Darrell Armstrong v. Watson Building Supplies Inc. and Art Burbidge, 2012 HRTO 1017

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell Armstrong

Applicant

• and-

Watson Building Supplies Inc. and Art Burbidge

Respondents

decision

Adjudicator: Ian R. Mackenzie

Date: May 18, 2012

Citation: 2012 HRTO 1017

Indexed as: Armstrong v. Watson Building Supplies Inc. and Burbidge

APPEARANCES

Darrell Armstrong, Applicant ) Self-represented

Watson Building Supplies and

Art Burbidge, Respondents ) Brian Illion, Counsel

1Darrell Armstrong filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability, age and reprisal. At the hearing, the applicant withdrew his allegation of reprisal.

BACKGROUND

2Watson Building Supplies is a company that provides building supplies, such as drywall to construction and renovation sites. It has yards in Barrie and Vaughan. The yard at Vaughan is unionized and the yard at Barrie is not unionized. Art Burbidge, the individual respondent, was the Operations Manager at the Barrie location at all relevant times for this Application.

3The applicant commenced employment with Watson Building Supplies, the corporate respondent, in July, 2006 at the Barrie location. He was hired as a boom truck driver and operator. In February 2009, the applicant was transferred to the Vaughan location due to a heavier workload at that location. .

4May Collrin was the human resources manager for the corporate respondent at all relevant times for this Application. She testified that the applicant was not happy when he was transferred to the Vaughan yard and made frequent calls to her seeking a transfer to the Barrie yard.

5On June 24, 2009, the applicant injured his lower back while at work. He was accommodated with light duties and suffered no loss of pay. He returned to regular duties on July 6, 2009. The applicant states that he has encountered reoccurring intermittent back pain. He testified that he asked Ms. Collrin to tell him if any less strenuous positions came open. Ms. Collrin testified that he did not raise any issues about the need for accommodation after he returned to his regular duties

6On November 9, 2009, the applicant was advised by the respondent that there was an open position in Barrie working on a boom truck. He was also advised that the truck he was currently driving was being relocated to another yard and he would have nothing to drive if he stayed at Vaughan. He signed the letter agreeing to the transfer, effective November 16, 2009. The applicant alleges that, in fact, there was a boom truck available at the Vaughan yard and that he was therefore tricked into signing the transfer letter.

7On November 11, 2009, the applicant attempted to rescind his agreement to transfer. Ms. Collrin told him he was required to go. He was also advised by his union representative that he would have to report to Barrie because he had signed the transfer letter. His union representative told him he would have to file a grievance if he wanted to challenge the letter. He did not do so.

8On his return to the Barrie yard he was put on a tandem truck operated by Paul Gordon, as a helper. He continued to be paid at the boom truck operator rate. Mr. Gordon is close in age to the applicant. He testified that the two of them were commonly referred to as "heart and stroke" because of their age and weight. Mr. Gordon testified that he was not aware that the applicant had a back condition.

9The applicant testified that a number of employees, including the individual respondent, referred to him as an old man. In cross-examination, the applicant admitted that he would retort, “yeah, not bad for an old man”.

10Dave Medeiros worked in the dispatch office in Barrie and would assign work for the applicant on a daily basis. He could not recall the applicant advising him of any health concerns. He later testified that the applicant had never expressed any concern about his back to him. He agreed that comments about the applicant’s age were made in the workplace. He testified that the applicant did not seem angered by the comments and would engage in similar banter. He also testified that if he had been aware that his comments were offensive to the applicant, he would have stopped making them. In cross-examination he stated that a question he posed to the applicant of whether he was “getting too old to do the job” would have been a sincere concern and to make sure that if the assigned work was too difficult it would not be assigned again.

11Brad Bartlett worked with the applicant at the Barrie location. He started his employment as a helper and is now a boom truck operator. He testified that he did call the applicant an old man in a joking manner, as between “work buddies”. He testified that the applicant never gave any indication that he found the comments offensive. He stated that if he had been aware that the applicant found the comments about age offensive, he would have apologized. Mr. Bartlett also testified that the applicant never told him about his back condition.

12Generally, the witnesses for the respondents testified that the language used in the construction industry was generally “rough”.

13The individual respondent testified that he never referred to the applicant as an old man. He noted that they were similar ages.

14The applicant testified that he was frequently called “old man” by the employees at the dispatch desk. He also testified that he was asked if he was too old to do the job. He testified that he did not complain to management because he considered the dispatch employees to be his supervisors and they were participating in the comments. In addition, he testified that when issues were raised with management nothing was ever done.

