HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carl Gombos
Complainant
-and-
Goodrich Aerospace Canada Ltd., Steve Chalmers,
Jennifer (Emons) Alfaro, John Butlin, Peter Rajewski
Respondents
DECISION
Adjudicator: Leslie Reaume
Indexed as: Gombos v. Goodrich Aerospace Canada Ltd.
APPEARANCES
Carl Gombos, Applicant ) Self-represented
Goodrich Aerospace Canada Ltd., )
Steve Chalmers, Jennifer (Emons) Alfaro, ) Patrick Gannon, Counsel
John Butlin and Peter Rajewski, Respondents )
1This Decision arises from a Complaint filed by Carl Gombos (“complainant”) against Goodrich Aerospace Canada Ltd. (“corporate respondent”) and a number of individuals who were employees of the corporate respondent at the time of the events giving rise to the Complaint (“individual respondents”). The Complaint alleges discrimination on the basis of age, place of origin and disability in the context of his employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Complaint was referred to the Tribunal by the Ontario Human Rights Commission (“Commission”) prior to the substantial amendments to the Code which came into force on June 30, 2008.
2The complainant commenced employment with the corporate respondent as a Technical Support Technician in Configuration Control on June 6, 1997, at the age of 57. The complainant was employed in a division of the company that makes landing gear and flight controls for commercial aviation in Oakville, Ontario. In 2002 and 2003 there were approximately 600 employees in that division. The complainant was terminated along with 19 other employees and all temporary staff at the Oakville facility in a workforce reduction on April 15, 2003.
3In his Complaint, the complainant self-identifies as a “63 year old man from Hungary, who has anxiety”. The complainant’s allegations can be summarized as follows:
He experienced discrimination and harassment at work on the basis of his place of origin, which he reported to his employer;
He also complained to his employer about various workplace stresses, including workload and interpersonal issues;
The employer failed to take his concerns seriously and he became ill as a result of the stress in his workplace;
He took an extended medical leave from May 2002 to November 2002 and when he returned to work he was not properly accommodated in the position he occupied prior to his medical leave;
His employment was terminated a few months after his return from medical leave in April 2003 because of his age and disability.
4The respondents denied the complainant’s allegations. The respondents alleged that the complainant was accommodated in accordance with his requests for accommodation when he returned to work and that he was terminated as part of a company-wide workforce reduction.
5The complainant was unrepresented. The respondents were represented by counsel. The Commission withdrew from the proceeding prior to the commencement of the hearing.
6The Tribunal conducted a hearing on September 30, 2009, and December 15, 2009. The respondents filed a hearing brief in advance of the hearing. The complainant found it difficult to comply with the formal Tribunal rules and was permitted to bring the documents he intended to rely on to the hearing rather than filing a hearing brief in advance. At the conclusion of the hearing on December 15, 2009, I requested that the respondents file further affidavit evidence that would provide the complainant and the Tribunal with additional information in relation to the workforce reduction.
7The Tribunal heard evidence from the complainant; Peter Rajewski, who was accused of having made derogatory comments linked to the complainant’s place of origin; and Jon Butlin, who was the complainant’s supervisor from a few months before the complainant left work on medical leave until the point at which his employment was terminated.
8There were no allegations made against Jennifer (Emons) Alfaro, and as a result, the Complaint against her was dismissed at the hearing.
9The complainant participated in the hearing in English but also had the assistance of a Hungarian interpreter, Mr. Tom Molnar, upon whom he relied when necessary.
Legal Framework
10The Code prohibits discrimination in employment on the prohibited grounds alleged by the complainant, namely, age, disability and place of origin. However, the onus is on the complainant to prove that his workplace experiences are linked to one or more of these grounds.
11In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the Court of Appeal found that in most human rights cases, discrimination will be established where the claimant is able to prove a “distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others)” (para. 90). This definition of discrimination has its origins in Supreme Court of Canada decisions dating back more than 25 years (see: Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 1 S.C.R. 536; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143). If the claimant is able to prove these elements and the respondent is unable to prove a defence or statutory exemption, the Tribunal will find a breach of the Code and order an appropriate remedy.
