Marvyn Williams v. Ceridian Canada Ltd., 2011 HRTO 433

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marvyn Williams

Applicant

-and-

Ceridian Canada Ltd.

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: March 3, 2011

Citation: 2011 HRTO 433

Indexed as: Williams v. Ceridian Canada

APPEARANCES

Marvyn Williams, Applicant ) Self-represented

Ceridian Canada Ltd., Respondent ) Scott Kitching, Counsel

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging that the respondent discriminated against the applicant with respect to employment on the basis of age.

2The applicant was 56 years old when he applied and was interviewed for an Inside Sales Consultant position with the respondent employer. He contends the respondent decided not to hire him because of his age.

3By Case Assessment Direction dated November 18, 2010, the Tribunal decided on its own initiative to convene a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success.

4The Summary Hearing was held by teleconference on February 23, 2011. The applicant was given an opportunity to explain how he could prove at a hearing of the Application that the respondent discriminated against him on the basis of age with respect to employment.

5For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.

BACKGROUND

6Although the respondent may well dispute some or all of the applicant’s allegations, it has not yet been required to file a Response to the Application. Accordingly, in determining whether the Application has a reasonable prospect of success, I have considered only the facts as asserted by the applicant. These are set out below.

7The applicant was initially interviewed for an Inside Sales Consultant position with the respondent in February 2010. He felt the interview went very well and he expected to get hired. However, in late March 2010, having not heard whether he got the job by March 14, 2010 as anticipated, the applicant contacted the respondent and was advised that he had not been successful in obtaining the position. No reason was given.

8The applicant continued to pursue a position with the respondent and on July 8, 2010, he was given an interview with the Vice-President of Human Resources who told the applicant that he liked his persistence. The Vice-President of Human Resources also arranged for the applicant to have an interview with another manager on July 8, 2010. According to the applicant, these were not interviews for a specific position with the respondent. Rather, they were opportunities for the respondent to explore, in a general way, what the applicant might have to offer the respondent in light of his sales experience.

9The applicant continued to express his interest in working for the respondent following the July 8, 2010 interviews and on July 27, 2010 he was given a 45-minute telephone interview for an Inside Sales Consultant position with Roger Catell, a Vice-President of Sales with the respondent, and another individual.

10The applicant felt that the July 27, 2010 interview went well and towards the end of the call he asked to be awarded the Inside Sales Consultant position. The interviewers told the applicant that they were unable to make a decision at that time.

11On July 29, 2010, Mr Cattell contacted the applicant and told him that the respondent had decided not to hire him. According to the applicant, Mr Cattell told him that he was overqualified for the Inside Sales Consultant position and that the respondent presumed the applicant, if hired, would leave the job after three or four months. When the applicant said he hoped that his age was not a factor in the decision not to hire him, Mr Catell told him that his age had nothing to do with it. He told the applicant that there were a number of reasons he was not selected for the position, including the fact that the applicant had interrupted him a few times during the interview. Mr Catell did not elaborate as to the other reasons.

12The applicant submitted his resume, two letters of recommendation and three references to the respondent when he was interviewed in February 2010 and again in July 2010. However, the respondent never contacted the applicant’s references.

13The applicant submits that, as his body has aged, he has developed what he describes as a “sleep crease” in his forehead. He acknowledges that, as the July 27, 2010 interview was conducted by telephone, the interviewers would not have seen his face, but he wonders whether one of the other people with whom he had met face to face may have mentioned it to the July 27, 2010 interviewers and whether it might have been a factor in the decision not to hire him.

ANALYSIS

14During the Summary Hearing, the applicant indicated that he intended to prove his allegations of age discrimination primarily by reference to the July 27, 2010 interview and the July 29, 2010 conversation that followed it. The applicant asserts that he was not hired for a job with the respondent because of the respondent’s perception that he was overqualified for the job and that he would therefore be difficult to retain as an employee for more than a few months. The applicant was very upset by this and his submissions focussed on the inaccuracy and unfairness of the respondent’s presumption that he would leave its employ after three or four months. The applicant also felt that it was not a very good business practice for the respondent to tell him that it would not hire him because it presumed he would leave the company after a short time.

15However, as I explained to the applicant during the Summary Hearing, the Tribunal does not have jurisdiction to deal with a claim that the respondent’s decision not to hire him was unfair in a general sense or that it was a poor business decision. The Tribunal’s jurisdiction is limited to determining whether there has been discrimination on the basis of a prohibited ground under the Code.

16Although the applicant alleges that the respondent decided not to hire him based on his age, he candidly acknowledges that he cannot prove that his age was a factor in the decision. He submits that only the respondent can tell the Tribunal whether his age was a factor in its decision not to hire him. However, since the applicant bears the onus of proof, it is he who must allege facts which, if proven, could lead the Tribunal to find that he was not hired by the respondent, at least in part, because of his age. Otherwise, the Application has no reasonable prospect of success and must be dismissed.

17As noted above, the applicant bases his Application primarily on the alleged fact that the respondent told him that he was overqualified for the job and that, if hired, he would presumably leave after three or four months. Even if that is true, however, I do not see how the respondent’s presumption was connected to the applicant’s age. Nor was the applicant able to explain any such connection. The applicant stated that the respondent must have had some reason for thinking that he would leave after three or four months, but he did not know what it was. The applicant told the Tribunal that he assumed that the respondent thought that he would leave because he would not make nearly as much money working for the respondent as he had made in the past with other employers. If he is correct in that, however, then the respondent’s presumption obviously had nothing to do with the applicant’s age, but rather his past financial success.

18Nor can I see any connection between the respondent’s alleged perception that the applicant was overqualified for the job in question and his age. The applicant is no doubt highly qualified to work in telesales, and may very well have gained his qualifications over his years working in that field. However, I am not persuaded that deciding against hiring the applicant on the basis of his actual or perceived over-qualification for the position in question could lead to a finding of discrimination on the basis of age. It seems to me that a much younger candidate than the applicant could also have been overqualified for the position; just as an older candidate could have been completely unqualified. Although age and job qualifications may coincide, it seems to me that, generally speaking, one’s level of qualification for a given position is independent from one’s age. In my view, there is no reasonable prospect that the applicant will be able to establish that in deciding not to hire him based on his job qualifications, the respondent discriminated against him on the basis of age.

19As for the applicant’s submission that as he has aged he has developed a sleep crease in his forehead and it might have played a role in the respondent’s decision not to hire him, this is purely speculative. There are no facts alleged which, if true, would allow the Tribunal to conclude that the applicant’s appearance played any role in the respondent’s decision not to hire him.

20In this case, there are no allegations which, if proven, would allow the Tribunal to conclude that the applicant’s age was a factor in the respondent’s decision not to hire him. Accordingly, the Application has no reasonable prospect of success and is dismissed.