HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
William Saroyan
Applicant
-and-
Deco Automotive, a Division of Cosma International Inc.
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Saroyan v. Deco Automotive
APPEARANCES
William Saroyan, Applicant ) Self-represented
Deco Automotive, a Division of ) Cosma International Inc., ) Laura Karabulut, Counsel Respondent )
1This Application, filed on July 16, 2009, alleges discrimination in employment on the basis of family status and reprisal contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The Application alleges that the respondent, Deco Automotive, a Division of Cosma International Inc., ("Deco"), insisted that the applicant transfer from his midnight shift to the afternoon shift despite being advised that the afternoon shift conflicted with the applicant's child access arrangements and refused the applicant's repeated requests to remain on the midnight shift. The applicant claims the respondent took retaliatory action by insisting on his transfer to the afternoon shift; he was harassed after his supervisor informed other employees of his interest in remaining on the midnight shift. The work environment became toxic and he was eventually forced to terminate his employment.
3Deco denies that it discriminated against the applicant. The respondent states that the midnight shift was being eliminated owing to a downsizing of the organization and that, accordingly, the applicant was required to switch shifts. The respondent states that it twice delayed the transfer of the applicant to the afternoon shift in order to give the applicant time to make alternative child access arrangements. The respondent states that it further offered to modify the hours the applicant had to work on the afternoon shift for a period of one month so that the applicant could attend work and maintain his child access arrangements while he endeavoured to change these arrangements. The respondent denies that the applicant was subject to reprisal or that it was aware that the applicant was subject to harassment.
4Deco requested that the Tribunal dismiss the Application on the basis that a proceeding before an Employment Standards Officer had appropriately dealt with the substance of the Application. The Officer determined that the applicant was not constructively dismissed and was thus not eligible for severance and termination pay. The Tribunal denied this Request in an Interim Decision dated August 24, 2010, 2010 HRTO 1739.
5At the hearing I heard testimony from the applicant, Tina Caporiccio, the Human Resources Manager for Deco, and Adrian Bruce, the Tool Room Manager for Deco.
DECISION
6The Application is dismissed. Without finding whether the transfer to the afternoon shift would amount to discrimination on the basis of family status I am satisfied that the respondent met its duty to accommodate the applicant. The allegations of harassment and reprisal are also dismissed.
SUMMARY OF KEY EVIDENCE
Background
7Deco is an automotive stamping company providing automotive parts to the auto industry. The applicant was a tool maker working in the tool room on the midnight shift at the respondent's manufacturing facility in Rexdale, Ontario. Tool room staff are responsible for repairing and maintaining equipment. Historically, Deco had three work shifts: a day shift (9:00 am to 3:00 pm); an afternoon shift (generally 3:00 p.m. to 11:30pm.); and a midnight shift (generally 10:30 pm to 6:30 a.m.). In 2007 Deco began reducing the midnight shift.
8The key events in this case take place in the period September 2008 when the tool room staff on the midnight shift were formally told that they were being transferred to the afternoon shift, until November 10, 2008 when the applicant resigned his position.
William Saroyan's Testimony
9The applicant testified that he became aware that the respondent was reducing the tool room staff on the midnight shift and that he was to be transferred to the afternoon shift in September 2008. He testified that this was a concern for him because of his child access arrangements. The applicant was divorced and had a two year old daughter whom he had access to every Wednesday afternoon and every second Friday afternoon. It appears that this arrangement was court ordered in 2007 because the applicant and his ex-spouse could not agree on child custody arrangements. The applicant testified that his ongoing relationship with his ex-spouse was not good and that any effort to change his child access arrangements would require him to go to court.
10The applicant testified that after learning that he was expected to change shifts, he spoke to his ex-spouse about their child access arrangement but she told him that she wished to continue with the existing court order. He testified that he spoke to his family law lawyer in September who advised him that he could discuss the need to change custody arrangements with his ex-spouse, that he could bring a motion to change the court order if his ex-spouse agreed to the change, or that, if his ex-spouse did not agree, he could challenge the custody order in court which might take a year.
11The applicant testified that he did not attempt to file a motion in court nor look into child care arrangements for his child after he was told he was being transferred to the afternoon shift. The applicant testified that he did not make these efforts because he believed the respondent should have kept him on the midnight shift.