12In a case such as this, it is not uncommon for the employer to have significantly more information than the complainant about the circumstances giving rise to his termination. As a result, I have considered this case on the totality of the evidence weighing the complainant’s allegations and the respondents’ explanation against the available evidence.
13There are three periods of time in the complainant’s employment for which the complainant alleges there is sufficient evidence to find discrimination resulting in a breach of the Code:
The period leading up to the commencement of the complainant’s medical leave in May 2002 during which he alleges he was experiencing harassment, was denied leave, and false performance assessments;
The complainant’s return to work from medical leave in November 2002;
The termination in April 2003.
Allegations of Harassment
14The complainant testified that there was a period leading up to his medical leave in May 2002 where he was experiencing significant stress at work. However, the complainant was able to describe only one workplace incident which he perceived was linked to a prohibited ground, namely, his place of origin. The incident involved a co-worker named Peter Rajewski. The complainant described Mr. Rajewski as a bully. The complainant testified that Mr. Rajewski embarrassed him in front of five or six co-workers and a client representative by making a derogatory reference to the fact that he was born in Hungary. The complainant recalled delivering some documents to Mr. Rajewski, who allegedly said, “here you are again, what do you want”. And then, according to the complainant, Mr. Rajewski asked “where are you from?” and when the complainant responded “Hungary”, Mr. Rajewski joked that “it shows”. The complainant found this exchange humiliating.
15The complainant testified that this incident took place some time in February 2002. The complainant testified that he did not approach Mr. Rajewski after this incident because he did not want to expose himself to what he described as Mr. Rajewski’s “bullying style”. The complainant also testified that by the time of this incident he was already sick from the other workplace stresses he was experiencing.
16Mr. Rajewski testified that he did not recall the incident described by the complainant. He also testified that during February 2002, he was working for the company in Montreal three days a week and that in any event, he would not have spoken to the complainant in the manner described. He testified that he had only met the complainant for the first time in November 2002.
17The complainant testified that on or about February 24, 2002, he reported Mr. Rajewski’s comments as well as other workplace issues that were causing him stress to the General Manager, Steve Chalmers. The complainant alleges that he reported to Mr. Chalmers that he was feeling the effects of stress from a heavy workload, which resulted in a lack of sleep and migraine headaches. He testified that he asked Mr. Chalmers for an unpaid leave of absence for two months, which was denied.
18The complainant had a difficult time describing to the Tribunal any further incidents beyond the general allegation that the company had caused his illness. He testified that because of his accent some people laughed at him. He also testified that he felt isolated. The complainant liked to play chess rather than cards like many of the other employees and, as a result, he found himself isolated and felt he had a reputation for being a “loner”. He testified that he had found mistakes in the work of other employees and that he was targeted for speaking out about them.
19The complainant also testified about how stressful his work was; how he had been told in front of other employees by his former supervisor, Mr. Simpson; that he had an “attitude problem”; and that he had received a less-than-positive performance appraisal immediately preceding his medical leave.
20During cross-examination, the complainant was asked whether he ever told anyone that he had a disability. He responded by saying: “I told them many times that I was overworked and exhausted and I told them to ease the work load. I didn’t know that I was sick.” The complainant did not provide particulars of any other reports he may have made to management.
21The complainant’s testimony in relation to this period preceding his formal medical leave in May 2002 reveals essentially two allegations which have the potential for engaging the Code; the first involving the incident with Mr. Rajewski; the second involving the request for leave, which the complainant alleges was denied.
22In my view, there is insufficient evidence to support the allegation that the complainant was experiencing discrimination. Even if I were to accept the complainant’s version of the interaction with Mr. Rajewski, I would not find it serious enough to establish a breach of the Code.
23With respect to the request for a leave of absence, the respondent denies that any request for a leave of absence was made at this time and the complainant confirmed that he did not provide the respondent with any medical documentation to support the request. I did not find it necessary to hear evidence from Mr. Chalmers directly on this point. I concluded from the complainant’s testimony alone that this was more a conversation during which he raised some general concerns with the General Manager. Those concerns included workload issues and some physical symptoms he was experiencing. Although I accept that he suggested that it would be good for him to take some time off, the complainant did not follow the company procedure and advise his supervisor and human resources of the need for medical leave and present them with medical documentation to support his request. The complainant was familiar with this process, having been approved for a previous medical leave for which he followed the appropriate protocol.
