HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ozi Clarke
Applicant
-and-
JMG Metal Inc.
Respondent
CASE RESOLUTION Conference DECISION
Adjudicator: Jim Dimovski
Indexed as: Clarke v. JMG Metal
AppearanceS BY
Ozi Clarke, Applicant ) Self-represented
JMG Metal Inc., ) Ian M. Campbell,
Respondent ) Counsel
1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he was treated differently in the course of his employment as a welder by the respondent and eventually laid-off on the basis of his colour and/or race.
2JMG Metal Inc. (the “respondent”) denies the applicant was subjected to differential treatment on the basis of his race and/or colour in the course of his employment. Further, the respondent submits the applicant was temporarily laid-off in October 2007, due to business considerations.
3A Case Resolution Conference (“CRC” or “hearing”) was held on September 14, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. At the hearing, I heard testimony from the applicant, the respondent’s President, John McGinn, and its plant manager, Phil Hobbs.
BACKGROUND
4Except as otherwise noted, the following facts are not in dispute.
5The applicant self-identifies as Black.
6The respondent is a small parts manufacturer of office furniture and equipment, with an inventory of approximately 20,000 parts in its catalogue. It takes orders as small as one to five pieces, at any given time, with lead times (the time between the order and deliver to the customer) capped at 15 working days. Its operations are divided into four departments: fabrication, welding, polishing and shipping. The number of workers the respondent employs has fluctuated from approximately 20 to 30 during the current and relevant times for this Application.
7In March 1995 the applicant began his employment with the respondent as a welder. Sometime in 2003, he alleges Mr. Hobbs began to treat him differently. For example, on one occasion while performing a job for the then plant manager, Mr. Hobbs approached the applicant to perform another job. The applicant replied that he could not without permission from the plant manager. In Response, the applicant alleges that Mr. Hobbs asked whether the applicant was giving him “attitude”.
8Mr. Hobbs was made plant manager in February 2004. Shortly thereafter, the applicant states his working life became more difficult and stressful. The applicant alleges that Mr. Hobbs denied him the opportunity to work overtime; denied him salary increases; prevented him from obtaining new jobs; and joked with others but not with him. Although the applicant complained to the respondent four times about Mr. Hobbs, nothing was resolved.
9Mr. Hobbs denied treating the applicant differently due to his race and/or colour. In 2003, to the best of his recollection, Mr. Hobbs states that he approached the applicant to complete a mock up after receiving an urgent request from a client. After being told he required the permission of his direct supervisor, Mr. Hobbs obtained the appropriate permission, and the applicant completed the job. Mr. Hobbs stated he approached the applicant to perform it in the first place, because he knew the applicant was capable of performing the job within the urgent time restraint.
10In terms of the 2004 overtime incident related by the applicant, Mr. Hobbs stated that particular job required slightly less than an hour to complete. In an attempt to improve efficiency and since the other employee had made arrangements to stay late and work overtime, that employee was told to finish the applicant’s job. Mr. Hobbs testified it was an isolated incident and that the applicant regularly took advantage of opportunities to work overtime.
11Although the applicant was denied a 50¢ pay increase in February 2005, the respondent claims that this was due to a performance issue. After the applicant’s performance improved, he was given his 50¢ wage increase in May 2005, and given a further $1.00 increase later that year.
12The respondent also notes that the applicant was the third highest paid welder in the welding department; only the lead hand and a more senior welder were paid more.
13On October 23, 2007, the applicant was laid-off. He alleges that he was laid-off on the basis of his race and/or colour. He submits the respondent did not use seniority as a determinative factor in its decision to lay-off employees in October 2007. He testified that Mr. McGinn confirmed that seniority was the basis for lay-off the last time he was laid-off from December 2004.
14Mr. McGinn states that due to the nature of the respondent’s industry and its production model, staffing needs unavoidably fluctuate with demand and the nature of the demand. The applicant was one of nine employees, and one of two welders, laid-off in October 2007. In determining who to lay-off, Mr. McGinn and Mr. Hobbs reviewed the respective skills of all the employees against the staffing needs for all four departments. Employees with broader skill sets and more varied experience who could work in other departments were favoured over those with more narrowly focussed skills. Length of service was only taken into consideration when employees possessed the same degree of flexibility and/or productivity. The applicant did not have any particular experience in any other department, however some employees with less seniority did. In particular, the respondent claims that the applicant did not have the technical qualifications to work on machinery in the polishing department and his wage was too high to work as a fabricator.
15The respondent claims that lay-offs were carried out in or around December 2003, November 2004, January 2006 and October 2007. Prior to that, lay-offs could occur once or twice per year. Contrary to the applicant’s testimony, Mr. McGinn indicated that the applicant had been laid-off in December 2003 and October 2007 and not in November 2004 and January 2006. Mr. McGinn stated the applicant was not laid-off in 2004 and 2006 because his skills matched the available work the respondent had at those times. Further, the respondent claims none of the past lay-offs were based on seniority.