15The applicant described this work as a helper as the most physically demanding position within the organization. He testified that the work was making his back and shoulder quite sore. He called his family physician in January of 2010, but could not get an appointment until February 18, 2010. He testified that he informed the dispatch desk that he would require the day off for a medical appointment because of a sore back. Mr. Medeiros testified that he did not recall if he was aware of the reason why the applicant requested the day off.

16The applicant was permanently laid off effective February 19, 2010. He testified that he was told by Ms. Collrin and the individual respondent that he was being permanently laid off because there was no foreseeable need for a boom truck operator. The applicant has disputed that there was a lack of work and alleges that a new driver was brought in the following week. The individual respondent testified that he was not aware of any disability at the time of the lay-off. He also testified that the decision to permanently layoff the applicant was made by the General Manager, not him.

17The applicant was provided a positive letter of reference on March 3, 2010, signed by Ms. Collrin. The letter referred to his hard work and dedication. The letter also stated that in the event that the corporate respondent had any openings in a similar capacity, it would consider re-hiring him.

18The applicant testified that the individual respondent called him from Florida in March 2010 to advise him that the corporate respondent was looking for drivers. Ms. Collrin later called him to offer a job as a tandem truck operator. He testified that Ms. Collrin told him that the rate of pay would be approximately $22/hr. He returned to work on March 17, 2010. After receiving his first pay, he became aware that he was being paid at a lower rate of pay, approximately three dollars less an hour that what he had expected.

19On March 23, 2010, he went to Ms. Collrin’s office to discuss his rate of pay. Ms. Collrin testified that the applicant yelled at her in the meeting. Doug Skrepnick, the corporate respondent’s president, testified that Ms. Collrin came to him later in the day to discuss the incident and was visibly shaken. He then decided to terminate the applicant’s employment, effective the same day. In an email sent to the applicant by Ms. Collrin after the termination of his employment, he was advised that he had been on probation at the time of his termination. It was, and still is, the respondents’ position that the applicant was a new hire on his return to employment on March 17, 2010.

20In cross-examination, the applicant stated that he would not have taken the job as a tandem operator if he had known the true rate of pay.

21Mr. Skrepnick testified that he had a telephone conversation with the applicant within a couple of months of the termination of employment. In the hour-long conversation the applicant did not raise any issues of discrimination or disability.

22On April 7, 2010, the applicant filed a complaint of reprisal under the Employment Standards Act, 2002, S.O. 2002, c. 41, s. 74. He alleged that he was reprised against for exercising his right to enquire about his rate of pay. The ESA officer issued a decision on June 15, 2010. The officer concluded as follows:

Based on a balance of probabilities, a review of available documents and discussions with the employee and employer, this officer finds that the employer's explanation and evidence is credible and believes that the employer terminated the employee due to disrespectful and angry behaviour and did not reprise against the employer by terminating his employment for enquiring about his rate of pay.

This decision of the Employment Standards Officer was not appealed by the applicant.

23Mr. Skrepnick testified that the corporate respondent was first made aware of the applicant’s concerns about discriminatory language in the workplace when it received the Application. In Response, the respondents stated that the corporate respondent conducted an investigation after receiving the allegations contained in the Application. The investigation revealed that ageist comments were made as part of the “banter” common to the construction industry. In its Response, the respondents stated that “the interviewed employees in the dispatch department admitted that use of such language was contrary to written company policy”.

24The corporate respondent’s Employee Handbook states that harassment based on prohibited grounds will not be tolerated and that any complaints should be brought to the attention of the Human Resources Manager. The Handbook also provides that all complaints of harassment will be investigated by the Human Resources Manager.

25The applicant filed a Statement of Claim on July 27, 2010 against the corporate respondent alleging wrongful dismissal and libel. The Statement of Claim did not allege a breach of the Code.

SUBMISSIONS

26The applicant submitted that his Code protected rights to be free of discrimination based on age and disability had been breached by the respondents.

27He submitted that the corporate respondent has admitted that its employees participated in making discriminatory remarks about his age. Although the respondents stated that this was a normal practice in the workplace, this is still a breach of the Code.

28The applicant submitted that the medical evidence did support a disability. When he injured himself he made a doctor’s appointment and advised his supervisor. The next day he received a temporary lay-off notice.

29The applicant alleges that his age and his work-related injury were the reasons for his termination of employment. He was not the employee with the least amount of seniority.

30The respondents submitted that harassment is a course of vexatious conduct that is known or ought reasonably to be known to be unwelcome. In this case, there was evidence about the industry culture of rough language. The witnesses testified that they had no reason to think that the applicant regarded the comments as offensive. The applicant did not advise any one that he thought the comments to be offensive.

