Bursey v. Clifford & Romano Plumbing/Heating, 2010 HRTO 688

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leswere Bursey

Applicant

-and-

Clifford & Romano Plumbing/Heating Ltd.

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: March 31, 2010

Citation: 2010 HRTO 688

Indexed as: Bursey v. Clifford & Romano Plumbing/Heating

APPEARANCES

Leswere Bursey, Applicant ) On his own behalf

Clifford & Romano Plumbing/ ) Michael Phillips, Paralegal

Heating Ltd., Respondent )

INTRODUCTION

1In his Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondent’s decision to lay him off was based on his age and therefore infringed his rights under the Code. The respondent denies it infringed the applicant’s rights under the Code and maintains that it laid the applicant off because it no longer had sufficient work for him.

2An oral hearing was held on December 2, 2009. At the hearing, the applicant testified on his own behalf and Joanne Baxter, an officer of the respondent employer and one of the owners of the company, testified on behalf of the respondent. Both parties had an opportunity to make legal submissions.

ANALYSIS AND DECISION

3The evidence in this matter did not establish that age was a factor in the respondent’s decision to lay off the applicant. Accordingly, the Application is dismissed.

4The applicant began working with the respondent in approximately March 1999. He testified that, while working one day in June 2008, he was called on the radio to come to the respondent’s office. When he got there, the three owners of the company approached him. Mr. Clifford, one of the owners, told the applicant that the respondent was laying him off. Ms. Baxter, the respondent’s secretary/treasurer, then gave the applicant a Record of Employment which indicated that he was being laid off because of “shortage of work.”

5At the time of his layoff, the applicant was the most senior of the respondent’s employees, in terms of length of service. Although the respondent laid the applicant off due to “shortage of work”, it retained other employees with less seniority than the applicant. The applicant also testified that at the time of his layoff he was told that another employee was also going to be laid off due to shortage of work. However, that employee, an apprentice, was not laid off and is still employed by the respondent.

6The applicant’s main argument rests on the proposition that he was let go because of the stated reason of “shortage of work” while employees with less seniority with the respondent were retained. The applicant submits that, in a true shortage-of-work situation, employees should be let go in reverse order of seniority. Since that was not the layoff procedure followed, he concludes that the decision to lay him off was based on his age. The applicant did volunteer however that he might have been selected for layoff because more junior employees were making a lower hourly wage than he was and so the respondent would have saved more money by selecting him for layoff.

7Although it may seem unfair to the applicant, laying off employees “out of seniority” is not a violation of the Code in the absence of any facts connecting the layoff to a prohibited ground under the Code. Similarly, with respect to the possibility that the respondent might have selected him for layoff because his hourly rate of pay was higher than more junior employees who were retained, distinguishing among employees on the basis of financial considerations such as these does not constitute discrimination on the basis of age contrary to the Code.

8At the hearing, the applicant acknowledged that he had no “proof” that age was all or part of the reason for the respondent’s decision to lay him off, although he says that he believes it must have been a factor. The mere fact that the applicant believes that he was treated in a differential manner on the basis of a prohibited ground under the Code is not sufficient for the Tribunal to find that discrimination occurred. There must be some objective evidence upon which the Tribunal can find that discrimination did in fact occur.

9The objective evidence in this case established that the respondent’s decision to lay off the applicant was based on non-discriminatory reasons.

10Joanne Baxter is one of the owners and an officer of the respondent corporation. Ms. Baxter testified that she made the decision to lay off the applicant in June 2008 because, due to changes in the business, there was no longer enough work to keep him employed beyond that point.

11For most of his employment with the respondent, the applicant worked on plumbing service calls, as well as bathroom and kitchen renovations, tiling and drywalling. However, the applicant was not a licensed plumber or other tradesperson, nor was he apprenticed in a trade. Although this was not initially a barrier to employing the applicant, the evidence established that it became more and more difficult for the respondent to find enough work for the applicant, beginning in around 2006.

12In 2006, one of the respondent’s largest customers, accounting for 25 percent of its sales, refused to have anyone other than licensed tradespersons attend to its service calls. Since the applicant was not a licensed tradesperson, he could no longer be used on these calls. In addition, the respondent began to experience a financial decline in its business in 2006, which continued in 2007.

