HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stan Miksovsky Applicant
-and-
Fleet Industries Ltd. Respondent
A N D B E T W E E N:
Stan Miksovsky Applicant
-and-
International Association of Machinists and Aerospace Workers Respondent
DECISION
Adjudicator: David Muir Date: February 14, 2011 Citation: 2011 HRTO 306 Indexed as: Miksovsky v. Fleet Industries
APPEARANCES
Stan Miksovsky, Applicant ) Margaret A Hoy, Counsel Fleet Industries Ltd., Respondent ) Jason Green, Counsel International Association of Machinists and Aerospace Workers, Respondent ) Janet Borowy, Counsel
1These Applications were filed with the Tribunal on May 28, 2009 pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant filed the human rights complaints underlying these Applications with the Ontario Human Rights Commission on January 15, 2008.
2The respondent in TR-0369-09 will be referred to as the Employer respondent. The respondent in TR-0958-09 will be referred to as the Union respondent. The general claim of the applicant is that his right to be free from discrimination on the basis of age in employment and vocational associations respectively was infringed by the respondents. In his complaints, the applicant alleged that the employer and the union negotiated the payment of severance for all employees except the applicant because of his age The dispute concerns the applicant’s claim to severance pay after he was laid off for the final time by the Employer respondent.
3A hearing was held in accordance with the expectations set out in the Code and the Tribunal’s Rules that these matters be adjudicated in a manner that is fair, just and expeditious. I heard from the applicant and Heather Kelly, a representative of the Union respondent. After hearing the evidence of the parties, at the applicant’s request, a schedule for written submissions was set.
4There were two preliminary issues what were raised by the respondents. Both respondents stated that the Applications disclosed no prima facie case of discrimination. The Union respondent also stated that the substance of the Application as against them had been appropriately dealt with in another proceeding, that being the settlement of a severance pay grievance, and, accordingly, the Application should be dismissed pursuant to section 45.1 of the Code.
5There is a long labour relations narrative which precedes the circumstances giving rise to the complaints. Suffice it to say that there was a legal strike in 2002 and multiple unfair labour practice complaints before the Ontario Labour Relations Board. Whether in fact as a result of the labour relations disputes or not, the business of the employer in which the applicant worked was in serious decline and a series of lay-offs began, with increasing numbers of employees being laid off in 2004 and 2005. The assets of the business were ultimately sold to a new entity, NewCo, and some operations continue in the same premises where the applicant had worked. Some employees of the Employer respondent were employed by NewCo, but not the applicant.
6As a result of these lay-offs, many of which became permanent lay-offs and consequently terminations for purposes of the Employment Standards Act (“ESA”), the question of severance pay arose. The Employer respondent took the position that the employees, including the applicant, had lost their employment as an economic consequence of a strike and were therefore not entitled to severance pay under the ESA. The Union respondent disputed that position and filed grievances on behalf of a number of employees.
7This dispute first arose in 2002 and was not resolved until 2006 when a settlement of the union’s grievances was reached with the assistance of a mediator with an agreement in principle being reached in April 2006. The Memorandum of Settlement (“Settlement”) was approved by the union membership on November 13, 2006 and executed by the parties on November 16, 2006.
8The Settlement provided for the payment of $4.9 million to a fund to be administered by the Union respondent for distribution to employees. The parties agreed that the funds would be disbursed in accordance with the entitlement provisions of the ESA. So, for example, employees with less than five years of service, those who accepted employment with a successor employer NewCo, and employees who retired and were in receipt of an actuarially unreduced pension did not receive a payout from the fund.
9The applicant was laid off as part of a number of lay-offs in what became a complete restructuring of the business in which the applicant worked, including, ultimately the sale of some of the assets of the business to NewCo. The applicant was laid off in January 2005. The applicant had recall rights for up to two years at that point and does not appear to have elected to waive those rights. He also did not choose to retire at that time, but collected employment insurance benefits until December 1, 2005 when he was eligible to retire on a full pension. He chose to retire at that time.
