees who were absent had to be monitored to determine whether and when they were able to return to work. An employee who was able to return to work could be issued with a termination notice. If any employee was unable to return to work, then they would be monitored to determine if they became eligible for long term disability. An employee on long term disability could not be terminated. It is understandable that the respondent was monitoring employee absences closely as the plant closing date approached. I do not find that it was discriminatory for the employer to do so.

Improper Return to Work in May 2005

60Mr. Waddell testified that he believed that he should not have returned to work in May 2005 because the air quality in the control room where he worked had not been tested, and the employer falsely advised his doctor that it had been. Mr. Waddell was on authorized sick leave since April 28, 2005 pending an air quality test of his work environment. On May 9, 2005, a hygiene report was prepared and provided to the applicant's physician who then authorized the applicant's return to work. Mr. Waddell returned to work. The evidence does not support the applicant's unsubstantiated belief that the hygiene report was deliberately falsified to coerce him back to work.

Disclosure of AMP Information and Ranking List to External Employers

61Mr. Waddell testified that he believed his place on the ranking list and his absenteeism were discussed with potential external employers, such as Biox. The basis for his belief is that he was told by a Biox representative that he would be contacted for an interview but he was not. He testified that persons who were interviewed were ranked as "retainable" whereas persons such as him and others who were not interviewed were ranked as "not retainable." This evidence does not demonstrate that the respondent disclosed to external employers he was on the AMP or was not recommended for retention. The unshaken evidence of Mr. Ferris was that external employers were not given any information about a worker's placement on AMP or place on the ranking list.

Alleged Discriminatory Comment

62Mr. Waddell testified that during a Commission interview when Bob Barnhart was asked why Frank (a colleague) was ranked as "not recommended", Mr. Barnhart immediately responded "Frank's too old." Mr. Waddell's wife, who was present at the meeting, also testified that she heard this comment. The Commission investigator testified that she did not hear this comment and Mr. Barnhart testified that he did not make this comment. Respondent's counsel testified that Mr. Barnhart didn't make this comment.

63I am not satisfied that Mr. Waddell has established that this comment was made. In light of the contradictory evidence of the witnesses, and in particular the Commission investigator's denial she heard the comment, I am not satisfied on a balance of probabilities that the comment was made. It appears to me that, had the comment been made, Mr. Waddell would immediately have said something to that effect during the interview and there would have been some notation by the investigator of the alleged comment.

Conclusion on Disability Discrimination

64In summary, I am satisfied the evidence supports finding Mr. Waddell was qualified for one of twelve positions of Terminal Technician but was not successful in obtaining the position. Either the applicant was not one of the twelve most qualified candidates from the pool of 60 applicants or discriminatory factors were at play.

65I have accepted that the recommendation on the ranking list as to retainability likely played a role in the hiring. Mr. Waddell was not recommended for retention. Did disability play a role in his rating on the ranking list? I accept that there is no evidence of a conscious or deliberate intent by the respondent to consider disability, the need for modified duties or placement on the AMP in conducting performance assessments, or in placement on the ranking list, although I agree these factors may have subconsciously played a role in the assessment of a worker's productivity.

66At the end of the day, I am unable to conclude that the applicant has established on a balance of probabilities that his disability played a role in his performance assessment or placement on the ranking list and therefore indirectly played a role in his failing to be hired as a Terminal Technician. Although I recognize the possibility that disability may have played a subconscious factor in the performance rating and ranking, this mere possibility does not rise to the necessary standard of proof on a balance of probabilities. I am leaving open the possibility that this conclusion may change for Mr. Waddell or for the other applicants upon hearing the evidence of the remaining applicants.

Miscellaneous Arguments

67Mr. Waddell noted that the respondent did not expressly advise employees of the obligation upon the company to accommodate workers with disabilities. There is no obligation on an employer to advise employees of this statutory obligation.

68Mr. Waddell gave examples of the respondent bringing back employees from long term disability prior to the plant closing. Assuming without concluding that this was a practice of the respondent, I do not accept that this demonstrates a bias or negative attitude towards employees with disabilities. This does not demonstrate any bias against persons with disabilities, nor an intention to discriminate against those employees brought back to work.

