HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Hamilton
Applicant
-and-
American Standard, a Division of Wabco Standard Trane Co.
Respondent
DECISION
Adjudicator: Dale Hewat
Indexed As: Hamilton v. American Standard
AppearanceS
Andrew Hamilton, ) Applicant ) Self-represented
American Standard, a Division of Wabco Standard ) Trane Co., ) Glenn McClockin, Counsel Respondent )
1This is an Application filed May 15, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant, Andrew Hamilton, claims that he was discriminated on the basis of disability by the respondent because he did not receive an enhanced severance payment that was given to other employees, pursuant to the collective agreement, when the respondent’s plant closed on September 13, 2007. In addition, the applicant claims that he should have been retained as a security guard to oversee the plant closure and that the failure to do so was discrimination due to his disability.
2The respondent denies that the applicant was subject to discrimination on the basis of disability. The respondent maintains that the applicant was not a member of the bargaining unit at the time of the plant closure and therefore was not entitled to the enhanced severance pay productivity bonus that was negotiated between the union and employer in April 2007, confirmed in the Closure Agreement Language in the final collective agreement with the union.
3The respondent submits, however, that the applicant was given special consideration and did receive an enhanced severance payment of 1.5 weeks per year of service, unlike other salaried employees. Finally, the respondent explained that the security guard retained to oversee the plant closure was employed by a different company and thus the applicant would not have been entitled to that position. While a security guard remained on site for the two months, none of the salaried or unionized employees continued to work for the respondent after September 13, 2007.
DECISION
4The Application is dismissed. What follows are my reasons.
The Facts
5The respondent ran a manufacturing business that produced enamel and steel bathtubs and sinks in a plant located in Cambridge, Ontario. The plant was closed in September 2007.
6The applicant commenced employment in 2001 as a unionized employee. In June 2004 the applicant suffered a workplace injury which resulted in permanent restrictions and he could not be accommodated in his pre-injury position. In consultation with the Workplace Safety and Insurance Board (“WSIB”), the respondent agreed to accommodate the applicant’s permanent disability by offering him the position of security guard, which was a salaried position outside the collective bargaining unit (“bargaining unit”).
7On October 18, 2004 the respondent sent a letter to the applicant offering him the position of security guard. The applicant was advised that this position
(…) will not be part of the collective bargaining unit; however, your current level of benefits and hourly wage will be maintained for the duration of your employment and will be reviewed as required.
8On November 15, 2004 the applicant received written confirmation of the security guard position which included the terms and conditions of his employment, consistent with the Employment Standards Act, including duties, schedule, training, wages, and vacation and holiday pay. The applicant was advised that his hourly rate would be based upon his pre-accident rate and that he would be receiving a weekly benefit from WSIB to cover any wage loss.
9The applicant was reminded that the position of security guard was not part of the bargaining unit and that the he would remain a non-unionized employee. The respondent claimed that the applicant accepted the position of security guard and that he signed the November 15, 2004 offer letter to show his acceptance. The applicant claims he did not sign this letter, but did not dispute that he worked as a security guard and did not pay union dues and was not a member of the bargaining unit for the remainder of his employment with the respondent.
10Between November 2004 and September 2007 the applicant was treated as a salaried employee with pay calculated based on his pre-accident rate. He also received approximately $35.00 weekly from WSIB to cover a wage loss that was incurred.
11During collective agreement negotiations in March 2007, the respondent advised the union of an imminent plant closure. As a result of this announcement, the respondent and union negotiated a Closure Agreement to cover the terms and conditions for bargaining unit employees when the plant closed. The Closure Agreement was ratified by the employees in the bargaining unit on April 26, 2007.
12In terms of Termination and Severance pay, the Closure Agreement provided that all bargaining unit employees would receive eight weeks’ notice of termination or pay in lieu of notice, and an additional 1.5 weeks’ pay up to a maximum 26 weeks for severance pay. Paragraph 12 of the Closure Agreement also provided that bargaining unit employees would receive an enhanced severance payment of $350.00 for each year of service up to a maximum of 26 weeks:
(…) to all active employees, who work through to their assigned termination date, provided that productivity, safety and quality remain consistent with the first 4 months of 2007 and all other matters relating to closure are to the Company’s satisfaction.
Analysis
13The applicant has not met the burden of proof to establish that he was discriminated in employment on the basis of disability. While there is no dispute that the applicant suffered a workplace injury and was accommodated for his disability, the evidence showed that the applicant was not a member of the bargaining unit and therefore the terms of the negotiated Closure Agreement did not apply to him.
14As of November 15, 2004, the applicant was accommodated for his permanent disability by being placed in the position of security guard without any wage loss. Although the applicant claimed that he did not sign the November 15, 2004 offer letter, he worked in the position of security guard for almost three years under the terms and conditions provided in the respondent’s offer. Additionally, he was advised that, as a security guard, he was no longer a member of the bargaining unit or required to pay union dues.
15Although the applicant continued to be paid at his pre-injury hourly rate and received his prior level of benefits, he was not entitled, as a salaried employee, to the same terms and conditions of employment as those employees who were members of the bargaining unit. Therefore, I do not find that the respondent discriminated against the applicant by not paying him the enhanced severance pay productivity bonus that was negotiated under the Closure Agreement.
16In addition, even though the respondent gave special consideration to the applicant by paying him 1.5 weeks’ salary per year of service, which exceeded the amount paid to other salaried employees, this payment does not support any entitlement to the enhanced severance payment under the Closure Agreement.
17Finally, I do not find that the applicant was subject to discrimination because he was not retained as the security guard to oversee the final stages of the plant closure. The respondent indicated that only one security guard was kept on for a two month period during the final shut-down phase, and that individual was employed by an outside company. As a result of this explanation and the fact that none of the other salaried or unionized employees continued at work past September 13, 2007, I find no evidence of discrimination against the applicant as alleged.
18Accordingly, the Application is dismissed.
Dated at Toronto, this 26th day of January, 2011.
"signed by"________________
Dale Hewat
Member