24It is unfortunate that Mr. Chalmers did not reach out to the complainant and explore his concerns in more detail. However, there is insufficient evidence to establish that the complainant presented these concerns to Mr. Chalmers in a manner which would have triggered a legal obligation to inquire further and as a result, I have determined that this interaction does not constitute a violation of the Code.
Allegations of False Performance Assessments
25The complainant commenced his medical leave on May 21, 2002, shortly after a difficult meeting with his supervisor, Mr. Butlin, where he was presented with a memo outlining ongoing performance concerns.
26Both the complainant and Mr. Butlin testified to the history leading up to the meeting of May 21, 2002, which is relevant to understanding the complainant’s experience.
27The complainant’s performance assessments from 1998 to 2002 appear at Tab 2 of the respondent’s Book of Documents. All of the performance assessments completed prior to the one for the period ending January 2002 report that the complainant was an excellent worker who was meeting or exceeding expectations. All of those performance assessments were authored by the complainant’s former supervisor, Mr. Simpson.
28In February 2002, Mr. Butlin commenced his position as the complainant’s supervisor and he overlapped with Mr. Simpson for a few months as he learned about his new responsibilities. In March 2002, the complainant was presented with his performance assessment for the period ending January 2002. Mr. Butlin testified that he participated in this assessment, setting out the goals for the coming year, while Mr. Simpson prepared the evaluation.
29The January 2002 performance assessment indicates that the complainant’s “people skills” need to be improved as does his ability to work in a team and get along with others. The complainant’s overall rating was “fully competent”.
30From the complainant’s point of view, the January 2002 performance assessment marked the first time in his employment with the corporate respondent that he had received comments about the necessity to improve certain aspects of his skills. The complainant testified that he was very upset and thought that Mr. Simpson was creating a very bad impression of him at a time when he was just getting to know his new supervisor. That statement was somewhat incongruent with the fact that the complainant signed the assessment and made several positive hand-written comments on the form thanking his supervisor for drawing the concerns to his attention and indicating how he intended to improve his performance. However, I accept that the complainant was upset, but at the same time, wanted to be perceived as someone who could take constructive criticism.
31On May 21, 2002, the complainant met with Mr. Butlin. During that meeting he was presented with a memo setting out performance concerns, which corresponded to some of the same issues raised in the January 2002 assessment. The complainant was unhappy with the content of the memo and testified that he felt that Mr. Butlin had been his supervisor for a very short period of time and was not in a position to comment on his performance. Although he did not elaborate, the complainant testified that he was very upset at what he perceived to be false allegations of performance-related concerns. He also testified that he felt that Mr. Simpson had made him look bad in front of Mr. Butlin during his last performance assessment and that Mr. Simpson was “masterminding” a plot to get rid of him. During his testimony, the complainant admitted that he openly accused Mr. Butlin of being brought in to carry out this agenda.
32Mr. Butlin described his role in the complainant’s department as a “working supervisor” in the sense that he was required both to manage and take on some of the functions in the department. Mr. Butlin testified that he observed for himself the performance concerns that gave rise to the meeting with the complainant and the May 21, 2002 memo, having been drawn in to try and resolve some of the interpersonal issues he documented.
33The memo dated May 21, 2002 confirmed the details of the meeting between the complainant and Mr. Butlin. The contents of the memo are summarized as follows:
Concerns raised in the January 2002 performance appraisal from March 2002 which highlighted several performance areas that required improvement, including working effectively with others and interpersonal skills, have not been adequately improved;
Refusal to cross-train co-workers or participate in cross-training;
Confrontation with IT staff following a log-in problem;
Refusal to work with engineering staff and derogatory comments made about engineers;
Inappropriately collecting data on the work of other employees;
Expectations set including the maintenance of positive work relationships, providing and receiving cross-training;
A warning that further performance issues would result in termination.
