HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Harold Meredith Applicant
-and-
MGC Limited Partnership o/a Magna Golf Club Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Meredith v. MGC Limited Partnership
APPEARANCES
Harold Meredith, Applicant Self-represented
Magna Golf Club, Respondent Eric Gresham, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age.
2The Application was heard on August 1, 2012. The applicant appeared and testified on his own behalf. Present for the respondent were Taryn Gardner, the respondent’s Human Resources Manager, and Dave Paterson, the respondent’s Assistant Superintendent. Both Ms. Gardner and Mr. Paterson testified on behalf of the respondent. Eric Gresham is counsel for the respondent.
Background
3The respondent operates a private golf club. The respondent is affiliated with, but independent of, Magna International Incorporated. The applicant testified that he worked for a division of Magna International before his retirement in 2008. At the time relevant to this Application, the applicant was 67 years of age.
4In mid-July 2011, the applicant sent an email to the respondent, inquiring about seasonal employment as a course marshal or security person. He received a reply email indicating that there were no positions available but that his resume would be retained in case an opening came up.
5In August 2011, the respondent determined that it required two grounds maintenance workers. It posted an advertisement in the local community newspaper. The applicant sent an email on August 8, responding to the advertisement.
6Mr. Paterson, one of the respondent’s witnesses, was responsible for the hiring process. He called the applicant and scheduled an interview for 10:00 am on Friday August 12, 2011.
7Mr. Paterson and the applicant both testified that the interview went well. The applicant confirmed that nothing occurred during the interview that gave him any concerns, and in particular, nothing happened to suggest age discrimination. Mr. Paterson testified that the applicant presented well during the interview, and he was impressed with the applicant’s experience and background.
8The applicant and Mr. Paterson agree that at the end of the interview Mr. Paterson told the applicant that he would be in touch with him “on Friday or Saturday.” As noted, the interview took place on Friday, August 12. The applicant is firmly of the view that Mr. Paterson said that he would be call the applicant later that day (Friday August 12) or the following day (Saturday August 13). Mr. Paterson testified that he meant that he would contact the applicant by Friday, August 19 or Saturday, August 20.
9The applicant testified that Mr. Paterson told him that he had “a couple” of more people to interview. Mr. Paterson testified that he ultimately interviewed six people, including the applicant, who was the first person he interviewed. He did one other interview in the afternoon of Friday, August 12, one interview on Monday, August 15, and two on Tuesday, August 16. He selected one candidate from this group, who was not the applicant, for the first position. He then interviewed a sixth person on August 22, and offered the second position to that person.
10Mr. Paterson testified that both of the successful candidates had relevant employment background and qualifications, as did the applicant. He selected the successful candidates because he felt that they were particularly qualified to interact well with the club’s membership. He indicated that this is a very important aspect of the grounds maintenance job. He testified that both of the successful candidates performed well and both were hired back the next season. He testified that both of the successful candidates are in their late 50s.
11On Tuesday, August 16, which was the Tuesday following the Friday interview, the applicant sent a letter to the Human Resources Director of Magna International Inc. The letter sets out the history of the job interview with Mr. Paterson and the applicant’s understanding that Mr. Paterson was to get back to the applicant no later than Saturday, August 13. The letter reads in part:
Guess what? Mr. Paterson or no else [got back to me]. Its now Tuesday, August 16, 2011.
I can not accept the lame excuse that it is regrettable – its not! I am of the opinion that there is an unwritten policy not to hire candidates who are seniors for various reasons at your Golf Club. During my tenure in companies this unwritten policy prevailed as well.
In conclusion, I ask that I be compensated for the full fall time period at the hourly rate that would have been offered also, an improvement award ($) suggestion plus my expenses for a wasted day hourly and expenses incurred, in kind, and your Golf Club in turn learns a valuable lesson in communication and FAIR TREATMENT in hiring practices.
12Mr. Paterson testified that he did not know about this letter until after the interviews were all concluded and after he had selected the successful candidates.
13Taryn Gardner, the respondent’s Human Resources Manager, responded to this letter on August 22, 2011. Ms. Gardner testified that she spoke to counsel before responding to the letter but that she did not tell Mr. Paterson about it. The letter indicates that the position of seasonal grounds maintenance worker had not yet been filled and that the interview process was continuing. The letter expressed some surprise that the applicant had written his letter only one business day after his job interview.