12The applicant testified that he spoke to Tina Caporiccio, Deco's Human Rights Manager, Adrian Bruce, the Tool Room Manager, and Steve Shaw, Deco's General Manager for the Rexdale manufacturing plant, about his wanting to remain on the midnight shift. On October 10, 2008 the applicant's lawyer wrote a letter to Deco (this letter was before me) to reiterate the applicant's interest in remaining on the midnight shift in order to maintain custodial access to his daughter. The applicant's lawyer suggested that a failure to meet this request would be a failure under the Code to accommodate the applicant on the basis of family status and would constitute constructive dismissal.
13The applicant testified that he was told by the respondent that the midnight shift was being eliminated and that he would be moved to the afternoon shift on the basis of seniority. It appears four persons worked in the Tool Room on the midnight shift: Derek, Amman, Kevin, and the applicant. The applicant testified that Kevin had less seniority than he did but that Kevin had been made the Tool Room supervisor, a position which had added health and safety responsibilities. The applicant testified that his direct supervisor was Adrian Bruce, the Tool Room Manager.
14The applicant testified that he was subject to harassment in September and October 2008. He testified that Amman and Derek were upset that Kevin had been made the supervisor and this caused tension in the Tool Room. He testified that Derek took out his frustrations on the applicant by commenting on the applicant's physical shortness and yelling at the applicant about why the applicant got to keep his shift. It appears Derek was assigned to the afternoon shift prior to the applicant notwithstanding Derek's greater seniority. According to the applicant, Derek believed the applicant was getting preferential treatment. The applicant testified that Kevin witnessed these incidents of harassment and did nothing in response.
15The applicant testified that when it became clear that he was being transferred to the afternoon shift, he felt that he had no choice but to quit his job which he formally did in a letter dated November 10, 2008. The applicant testified that he refused to transfer to the day shift because of his child access arrangements and his belief that the respondent ought to have accommodated his request to remain on the midnight shift.
16Under cross-examination the applicant acknowledged that he commenced full time employment with Deco on the day shift in October 2003 and that in March 2004 he was transferred to the midnight shift. He acknowledged that his letter of employment dated September 30, 2003 (that was before me) indicates that, while he was assigned to the day shift he could, in future, be transferred as a condition of his employment to another shift.
17He acknowledged that the Deco Employee Handbook (that was before me) indicates that the employer could change shift times and individual shift assignments at its discretion in order to meet fluctuating customer demands or for any other business reasons, and that he had agreed to comply with the conditions set out in the Employee Handbook. The applicant did testify that he had been told that he was hired exclusively for the nightshift and that he had only been on the day shift for training purposes.
18The applicant testified that he believed he was constructively dismissed. He testified that, accordingly, he should have been eligible for a severance package.
19The applicant testified that he was diagnosed in 2007 with narcolepsy and appeared to suggest that this medical condition would make it difficult for him to change shifts.
Tina Caporiccio's Testimony
20Ms. Caporiccio testified that that the respondent began downsizing the midnight shift in 2007 in response to lessening demand for automotive parts and following a decision by the respondent that a third shift was no longer required. She testified that some persons working on the midnight shift were transferred to the day and afternoon shifts while others were subject to permanent layoff. She testified that in 2007 the assembly section of the midnight shift was dismantled and that in February 2008 the hydroform section was dismantled and reductions were made to the pressroom. She testified that by October 2008 the press room was dismantled and that on November 29, 2008 the last two tool room workers, Kevin and Amman, were transferred, thus fully eliminating the midnight shift.
21Ms. Capriccio testified that employees were told that the midnight shift was being eliminated and that the applicant was told in September 2008 that he would be moved to the afternoon shift in October 2008. Ms. Caporiccio testified that all the tool makers on the midnight shift were transferred to the afternoon shift. No tool makers were laid off. She testified that the applicant was considered to be a good employee.
22Ms. Caporiccio testified that Deco was aware of the applicant's child access arrangements when the tool room transfers were underway and that the respondent took a number of steps in order to give the applicant time to make alternate child access arrangements. She testified that the applicant was the first tool room member scheduled to be transferred, based on seniority. However, she testified that in October 2008 the respondent delayed the applicant's transfer for two weeks by sending Derek, a more senior member of the tool room, to the afternoon shift in his stead.
23Ms. Caporiccio testified that the respondent subsequently extended the applicant's time on the midnight shift again in order to give him more time to adjust his child access arrangements. She testified that the applicant was then told that he had to report to the afternoon shift commencing Monday November 10, 2008, but that the respondent was prepared to give him every Wednesday and every second Friday off (without pay) for a month so that he could continue seeing his child while he endeavoured to alter his child access arrangement. A letter to this effect from the respondent to the applicant's counsel dated November 7, 2008 was before me.