34Mr. Butlin explained the background leading to his decision to present the contents of the memo to the complainant. Mr. Butlin testified that when he came into the department, each person was responsible for their discreet work, there was no cross-training and staff members were not familiar with each other’s responsibilities. Mr. Butlin testified that he wanted to change this in order to better balance the workload. In his view, the complainant was not cooperating in his efforts. Mr. Butlin testified that when he presented his plan for cross-training to the staff, the complainant advised him that he would not participate in it, that he was not interested in training on other programs and he was not interested in training other people.
35Mr. Butlin also testified about the incident involving the engineer. The complainant had found an error in the engineer’s work. Mr. Butlin testified that the complainant was not comfortable going back to her to discuss the error directly. Mr. Butlin testified that when he suggested sending her an email, the complainant told him that the email was a “stupid idea” and that engineers were “lazy and they should just learn to do their jobs properly”.
36Mr. Butlin testified that the May 21, 2002 memo was a fair representation of the concerns he had at the time and that the memo was to serve as a warning. Mr. Butlin also testified that he was aware of the concerns that the complainant’s former supervisor had from his participation in the January 2002 performance assessment. However, Mr. Butlin testified that these performance concerns had nothing to do with the decision to include the complainant in the workforce reduction, which is considered in more detail later in this Decision.
37It was within an hour or so of this meeting on May 21, 2002, that the complainant began to feel ill and asked Mr. Butlin to call him an ambulance. Mr. Butlin testified that he asked the complainant if he could arrange a taxi instead and the complainant agreed. Mr. Butlin testified that the complainant told him he was suffering from a headache and, as a result, he thought a taxi was the appropriate approach. The complainant did not deny agreeing to take a taxi, nor did he deny reporting to Mr. Butlin that he had a headache. While the complainant attributes a discriminatory motive to Mr. Butlin for failing to call him an ambulance, I accept Mr. Butlin’s explanation that he believed the complainant agreed with his suggestion to call a taxi and he made that suggestion because the only symptom reported to him was a headache.
38From that point until November 4, 2002, the applicant was on disability leave.
39It is not my role to determine whether or not the performance issues identified by the applicant’s supervisors were in general accurate and fair. My role is to examine the events leading up to the applicant’s termination to determine whether or not evidence of a connection to a prohibited ground exists in the actions of the employer. The complainant’s burden is to produce evidence that the performance concerns were based, in part, on negative attitudes toward him as an older worker, a person with a disability, or a person of Hungarian decent.
40I have considered whether the employer had an obligation to investigate whether the performance issues they were documenting could be connected to the complainant’s growing anxiety about the workplace stress he was experiencing. However, there is insufficient evidence for me to conclude that the employer should have considered this possibility. In addition, the behaviour was specifically denied by the complainant and therefore he did not allege that his illness may have been an underlying reason for the performance issues.
41There is no question that the complainant believed that he was under tremendous stress, which was largely related to his workload. The performance concerns appear to have contributed significantly to the complainant’s distress. The best evidence for this is the fact that the complainant was incapable of returning to work after the meeting of May 21, 2002. However, there is insufficient evidence, in my view, of a link between the performance assessments and a prohibited ground such that the complainant could establish that he experienced discrimination in the period leading up to his medical leave in May, 2002.
Return from Medical leave
42The complainant testified that he arranged his return for work on November 4, 2002. When he arrived at work a temporary employee named Nicole Bevan was sitting at his desk and he was told that he would have to remain off work on paid leave for an additional week. The complainant was very upset about this because, in his view, the company had notice of his return and should have made the appropriate preparations.
43Mr. Butlin testified that a letter was sent to the complainant dated November 1, 2002, confirming the details of his return to work, advising him that Mr. Butlin was currently away from the office and that he would require time to prepare for the complainant’s return. The letter confirmed that the complainant would be paid full wages from November 4, 2002, to his new start date, November 11, 2002. The letter also confirmed that the complainant would return to work half-days for two weeks and full days thereafter. Unfortunately, the letter was not received by the complainant before November 4, 2002 and, as a result, he reported for work on that day.