69Mr. Waddell believed that it was a breach of the Code for the respondent not to give disabled employees preferential treatment in internal hiring, as it would be harder for them to compete. There is a difference between anti-discrimination legislation and employment equity legislation. The Code is an anti-discrimination statute. It prohibits employers from discriminating against persons with disabilities. However, it does not require employers to take special measures to hire or retain persons with disabilities. The respondent did not breach the Code in failing to take special measures to assist workers with disabilities to remain employed.

70Mr. Waddell believed that the respondent ought to have permitted more employees to retire early voluntarily, thereby creating more vacancies for those involuntarily retired. The respondent had no obligation to organize the plant closing in a manner to minimize the layoff of long term employees.

71Mr. Waddell testified that the respondent offered a Cash Rewards Program to employees who referred candidates who were subsequently hired by the respondent. He believed that this program to recruit external candidates was unfair to the laid off workers. The respondent confirmed the existence of the Cash Rewards Program as a recruitment tool to assist in recruiting specialized workers. The Cash Rewards Program was not used to recruit operator level positions. I find that this program is irrelevant to my analysis.

72Mr. Waddell testified that it was unsafe for him to work at the plant and that the employer should have placed him on long term disability. He relies upon a letter from Dr. Walsh, dated August 9, 2004, which stated that "it is possible that the petroleum bi-products at Petro-Can have contributed to his airways disease. It would probably be in his best interest if he did not work in this environment in the future." In another letter dated January 31, 2005, Dr. Whitehead wrote to Dr. Walsh "it would be in his best interest not to work in an environment with oil products or pollution. These environmental conditions seem to exacerbate his underlying condition". (This document, although not addressed to the company, did find its way into the Health Centre medical file). Mr. Waddell also pointed to the medical evidence that demonstrated that his bronchial condition improved after he was removed from the plant. He asserts that the company's failure to recognize that it was unsafe for him to work in the plant resulted in the termination of his employment (i.e. he should have been on long term disability).

73It is not my task to determine whether Mr. Waddell was capable of working regularly and safely at the plant or whether he ought to have applied for long term disability benefits. The reality is that, at the time of his termination, Mr. Waddell was employed. It is not a form of discrimination to retain an employee with a high absenteeism rate nor is the employer obliged to advise an employee to seek long term disability benefits.

74Alternatively, Mr. Waddell questioned whether the respondent should have accommodated him with alternative employment in the plant or the organization in July 2002 when he was diagnosed with bronchiectasis. Mr. Waddell submitted that the employer ought to have realized at that point that he could not safely return to the plant and he ought to have been retrained to work in another capacity and in another area of the organization.

75Accordingly, his attendance would have improved and he would not have been placed on the AMP. The employer's obligation to search for alternative employment arises once the employee is unable to perform the essential duties of his or her position. The respondent did not perceive this applicant as being incapable of performing the essential duties of his position, and therefore the question of alternative employment never arose. I note that the applicant's family doctor did not formally recommend that Mr. Waddell be removed from his work environment or request alternative employment. In any event, I cannot speculate on how events would have transpired if Mr. Waddell had been moved to an alternative position earlier in his career. He may or may not have been on the attendance management program and he may or may not have been successful in finding an internal position in the company. None of these speculations assist me in determining whether he was discriminated against at the time of his termination in May 2005.

Applicant's Survey Evidence

76After learning of the four/fifths rule from the Commission investigator, Mr. Waddell attempted to survey his colleagues with respect to various matters relating to the complaints. I ruled that the surveys would not be admitted as evidence in this hearing or given any weight. My reasons for so ruling are these. Mr. Waddell has no expertise in conducting surveys and is not an independent or neutral investigator. The nature of the questions posed and the ad hoc way in which he sought out persons to complete the survey rendered the information obtained of no value.

Continued Proceedings

77The Registrar-Transition will contact the parties to schedule further dates for the hearing.

78Some of the applicants (who have not yet testified) apparently did not apply through the online system, but applied verbally or by handing resumes to management. I accept the respondent's evidence that it only considered applications received through the on-line application system and I find that there was nothing inappropriate in this. Therefore, any applicant who did not apply through the online application system may experience great difficulty in establishing that they were discriminated against in being denied a position for which they did not formally apply.

79I am seized.

Dated at Toronto, this 16th day of December, 2010.

"signed by"__________

Kaye Joachim Member