24Ms. Caporiccio testified that the respondent had also been prepared to extend this arrangement to give the applicant time off while working on the afternoon shift if, after a month, the applicant had still not been able to change his child access arrangement.
25Ms. Caporiccio testified that on November 10, 2008 the applicant telephoned her to say he was quitting and that he subsequently put this in a letter. The applicant's resignation letter dated November 10, 2008 was before me. It states that the applicant was withdrawing his services as his family obligations were in conflict with the new shift change. It states that it took the applicant over a year to resolve his child care arrangements and that the respondent's offer to provide the applicant with a month to change these arrangements was inadequate. Ms. Caporiccio testified that the applicant was not forced to quit and that the respondent attempted to accommodate his interests by giving him extra time to make alternate child access arrangements.
26Ms. Caporiccio testified that the applicant never complained about the alleged harassment by a co-worker, notwithstanding the respondent's complaints process under its harassment and discrimination policy, and its Open Door Policy that allows employees to talk to anyone about a concern. She testified that the applicant did not raise any concerns about harassment when he met with Ms. Caporiccio on October 28, 2008 to discuss his concerns about transferring to the afternoon shift.
27Ms. Caporiccio testified that the applicant never provided any medical documentation in relation to his alleged narcolepsy to say that he could only work certain shifts.
Adrian Bruce's Testimony
28Mr. Bruce testified that he has been the Tool Room Manager since 2005. He testified that he informed the applicant in September 2008 that he would be transferred to the afternoon shift in October 2008. He testified that after the applicant's planned transfer there would be two tool makers left on the midnight shift, Kevin and Amman. He testified that he believed these two were transferred to the afternoon shift in December 2008 when the midnight shift was eliminated. He testified that keeping the tool makers on a midnight shift to carry out maintenance was not an option as Deco wanted to completely shut down the plant at night.
29Mr. Bruce testified that he was unaware of the applicant's harassment allegations, that he would only have known of these if they had been brought to his attention. He testified that he would have investigated any allegations of harassment brought to his attention, with the help of the human resources department, if required. Mr. Bruce testified that Deco wanted to keep the applicant because of his skills and the respondent's ongoing need for tool makers.
SUBMISSIONS
30The applicant submitted that he believed the respondent wanted to "push him out": to terminate his employment in order to save money, and did so by offering him a position on the afternoon shift knowing that he would be unable to take it. He submitted that he was harassed and not protected from this harassment by the respondent.
31The respondent submitted that there was no prima facie case of discrimination in this case based on family status, arguing that the applicant was not treated differently because of his family obligations. The respondent argued that the fact that the applicant may have had child care issues arising out of a change in his work schedule was not enough to conclude that he was treated in a discriminatory manner. The respondent submitted that because there was no discrimination, there was no duty on the respondent to make efforts to accommodate the applicant. The respondent submitted that the applicant never made the respondent aware of the alleged harassment so that it could respond. The respondent submitted that it was not clear that the alleged harassment was related to the alleged ground of discrimination.
FINDINGS OF FACT
32Very few of the facts in this case are in dispute, including the chronology of events as described in the summary of evidence. It is important to indicate that I find, based on the consistent and credible testimony of Ms. Caporiccio, Mr. Bruce, and the documentary evidence before me, that the respondent began reducing the midnight shift in 2007 and fully eliminated this shift in November 2008, and did so for business reasons.
ANALYSIS
33Subsections 5(1) and 5(2) of the Code provide that
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
34Section 10 of the Code defines harassment as
engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
35Section 10(1) defines family status to mean "the status of being in a parent and child relationship".
36Section 8 of the Code states that
Every person has a right to claim and enforce his rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe the right of another person under this Act without reprisal or threat of reprisal for doing so.
37I note here that the applicant appeared to raise the possibility that he was also discriminated against on the basis of disability when he briefly referred to having narcolepsy and that this condition affected his ability to work days.
38I do not find this allegation persuasive given that it was not raised in the Application as a concern and the applicant did not indicate that he raised it as an issue with the respondent in the period September to November 2008. I further note Ms. Caporiccio's testimony, which I found to be credible, that the applicant never provided the respondent with documentation to indicate that he had this condition.
39There are four principal issues I need to consider:
a. Did the respondent discriminate against the applicant on the basis of family status?
b. What is the duty to accommodate?
c. Did the respondent meet its responsibilities under the Code in relation to the allegations of harassment under the Code?
d. Was the applicant subject to reprisal under the Code?