44Mr. Butlin testified that he needed to make some preparations to integrate the complainant with the other members of the team who now included Mr. Rajewski, Mr. Butlin, the temporary employee, Ms. Bevan, and Michael Johnson. He also wanted to meet personally with the complainant and discuss his reintegration.
45During his cross-examination, the complainant was asked whether he met with Mr. Butlin upon his return to work. The complainant responded that Mr. Butlin never talked to him. He then admitted that the meeting did in fact take place but he denied Mr. Butlin’s version of what took place during that conversation.
46The meeting took place when the complainant returned to work on November 11, 2002. The only restriction placed on his return by his doctor was that the complainant should work half-days for the first two weeks. Mr. Butlin testified that during the meeting the complainant raised concerns about returning to the position he occupied before his medical leave because of his desire to avoid the stresses, which had caused him to become ill. Mr. Butlin testified that because he was not privy to the reasons behind the medical leave, he was learning for the first time about the complainant’s experiences of stress and anxiety. Mr. Butlin testified that the complainant told him he was stressed about returning to his old role and picking up where he had left off.
47Mr. Butlin testified that he advised the complainant that he could accommodate him in an alternate three-month assignment, which would allow him to manage his time in accordance with his needs. The assignment, which involved the transfer of thousands of drawings from paper to electronic form, was originally scheduled to be done by the temporary employee, Ms. Bevan, while the complainant was to return to his original position. Mr. Butlin testified that the complainant appeared positive and welcomed the opportunity, that he had daily contact with him and that he was impressed by the job the complainant was doing as the assignment got underway.
48The complainant testified that during the conversation with Mr. Butlin he expressed a desire to return to his original position on a part-time basis but felt forced to accept the alternative assignment. The complainant did recall Mr. Butlin telling him that the assignment would allow him to return to work at his own pace. He testified, however, that he felt he had no choice but to accept the assignment.
49During the temporary assignment, Mr. Butlin remained the complainant’s supervisor. The complainant admitted under cross-examination that he attended every “start up” meeting on his shift in the area where his permanent desk was located. Mr. Butlin testified that he met with the complainant every Friday to discuss his progress in the drawing stores assignment and that they spoke about how the complainant was feeling and how he was transitioning back to work. He described the complainant as positive and testified that he was doing a very good job with the project in the sense that he was interacting well with people and getting the project done on the schedule he had created.
50The complainant denied meeting with Mr. Butlin. He testified that Mr. Butlin would not meet with him, that he was unfriendly and that he had a mandate to get rid of him. I found his testimony on this issue less than persuasive given that he had earlier denied meeting with Mr. Butlin upon his return from medical leave but then admitted in cross-examination that the meeting took place.
51There is clearly a dispute about when, if ever, the complainant was returned to his original position. Mr. Butlin testified that the drawing stores project was completed in early February 2003 and, at that time, the complainant was returned to his original position, although at a reduced pace. The complainant takes the position that he was never returned to his original position.
52Mr. Butlin testified that as the drawing stores assignment drew to a close he and the complainant discussed a transition back to his original position. Within about one month of his return to work in November 2002, the complainant was able to work full-time hours. By the end of January 2003 or early February 2003, the drawing stores assignment was complete and the complainant had managed to transfer between 5000 and 6000 drawings into electronic form. According to Mr. Butlin, the complainant then returned to the Control and Configuration department full-time, processing engineering release records (“ERR’s”), the same work he had done before his medical leave.
53The complainant testified that in his original position he worked with a system called Matrix, an engineering document control system. His job involved pulling out ERR’s and reviewing them for impact upon the manufacturing process and the shop floor. A variety of tasks were undertaken in relation to the ERR’s. When those tasks were complete, the Technical Support Technician would close it out in Matrix. As a result, the system recorded how many ERR’s were completed and reports could be run in everyone’s names. A computer printout from the Matrix system confirmed that work was being performed by the complainant on ERR’s between early February 2003 and the date of his termination.
54The complainant admitted that he started processing ERR’s in February 2003, which was his primary role before his medical leave; however, he denied that he did it full time. On the other hand, he did not testify to doing any other work after February 2003 except to say that he was “in” the drawing stores assignment until his termination. Much appears to turn for the complainant on the fact that he was not returned to his original desk, as if this was somehow the demarcation line between the job he was doing in the drawing stores assignment and his original position. In my view, the respondent’s explanation, which is that the complainant was processing fewer ERR’s as part of his graduated return to work, is the more likely explanation for what occurred between February 2003 and the complainant’s termination.