16The applicant was recalled for work starting December 7, 2007. Since he had more seniority than the other welder laid off at the time, he was recalled. He was the first to be recalled and was made aware that there was no guarantee of work for him beyond December 31, 2007. The applicant alleged that he was recalled after he filed his original complaint with the Human Rights Commission. The respondent submits the applicant’s continued service was precipitated by the leave of absence of another welder, the lead hand.
ANALYSIS
17After applying the applicable legislation and weighing the relevant evidence and considering the parties’ submissions, I dismiss this Application for the following reasons.
18Given his testimony at the hearing, the applicant clearly believes that he should not have been laid-off because of his seniority. In his view, the fact that he was laid-off in October 2007, and other less senior welders were not, is a sufficient basis to believe his rights under the Code were violated. The October 2007 lay-off was pivotal to him and in retrospect he believed he had been treated differently on the basis of his race and/or colour specific to this incident as enumerated in his Application. His previous lay-off, he claims, occurred in 2004 but, is not outlined in his Application.
19He was unable to provide any direct evidence that he was subjected to discrimination based on his race and/or colour. However, discriminatory actions are often by their nature, actions which can be incapable of direct proof. As such, it may become necessary to infer discrimination from the conduct of an individual or individuals.
20I am not satisfied that there is sufficient basis to infer the applicants’ rights under the Code had been violated. Instead, I prefer the evidence from the respondent. The testimony of Mr. McGinn and Mr. Hobb was logical, consistent and reasonable and supported by the documentary evidence.
21I am satisfied that concerns over the applicant’s performance is likely the cause for the applicant not receiving a wage increase in February 2005. In his notes dated February 14, 2005, derived from a personal meeting with the applicant, Mr. Hobbs indicated that the applicant’s work effort, which included him spending more time away from his station than other welders, was the reason for denying him a wage increase. Shortly after the meeting, in May 2005, the respondent’s wage rates summary indicate the applicant had received his wage increase. More important, in my view, is that he also received two subsequent wage increases at amounts greater than some other welders received. Besides not disputing the respondent’s reasons for denying him a raise in February 2005, I find it likely the respondent used performance and not race or colour as a determinative factor for deciding increases since the evidence supports the applicant received subsequent increases no less than some co-workers and greater than others.
22With regard to the discussion about lay-offs, the applicant testified that he took Mr. McGinn’s word, in 2004, that seniority mattered in terms of the respondent deciding which employees would be laid off. Mr. McGinn denied the accuracy of the applicant’s recollection.
23The applicant testified that his skill and seniority should have prevented him from a lay-off. I am satisfied that the respondent’s lay-off decisions are objectively determined in response to market conditions with a goal to ensuring that business could be conducted in a flexible and nimble fashion which was generally the way it tried to conduct its business. While I can understand the applicant’s perception, the respondent is a non-unionized workplace and the nature of its business requires it to be flexible, nimble and sensitive to its business market. A shortage of business requires it to adjust accordingly. This is supported by the evidence, which was not disputed, that lay-offs occurred almost on a regular basis and that staffing levels fluctuate constantly. Although the applicant is a skilled senior welder, as acknowledged by the respondent, I am not satisfied that in the business context in which he worked, it was necessarily a determinative factor or a shield against being laid-off. I also do not find any persuasive evidence that he had the broad and varied experience in other departments to support no lay-off or that at his wage rate it would have been fiscally prudent to move him to another department.
24In my review of his testimony, I find that the applicant corroborated significant aspects of the respondent’s submission. For example, he admitted lay-offs coincided with a slow down in business and that he had been spared from past lay-offs. He also welded during those periods he was not laid-off.
25As such, I do not accept his seniority prevented the applicant’s lay-off and accordingly, since I do not find seniority to be a determinative factor in the manner the respondent determines its staffing levels, I am not satisfied that an inference of discrimination is supportable.
26As noted above, I find the basis of the Application is on his misperception of the value of his seniority and how the respondent sees fit to run its business. For example, during the hearing the applicant noted that an employee, hired some years after he was, received a starting salary approximately equivalent to his. In order to obtain this person’s services, with his particular skill set and experience, the respondent indicated it had to offer this person a significant starting salary. The applicant did not acknowledge that a recruited employee with experience could or should warrant a significant starting salary. In my view, the applicant’s allegations seem to rest on the discord between how he thought the respondent should run its business as opposed to whether his rights under the Code were violated.
27I am not satisfied that the applicant established that a factor in the decisions about overtime opportunities or particular assignments was the applicant’s race and/or colour. In addition to providing no particulars about his general allegations, he did not submit any evidence to support them.
28Objectively viewed, in light of my findings above, I am not persuaded that interactions with Mr. Hobbs outlined by the applicant in 2003 and 2004 represented anything more than a disharmony of a working relationship, or the applicant’s perception of such a disharmony, as opposed to a working relationship tainted by discrimination.
29In my view, his subsequent recall in December 2007 also reflected the respondent’s business needs as opposed to making any decision based on the applicant’s race and/or colour. As such, I am not persuaded that his recall was related to the applicant filing his Application.
30In all the circumstances, this Application is dismissed.
Dated at Toronto this 1^st^ day of April, 2010.
“Signed by”
Jim Dimovski
Member```