Did the respondent discriminate against the applicant on the basis of family status?
40In Ontario Human Rights Commission v. Simpsons-Sears Ltd. ("O'Malley") 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, the Supreme Court of Canada confirmed that in cases under the Code, the initial onus is on the applicant to establish a prima facie case of discrimination, at which point the onus shifts to the respondent to justify its actions under the Code. In O'Malley the court also outlined the concept of adverse effect discrimination:
On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. ....An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.
41In the present case, I accept that the respondent's decision to do away with the midnight shift and to transfer the applicant and other employees to the afternoon shift was a business decision. I accept the respondent's further contention that under the terms of the applicant's employment they could re-assign him to a different shift. However, clearly this decision affected the applicant's child access arrangement. Is this business decision discriminatory on the basis of family status because it has an adverse effect on the applicant's ability to be with and care for his child?
42Employees often have responsibilities related to the caring of their children that may conflict with their responsibilities as employees: conflicts that need to be resolved. When does a requirement of employment that interferes with a parental of family responsibility mean there has been adverse effect discrimination: that there has been prima facie discrimination? How does one assess when an action with adverse impact constitutes discrimination on the basis of family status? The arbitration decision in International Brotherhood of Electrical Workers, Local 636 v. Power Stream Inc. [2009] O.L.A.A. No 447, (Jesin) reviews much of the case law on this issue and illustrates some of the difficulties in determining discrimination on the basis of family status when there are conflicts between workplace and family related responsibilities.
I do not think every conflict between a work obligation and a parental obligation must be accommodated by the employer. More importantly, I do not think that every such conflict should give rise to a finding of discrimination such that an inquiry should be conducted over whether the employer should accommodate the conflict. As a simple illustration where a collective agreement provides for mandatory overtime I would not find that an employer to violate section 5 [of the Code] by requiring an employee to perform such overtime on an evening in which the employee was scheduled to attend some activity of his/her child, although the activity may have been scheduled well in advance. To find discrimination in every such circumstance of adverse effect would freeze the employer's ability to act to meet its economic needs as virtually every action could have some negative effect on the parental duties of one employee or another. On the other hand to the requirement to perform such mandatory overtime would clearly have to give way if the employee was required to attend some medical need of the child's or if the employee's caregiver was unexpectedly unable to attend to the child.
There are many examples of conflict that fall between these extremes. For example, again citing the mandatory overtime scenario, what if the such overtime was required on an evening when the parent is scheduled to attend an important event in the child's life such as graduation, a championship game or school play. Should the conflict between such events and work requirements result in a finding of discrimination requiring the employer accommodate them subject to undue hardship [?]. (para 56-57)
43I am of the view that, in the particular circumstances of the present case, I do not have to make a finding as to whether the respondent's decision to transfer the applicant constitutes prima facie discrimination and results in a duty on the respondent to accommodate the applicant up to the point of undue hardship. That is because I am satisfied that the respondent's efforts to accommodate the applicant would meet any duty to accommodate the respondent may have had. It is the respondent's reasonable efforts to accommodate the applicant that lead me to find that the applicant has not been discriminated against on the basis of family status.
What is the duty to accommodate the applicant?
44The duty to accommodate arises in cases in which an employer's practices or actions create a discriminatory barrier. The Supreme Court of Canada discusses how a respondent must meet the duty to accommodate up to the point of undue hardship in Central Okanagan School District No. 23 v. Renaud (1992) 1992 CanLII 81 (SCC), 95 D.L.R. (4th)577:
More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term "undue" infers that some hardship is acceptable; it is only "undue hardship" that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words "reasonable" and "short of undue hardship". These are not independent criteria but are alternate ways of expressing the same concept. What constitutes reasonable measures is a question of fact and will vary with the circumstances of the case.
45The Court goes on to state in the same decision:
To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. ... The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.
46Whether the respondent had a required duty to accommodate the applicant or not in this particular case, I am satisfied that it met this duty. In my view, the respondent appropriately recognized the impact the change in shift would have on the applicant's interest in maintaining access to his child and sought ways in which to accommodate this interest by giving the applicant time to make arrangements to change the designated time for his access. There was no evidence that the applicant's repeatedly stated request that he should have been accommodated by being allowed to continue on the midnight shift was possible given the elimination of the midnight shift. The respondent twice delayed the applicant's transfer to the afternoon shift in October 2008 to allow the applicant time to change his access arrangements. The respondent subsequently agreed to give the applicant time to continue with his access arrangement in November, when he was scheduled to begin on the afternoon shift, in order to allow him yet more time to change his access arrangements. The respondent stated that it was prepared to extend this arrangement past November, if necessary. I find these are substantive, not negligible efforts, and all undertaken prior to the applicant being placed in a position of having his child access and work responsibilities actually conflict.