55With respect to the decision to offer the complainant the temporary assignment when he returned from his medical leave, I am unable to find a breach of the Code. Mr. Butlin testified that he prepared for the complainant’s return to his original position in accordance with his restrictions. The temporary assignment was initially created for Ms. Bevan, who was doing some of the complainant’s tasks while he was on medical leave. It was only after the applicant expressed a concern about returning immediately to his original position that Mr. Butlin offered him the assignment. While the complainant testified that he felt that he had no choice but to accept the assignment, he did not communicate this to Mr. Butlin and, on the contrary, left Mr. Butlin with the reasonable impression that the temporary assignment suited his immediate needs.
56In my view, there is also insufficient evidence to establish the complainant’s allegation that he was never returned to his original position.
57When an employee returns from medical leave, the duty to accommodate is necessarily a collaboration between the employer and employee which is directed at ensuring a successful reintegration into the workplace. The starting point for that collaboration is a clear understanding of the employee’s restrictions. In this case, there was a formal medical restriction permitting the complainant to return to work half-days for two weeks. However, there was also a dialogue about the complainant’s less tangible needs for reduced stress and control over his work environment. In my view, Mr. Butlin was responding to those needs by offering the complainant the temporary assignment in the drawing stores.
58I do not find the complainant’s testimony that he felt pressured to accept the assignment persuasive. In my view, the complainant accepted the drawing stores assignment because the assignment permitted him more control over his reintegration, including control over his workload and hours. The complainant also testified that he felt that he had done a good job in the assignment and that he was reintegrating successfully. He also admitted to telling other people that he was having a positive experience and the project was going well.
59I base my conclusions, in part, on the fact that there is no evidence that the complainant advanced any concerns about the assignment once it was accepted, despite the fact that he had demonstrated an ability to be candid with his supervisor and advance his point of view over other issues. On November 1, 2001, for example, the complainant wrote an email to Mr. Simpson expressing his concern about having been embarrassed in front of his colleagues when Mr. Simpson told him that he had an attitude problem. In the email, the complainant described the incident, expressed to Mr. Simpson the impact of the incident on him, and asked for a resolution. In my view, if the complainant truly believed that the assignment represented a failure on the part of his employer to properly accommodate him, he would have raised the issue at the time.
Termination
60The complainant testified that on April 16, 2003, Mr. Butlin asked to meet with him. Jennifer (Emons) Alfaro, the Director of Human Resources, was also in attendance. During the meeting, Mr. Butlin told the complainant he was being terminated in accordance with a workforce reduction and reviewed with him the company’s release and indemnity letter. The complainant was shocked by his termination and during his testimony could not recall many of the details of that meeting. He testified that following the meeting, someone was assigned to him to escort him from the facility.
61The complainant testified that he felt he was being terminated because of his age because two younger people replaced him. He was also of the view that although he had the least company seniority in his department, the company should have found him a position by transferring him to another department.
62Mr. Butlin testified about his role in the decision to terminate the complainant. He testified that on April 15, 2003, 20 permanent employees and all temporary employees at the Oakville site were terminated. A list of the employees affected appears at Tab 5 of the respondent’s Book of Documents. A second list of the employees affected, which includes their start dates, was entered as Exhibit 12. That document shows a range of affected employees, with the earliest start dates in 1985 to the latest in 2002.
63Mr. Butlin testified that he found out about the workforce reduction about two weeks prior to April 15, 2003. Mr. Butlin testified that he was told to reduce his department by two people and to apply the criteria of least company seniority in the department. The two people who fit the criteria were Mike Johnson and the complainant. Ms. Bevan was also included because of her status as a temporary employee. Mr. Johnson started with the company just a few months before the complainant.