10The Employer respondent states that it complied with its obligations under the Settlement and had no further involvement in the distribution of the fund. This is not disputed by the Union respondents who agreed that the decisions with respect to actual entitlement to the proceeds of the Settlement were theirs to make and the employer played no role in their decision making.
Disposition of the Employer Application
11The employer Application was dismissed after the applicant closed his case because the allegations and evidence of the applicant disclosed no prima facie case. As I indicated to the parties at the hearing, the only possible link with the Code arising out of the evidence of the applicant was the choice of the trigger date for entitlement to participate in the Settlement. The Union respondent agreed that the Employer respondent played no role in that decision, and the applicant was unable to contradict that evidence. That being the case, there was no basis for a finding against the Employer respondent. For that reason, the Application as against the employer was dismissed. At that point it was not in evidence precisely how or why the trigger date had been chosen and, accordingly, I directed that the Union respondent should lead its evidence in particular on that point.
Disposition of the Union Application
12Although this dispute arises out of a quite complex and lengthy labour relations struggle between the Union and Employer respondents, in the end the dispute as it relates to the Code issues is straightforward. In the end the evidence does not disclose a violation of the Code. The applicant did not participate in the Settlement because, at the time chosen as the trigger date for entitlement under the terms of the Settlement, the applicant was then retired and in receipt of an actuarially unreduced pension. His age was not a factor in the choice of the trigger date.
13The applicant states that in choosing the trigger date that they did, the union acted arbitrarily and directly discriminated against the applicant on the basis of age. Alternatively, the applicant states the choice of date for entitlement had a discriminatory impact on him because of his age. I note at this stage that the applicant frames his allegations as his being denied his entitlement to severance pay under the ESA. For purposes of this Decision, the applicant had no right to severance pay. There was a dispute between the workplace parties about the entitlement to severance pay of every employee of the Employer respondent, including the applicant. The question of the applicant’s entitlement to severance pay has never been determined. What we are concerned with is whether or not there is any indication that the applicant was deprived of the right to participate in the Settlement because of his age.
14The uncontradicted evidence of the Union respondent is that they selected the trigger date. Amongst the factors which influenced the choice of date were the fact that the Settlement was reached in April 2006 and finalized in November 2006; that the windup of the business had largely been completed in 2005; as well as a desire to include as many employees as was possible, it being understood that the later the date, the greater the number of employees who would be disentitled for a variety of reasons, including that they were retiring and in receipt of their pensions. The Union respondent’s evidence was that the mediator was urging that the union fix the trigger date for entitlement in November 2006 which would result in more employees not being entitled to participate in the Settlement. The Union respondent resisted that pressure and decided on the earlier date of January 1, 2006
15The applicant was laid off for the final time on January 28, 2005. He collected employment insurance benefits and then retired on an unreduced pension on December 1, 2005. These facts are not disputed.
16There is absolutely no indication that the age of the applicant or any of the other employees in his circumstances was a factor in the choice of the trigger date. It was recognized that whatever date was chosen, some individuals would not be entitled to participate in the Settlement. It was also apparent to the Union respondent that the choice of date would affect the number of employees who were entitled and accordingly chose an earlier date than had been suggested by the mediator. The uncontroverted fact is that the applicant’s age was not the reason he was not entitled to participate in the Settlement. The sole reason for his not participating was because, as of the trigger date, he had retired and received an actuarially unreduced pension. Had he not been retired and in receipt of his pension, whatever his age, he would likely have participated in the Settlement. For the applicant, this is undoubtedly an unfortunate coincidence in timing, but it is not discrimination on the basis of age.
17Having disposed of the Application on this basis, there is no need to consider the Union respondent’s other position that the substance of this Application was appropriately dealt with in the mediation process resulting in the Settlement of the severance pay grievance
18For all of these reasons these Applications are dismissed.
Dated at Toronto, this 14th day of February, 2011.
”signed by”___________
David Muir Vice-chair