HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Asmond Tulloch
Applicant
-and-
Phelps Apartment Laundries Ltd.
Respondent
DECISION
Adjudicator: David A. Wright
Date: March 12, 2010
Citation: 2010 HRTO 550
Indexed as: Tulloch v. Phelps Apartment Laundries
APPEARANCES
Asmond Tulloch, Applicant ) On His Own Behalf
Phelps Apartment Laundries Ltd., Respondent ) Charles Chang and ) Robert Drake, Counsel
[1] The following Decision was delivered orally at the hearing held on March 12, 2010:
This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant was terminated from his employment with Phelps Apartment Laundries Ltd. on June 2, 2009. He alleges that his race, colour, and creed were factors in the decision to terminate his employment. The applicant self-identifies as black and a Seventh-Day Adventist.
The Tribunal heard evidence from the applicant and from Don Neufeld, the respondent’s Manager, Eastern Region, who made the decision that the applicant’s employment would come to an end.
Mr. Neufeld testified that due to a downturn in business, the company had to save costs and that he decided that, in the service department, the employment of one senior technician would be terminated. Two employees in the warehouse were also laid off. Among the senior technicians, Mr. Neufeld chose the applicant, primarily because he had the least seniority of them. He testified that a minor consideration was concerns with the applicant’s driving. He testified that the applicant’s race, colour, and creed played no part in the decision to select the applicant.
Mr. Neufeld emphasized that Mr. Tulloch was a good employee. He testified that, other than the driving incidents, he had no concerns about Mr. Tulloch’s work and it was clear from his evidence that he considered him an asset to the company.
To succeed in this Application, the applicant must convince the Tribunal that, on a balance of probabilities, his race, colour and/or creed were factors in his termination and that the assertions of the respondent about the reasons for the layoff are a mere pretext.
The applicant argues that various factors support this conclusion. He disputes the evidence of the company’s financial losses in the months prior to his layoff, which was presented at the hearing. He cites several examples of what he says is mistreatment by other managers. He states that there was a junior technician with less seniority than him who he says was a temporary employee, and who was not laid off. He believes this was a violation of company policy that, where other factors are equal, length of service will be the determining factor when the work force is reduced. He believes that Mr. Neufeld was angry with him for questioning a letter that was given to him regarding his record with company vehicles. He cites all of these, and other factors, as evidence supporting the inference that his race, colour and religion were factors in his termination.
With regard to his religion, Mr. Tulloch also notes that he was unable to attend optional training sessions that were held by the respondent on Saturdays, a day on which he cannot work because of his religion. Despite his request, a training session was not scheduled during the week. Mr. Neufeld testified that these sessions were not mandatory, and that they were directed primarily at individuals with less experience than him and that Mr. Tulloch did not need to attend. Mr. Tulloch also notes that he could not be on call on weekends because of his religion. He believes that his inability to work on weekends was held against him when the layoff decision was made.
I accept Mr. Tulloch’s genuine belief that race and religion were factors in his termination. I understand his concern that, even though he was a good employee, he was chosen for layoff.
Mr. Neufeld’s testimony about the reasons for the layoff, however, was logical, consistent and reasonable. Mr. Neufeld was a credible witness who explained that for financial reasons, he determined that a layoff should be made in the senior technician category and that the overriding consideration was seniority. Mr. Tulloch was the most recently hired senior technician, and therefore he was selected. In particular given Mr. Neufeld’s credible testimony, the circumstantial evidence cited by Mr. Tulloch does not cause me to conclude that on a balance of probabilities race, colour, or religion played a part in the termination decision.
Accordingly, the Application is dismissed.
Dated at Toronto, this 12th day of March, 2010.
“Signed By”
David A. Wright
Interim Chair