64Mr. Butlin testified that in the end, Mike Johnson was not terminated. Another employee, Mr. Bujenovic, approached Mr. Butlin earlier to inquire about his retirement options. Mr. Butlin testified that there had been layoffs in the U.S. division and Mr. Bujenovic had heard rumours of impending layoffs at the Oakville site. Mr. Butlin testified that Mr. Bujenovic approached him and asked to be considered for an early retirement package if the layoffs were to occur. As a result, it was no longer necessary to include Mr. Johnson in the workforce reduction.
65Mr. Butlin testified that the only reason the complainant was chosen for layoff was because he met the criteria of the lowest company seniority in his department. Mr. Butlin testified that contrary to the complainant’s assertion, no one was hired to replace the complainant and his work was shared between the remaining members of the group. Mr. Butlin denied that the complainant’s age, place of origin, or disability were factors in the decision to terminate his employment.
66Mr. Butlin also denied that the complainant’s performance played any role in the decision to terminate his employment. Mr. Butlin testified that when he returned from his medical leave, the complainant’s performance was steady and he was meeting expectations.
67At the conclusion of the hearing on December 15, 2009, the respondent was asked to file an affidavit with the Tribunal setting out further details on how the workforce reduction was carried out. The complainant was advised that upon receipt of the affidavit, he could contact the Tribunal if he had any questions about the contents.
68The respondent provided the Tribunal with an affidavit on February 26, 2010. The complainant did not contact the Tribunal with any questions related to the affidavit. The affidavit was sworn February 19, 2010, by Gerasimos Kouverianos, Vice-President, Business Support Landing Gear for the corporate respondent.
69In the affidavit, Mr. Kouverianos states that he is part of the senior management team for the Landing Gear Division located in Oakville. He was first advised of the workforce reduction approximately two months before the reduction took place by Brian Gora, who was President of the Division. Mr. Kouverianos states he was aware that a workforce reduction at Oakville and other sites was necessary due to both the continued business weakness in the aerospace industry and the termination of the Fairchild-Dornier FD728 contract in Oakville.
70Mr. Kouverianos states that he was involved in several meetings where discussions took place about the upcoming workforce reductions, including the scope, how the reductions would proceed, which departments would be affected and to what extent.
71At paragraph 5 of his affidavit, Mr. Kouverianos states:
It was decided that open requisitions for positions in Oakville would be reviewed and cancelled unless necessary, either to sustain existing projects or to enable the Company to acquire and complete future projects. Further, contracts with temporary employees were to be terminated. In addition, the Company would need to focus on reducing the workforce in areas of indirect labour instead of direct labour. “Direct labour” consists of those positions and departments that relate directly to the manufacturing and production and development of the Company’s products. “Indirect labour”, on the other hand, is work performed that does not have a direct relation to manufacturing, production or new product development. The reason for this distinction was that, while costs had to be reduced because of poor business conditions, such cuts could not be made to direct labour without negatively affecting the ability of the Company to meet its current project requirements or and attract new projects.
72And then at paragraph 6:
As such, those departments whose employees constituted indirect labour were affected by the workforce reduction in April, 2003. Those employees terminated in the workforce reduction in April, 2003, save a draftsperson and a machine shop technician, were all involved in indirect labour.
73And then at paragraph 7:
Once the departments to be affected were identified, the available capacity in each department was assessed, and based on that capacity, it was determined how many positions had to be eliminated in each department. Each department head was advised of the number of positions that would be eliminated in his/her department.
74The affidavit is consistent with the testimony of Mr. Butlin, who testified that he did not determine but rather was told how many employees from his department would be included in the workforce reduction.
75Mr. Kouverianos states at paragraph 9 of his affidavit that he has been informed by Brian Roland that employees were terminated because the position they had performed had been eliminated in Oakville and/or transferred to another facility in the United states, or based on their seniority with the Company.
76Having reviewed the affidavit, I have concluded that the best evidence on the issue of the criteria applied to employees included in the workforce reduction came from Mr. Butlin, who testified to being told to apply the criteria of least company seniority in the department. That criteria was applied to the complainant and to Mr. Johnson before he was replaced on the list by Mr. Bujenovic.