13Then, in late March 2008, the Ministry of Labour issued an Order to the respondent requiring all of its workers on many of its jobsites to be licensed tradespeople or apprentices. The respondent interpreted that Order to mean that it could no longer send the applicant out to those job sites, even as a helper, since he was not a tradesperson or an apprentice. This drastically reduced the work available for the applicant. Ms. Baxter testified that the respondent had offered the applicant an apprenticeship in August 2007 and on a number of earlier occasions, but, as he had done before, the applicant told the respondent that he was not interested in an apprenticeship. During his testimony, the applicant agreed that in light of the Ministry of Labour order, the respondent could not legally assign him to work that he was doing previously.

14Due to financial difficulties, in 2008, the respondent decided to reorganize its business. The reorganization included focussing on the respondent’s core business of plumbing and heating, and getting out of renovation work and the residential market where customers often did not pay their bills and where the respondent had sustained financial losses as a result. The residential sector was where the applicant had been primarily employed (doing tiling and demolition work), since, as an unlicensed worker, he was not permitted to work on commercial and industrial jobs.

15After receiving the Ministry of Labour Order in March 2008, Ms. Baxter approached the applicant and told him that the respondent would have to lay him off because there was little work available which did not require the applicant to be either licensed or an apprentice. Ms. Baxter testified that the applicant did not object to being laid off when she raised it with him in March 2008, but asked if the layoff could be delayed for approximately eight weeks to increase his average hours for Employment Insurance purposes. The respondent consented and essentially found work for the applicant to do in the meantime such as maintenance around the office, painting, and hanging blinds, in addition to any other orders for tiling jobs or demolition work which came in.

16In June 2008, Ms. Baxter testified that the three owners of the company met with the applicant again, and told him that he had had more than his eight weeks and proceeded to lay him off due to a shortage of work.

17Ms. Baxter testified that after the company laid the applicant off, it retained nine employees, three of whom were around the same age as the applicant or older. These included an 80-year-old bookkeeper, a 79-year-old driver, and a 69-year-old plumber. The respondent points to this as further evidence that it does not bear a prejudice against older workers and did not let Mr Bursey go because of his age. Ms. Baxter testified that the applicant’s age played no role in her decision to lay him off.

18There was some evidence from Ms. Baxter that the respondent offered to employ the applicant in an alternate job with the respondent when they discussed the layoff in March 2008, but the applicant was not interested. The applicant denied such alternate jobs were offered to him. Ms. Baxter also testified she offered the applicant employment with another company she owned, maintaining a number of rental properties, and that the applicant accepted that offer but, when the time came, never showed up for work with that other company. The applicant agreed that someone from management had said that they had some work for him part-time “at the house”. However, he said that he told “them” to call him when they were ready, and he never heard from “them”.

19In any event, whether Ms. Baxter offered the applicant work with another corporation, whether he accepted that offer, whether Ms. Baxter was to call the applicant or he was to show up at an appointed time are not relevant to the case before me. The issue is whether that respondent’s decision to lay the applicant off from employment in June 2008 was based on his age. There is no dispute that the respondent did lay the applicant off from employment in June 2008. If that decision was based on his age – either in whole or in part – it would constitute an infringement of the applicant’s rights under the Code, whether or not he was offered alternate employment with the respondent or with another company.

20The applicant also disputed some of the other facts attested to by Ms. Baxter regarding, for example, the exact date in June 2008 on which he was advised of the layoff, the date on which he received his Record of Employment, and who was present when he was advised of his layoff. However, the applicant did not contradict the key facts relied upon by the respondent in defence of its decision to lay off the applicant: the respondent had less work overall since 2006; since 2006, one of the respondent’s largest customers would no longer permit unlicensed persons such as the applicant to do their work; and the Ministry of Labour Order in March 2008 made it legally impossible for the respondent to dispatch the applicant to work on many of their jobsites because he was not licensed. Nor did the applicant dispute that the respondent made a decision to move away from work in the residential sector due to financial constraints.

21As noted above, having considered all of the evidence, I am satisfied that the decision to lay the applicant off was not based on his age, but rather on legitimate business reasons.

ORDER

22The Application is dismissed.