31The respondents submitted that there were no references to discrimination by the applicant in his dealings with the respondent prior to his layoff or in his communications with Mr. Skrepnick following his layoff. In addition, the applicant did not identify any work restrictions on his return to work.

32The respondents submitted that there was no issue that the applicant had suffered a back injury in 2009. What is at issue is whether the employer was aware that the applicant was suffering from a disability after his return to work. He continued to perform his duties without any concerns. His permanent layoff of February 19, 2010 was an economic decision, as he was doing the work of a helper but being paid at the boomer rate.

33The respondents submitted that a positive letter of reference was provided to the applicant, stating that the corporate respondent would consider rehiring him. These facts are inconsistent with the allegations of discriminatory treatment. In addition, the applicant was subsequently rehired by the corporate respondent. It was not believable that the respondent would bring the applicant back to a unionized environment with the sole purpose of firing him.

34The respondents submitted that the allegations against the individual respondent are difficult to ascertain from the Application. The only allegations are that the individual respondent did not like him and that he called him an old man. The individual respondent denies making the comment.

DECISION

35The applicant has raised a number of issues relating to his employment and termination of employment. I am only able to address those issues that relate to the Code: alleged discrimination on the basis of disability and alleged discriminatory comments in the workplace based on age.

36With regards to disability, the applicant has alleged that he was permanently laid off in February of 2010 because of his disability. He also alleges that his termination of employment in March of 2010 was connected to his disability. He has also alleged that discriminatory comments related to age were made in the workplace, on a consistent basis.

37The applicant must establish a prima facie case of discrimination. Once this is established, the respondents must then justify their decision based on non-discriminatory factors. For the reasons set out below, I find that the applicant has not established a prima facie case of discrimination. There is therefore no need for the respondents to justify their decisions regarding the applicant.

38A prima facie case of discrimination is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the [applicant’s] favour”: O’Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC) at para. 28. The burden is on the applicant to prove, on a balance of probabilities, that there is a connection between the actions of the respondents and a prohibited ground of discrimination (in this case, disability and/or age).

39The applicant has alleged that he was permanently laid off after advising his supervisor that he had a medical appointment for a bad back. The evidence of the respondents is that he was laid off due to a lack of work. The allegation of the applicant is no more than a suspicion on his part. He was not able to establish that the corporate respondent was aware of the reason for his medical appointment. In any event, the fact that the respondents re-hired him approximately a month later is not consistent with an intention to lay him off because of his disability.

40Similarly, the applicant has not been able to establish that his disability was a factor in his termination of employment. The circumstances leading to his termination of employment related to the wage rate for his position. I do not need to determine if the corporate respondent had the right to terminate his employment as sought by the applicant. My task is to determine whether disability was a factor in the decision made by the respondents. The applicant provided no evidence to connect his termination of employment with his disability. In addition, he has not established that the respondents were aware that he had a disability that required accommodation at the time of his termination of employment. It appears that the primary concern of the applicant immediately prior to his termination of employment and subsequently was his rate of pay.

41The applicant has alleged that inappropriate comments were made about his age in the workplace. The respondents in the Response to the Application admitted that inappropriate ageist comments were made in the workplace. The applicant’s co-workers testified that he did not appear to be concerned by the comments and in fact participated by referring to himself as “an old man”. The applicant did not raise any concerns with management about the comments at the time or shortly after the comments were made. The corporate respondent conducted an investigation after being made aware of the allegations contained in the Application. Employees who engaged in the banter were made aware that the comments were contrary to the respondent’s policy. Those employees who testified stated that they would have ceased the comments if they had been aware that the applicant was upset by them. In the circumstances, I find that the applicant has not demonstrated that these comments were of concern to him while he was employed. In any event, the respondents conducted an investigation as soon as it was aware of the allegations and has reminded employees of its policy against the use of discriminatory language.

42The applicant has not established a prima facie case of discrimination as against the corporate respondent. Accordingly, the Application as against it is dismissed.

43The applicant has provided no evidence that the individual respondent engaged in any discriminatory conduct. The applicant testified that the individual respondent called him an old man, which the individual respondent denies. The applicant did not provide any specific evidence of when such language was used and the context of the alleged comment. I find on a balance of probabilities that the comment was not made. The applicant never raised this as a concern with either the individual respondent or other members of management of the corporate respondent. The applicant conceded that he did not raise any concerns about the alleged comments, in part because he felt that nothing would be done to address his concerns. I find that the applicant has not established a prima facie case of discrimination on the part of the individual respondent and accordingly, the Application as against the individual respondent is dismissed.

44The Application is dismissed.