77The complainant was under the mistaken belief that Mr. Bujenovic had been offered a retirement package and wondered why the corporate respondent had not done the same for him. The affidavit of Mr. Kouverianos clarifies that all employees who had their employment terminated as a result of the workforce reduction were given severance packages based on the company’s severance guidelines. The company did not offer retirement packages, although some employees eligible to start receiving their pension decided to do so following the termination of their employment. While Mr. Bujenovic may have been eligible to commence receiving his pension, he was nevertheless treated in the workforce reduction on the same terms as the complainant. Copies of Mr. Bujenovic’s termination documents were included in the respondent’s Book of Documents at Tab 7.
78I cannot find in the circumstances of this workforce adjustment sufficient evidence to support the complainant’s allegation that he was terminated because of his age, disability and place of origin, nor is there evidence that the workforce adjustment had a disproportionate impact on individuals who are protected by those grounds.
Pay Discrepancy
79There is one final issue that the complainant raised, which he alleged he became aware of after the termination and as a result of the exchange of information between the parties in the context of his complaint to the Commission.
80The complainant testified that his starting salary was $5,000.00 less than another co-worker and he attributed this pay difference to the fact that he was an immigrant.
81The respondent alleges that the complainant started at above the mid-range salary point for his position and that he received all of the merit increases that were typically awarded to employees during the course of his employment. In some cases, he received more in the way of merit increases than others.
82There is no evidence to support the complainant’s allegations apart from the fact that his place of origin is Hungary and the person who received the additional $5,000.00 was not an immigrant. The complainant is unable to establish any link between the differential in salary and his place of origin.
Credibility
83At various points in this Decision, I have determined that it is not necessary to resolve issues of credibility in order to determine the issues before me. At other points, I have preferred the evidence of Mr. Butlin for two reasons: the first is that the complainant was predisposed to portraying Mr. Butlin as unfriendly toward him and, as a result, contradicted himself on the simple factual issue of whether or not meetings took place between them; the second is my overall impression of the complainant’s perceptions of his experience at work.
84There is no doubt that the complainant has an honestly held belief that he became ill as a result of the stresses he experienced at work. I also wish to make it clear that although I preferred to rely on the evidence of Mr. Butlin at times, this is not tantamount to a finding that the complainant was lying. It was clear to me that the complainant was extremely distressed about the circumstances giving rise to his termination.
85My observation of the complainant throughout his testimony is that he had difficulty disentangling his experiences of workplace stress from actual Code violations, and his perceptions of what he was experiencing appeared exaggerated. For example, he described a group of people who harassed him daily, hated him and thought he was a trouble-maker or a whistleblower. He also accused his former supervisor Mr. Simpson of “masterminding” a plot to get rid of him and bringing in Mr. Butlin to carry out that agenda. The complainant accused them both of falsifying performance issues and discarding him because they perceived him as sick and useless. He accused Mr. Butlin of creating the drawing stores assignment specifically to keep him away from his original position. The complainant repeatedly referred to himself as someone who was hated by his coworkers and who had become “enemy number 1” to the company. These perceptions, in my view, made it very difficult for the complainant to see that there was an alternative explanation for his termination. Statements of this kind cast doubt on the reasonableness of the complainant’s perceptions of what he was experiencing and, as a result, where his testimony conflicted with Mr. Butlin, I preferred the evidence of Mr. Butlin.
86In taking this approach I have been mindful of the test for credibility set out by the British Columbia Court of Appeal in Faryna v. Chorny 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):
Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is credibility…In short, the real test of the truth of the story of the witnesses in such a case must be in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and under those conditions.
87Having carefully considered all of the testimony and documents filed by the parties, I conclude there is insufficient evidence that the complainant was experiencing harassment and discrimination on the basis of any prohibited ground. The evidence is also insufficient to connect the performance issues, which were identified in the January 2002 and May 2002 performance assessments, with a prohibited ground or with the complainant’s termination. There is insufficient evidence to establish that the employer failed to properly accommodate the complainant upon his return to work and there is also insufficient evidence of a connection between a prohibited ground and the complainant’s termination.
88For all of those reasons, the Complaint is dismissed.
Dated at Toronto, this 20th day of May, 2011.
“Signed by”
Leslie Reaume
Vice-chair