47The evidence before me is that the applicant did little to pursue possible changes to his access arrangement. It is not clear the applicant pursued any ongoing or substantive discussions with his spouse about altering their access agreement. The applicant acknowledged that he did not pursue filing any court motions to alter his custody agreement whether with his spouse's agreement or not I appreciate that the applicant believed that any change to the custody agreement would take time, effort and money but that does not, in my view, excuse the applicant from taking any measures to arrange changes. It appears the applicant simply held to the position that the respondent's proposals were unreasonable and they should not have required him to work the afternoon shift.
48I find it also significant that the applicant then quits on November 10, 2008, notwithstanding that he would have had a further month, at a minimum, to try to alter his access time. I find this unilateral decision to stop working at a time when efforts were being made to try to accommodate the applicant's parental interests unreasonable and that the applicant failed in his responsibility to try to implement the proposed accommodation. Given all these circumstances I find that the respondent discharged any duty it may have had to accommodate the applicant.
Did the respondent meet its responsibilities under the Code in relation to the allegations of harassment under the Code?
49The applicant testified that a fellow worker, Derek, called him "shorty" and complained about him getting privileged treatment. This would appear to be a reference to the fact that Kevin, who had more seniority than the applicant, was transferred to the afternoon shift prior to the applicant. This was done in order to allow the applicant to extend his time on the midnight shift while he tried to change his child access arrangements.
50The applicant testified that this harassment was witnessed by Kevin who did not respond. The applicant acknowledged that he did not tell complain of this behaviour to anyone. Ms. Caporiccio and Mr. Bruce denied that the applicant brought this alleged behaviour to their attention.
51The applicant did not provide a lot of particulars to his allegations of harassment and it was difficult to ascertain their specific nature and frequency and what, precisely, Kevin, may have heard. However, these were remarks allegedly made by a fellow employee and allegedly witnessed by another employee, Kevin. The applicant did not state, nor is their evidence that the applicant brought these remarks to the attention of his supervisor, Mr Bruce, or any other manager, for example, Ms. Caporiccio, or that he complained about this behaviour through any of the complaints process established by the respondent.
52The Tribunal has routinely found that where a respondent is a corporate entity, and has an employee who has contravened the Code, and that employee is part of the 'directing mind' of the respondent, then the respondent is itself in contravention of the Code. The act of the employee becomes the act of the corporate entity itself, in accordance with the organic theory of corporate responsibility. The Tribunal has also held that respondents have a duty to investigate complaints of discrimination or harassment and that the duty to investigate is the means by which an employer ensures that it is achieving the Code mandated responsibility of operating a discrimination free environment. See Laskowska v. Marineland of Canada, 2005 HRTO 30, at para 53. A failure to take reasonable steps to address allegations of discrimination may result in an employer being held liable for violating the Code.
53However, in this case I am not satisfied that the applicant brought forward his allegations of harassment to management or to any employee who was a directing mind of the respondent. Kevin was not the applicant's supervisor and it appears his status as a supervisor was based on having particular health and safety responsibilities. I did not hear evidence to suggest that the respondent ought to have known of Derek's behaviour. Consequently, the respondent cannot be held liable for any comments made to the applicant by a fellow employee.
Was the applicant subject to reprisal under the Code?
54The applicant's allegation of reprisal is based on the fact that his lawyer wrote to the respondent on October 10, 2008 to express the concern that the applicant's rights under the Code were being violated, and that subsequently the respondent continued to insist that the applicant transfer shifts. I see no evidence that the respondent retaliated against the applicant for expressing concern that his rights under the Code were being violated. The evidence is that the respondent continued to implement its plan to transfer the applicant and the others still on the midnight shift to the afternoon shift while offering accommodation to the applicant. The issue is that the applicant continued to object to the transfer and found the suggested accommodations inadequate. This does not give rise to a finding of reprisal.
55For all these reasons the Application is dismissed.
Dated at Toronto, this 2nd day of February, 2011.
"signed by"__________
Eric Whist
Vice-chair