14I note that according to Mr. Paterson’s evidence, one of the two positions had been filled by August 22 and the second position was filled on August 22.
15The applicant responded to Ms. Gardner’s letter on August 25, 2011. In that letter, he disputed her statement that his earlier letter was written only one business day after his interview. He indicated that he wished to “settle this matter” and offered to sign a “waiver of non-disclosure” and suggested that the alternative would be “legal action.” He asked for a “more prudent serious reply” by August 29, 2011 “to avoid further escalation.”
16On September 1, 2011, the applicant filed this Application.
Analysis
17At the hearing, the applicant confirmed that the only evidence that he has to support his contention that Mr. Paterson told him that he would hear about the result of the job interview by the next day is his own sworn testimony to that effect. He submitted that I should accept his testimony and reject Mr. Paterson’s testimony that he meant that he would contact the applicant seven days after the interview and not one day after.
18On this point, I accept that the applicant may have understood Mr. Paterson to say that he would get in touch within one day of the interview. However, I do not accept that this is what Mr. Paterson meant. I accept that Mr. Paterson interviewed six people. The respondent disclosed Mr. Paterson’s personal notebook including the notes he kept contemporaneously with the interviews. These do not indicate the dates of the interviews, but do indicate that five people were interviewed. The notes indicate that the applicant was the first person interviewed. Mr. Paterson indicated that he did not keep notes of the sixth interview, on August 22. Ms. Gardner’s letter of August 22, 2011 indicated that the job interview continued to run in the local paper during the week of August 15 to 20. The applicant does not dispute this.
19All of this evidence is consistent with Mr. Paterson telling the applicant that he would be in contact by August 20 and not consistent with Mr. Paterson telling the applicant he would be in contact by August 13. It is not probable that Mr. Paterson would tell the applicant that he would contact him within one or two days of the interview when he was planning to interview more candidates.
20Even if Mr. Paterson had told the applicant that he would contact him by August 20, his failure to do so would not, in itself, establish discrimination on the basis of age.
21On this point, the applicant agreed with Mr. Gresham that his main concern was that he felt that Mr. Paterson had broken his verbal undertaking to get back to him within one day. The applicant agreed with Mr. Gresham that he would not have filed the Application and alleged age discrimination if Mr. Paterson had contacted him by Saturday August 13, even if he had told the applicant that he had not got the job. A verbal undertaking to contact a person within a set period of time is not a matter that is covered by the Code.
22The applicant indicated that he nevertheless believes that the respondent did discriminate against him because of age. In support of this, he reviewed a chart disclosed by the respondent indicating a staff list setting out the full-time and seasonal staff and their respective ages as of August 2011. He notes that there were twenty-eight employees between 30 and 39 years of age, one between 40 and 49; two between 60 and 65 and none over 65. He did agree that in 2012 there are now employees who are over 65.
23The applicant advised that in addition to this, he believes that the respondent has an unwritten policy to not hire people over 65. He testified that he believes this because in his past employment he was sometimes responsible for hiring decisions and he personally discriminated against older job applicants because of an unwritten policy.
Conclusions
24Section 5(1) of the Code provides as follows:
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.
25In the absence of evidence of direct age discrimination in a hiring process,(for example, comments made during the interview), the applicant must generally establish:
a. That the applicant was qualified for the particular employment;
b. That the applicant was not hired; and
c. That a considerably younger employee who was no better qualified obtained the position.
Clennon v. Toronto East General Hospital, 2009 HRTO 1242.
26If the applicant can establish this, the respondent must be able to provide a non-discriminatory explanation for why the applicant was not hired.
27In this case, it is not disputed that the applicant was qualified for the job and was not hired. The successful candidates were “older” workers but younger than the applicant.
28The applicant appears to assert that the age discrimination occurred when Mr. Paterson failed to get back to him within one day. I have found that while the applicant may have believed that this is what Mr. Paterson said, it is not likely that this is what Mr. Paterson meant because the hiring process had just started and Mr. Paterson intended to interview four other candidates later that week and ultimately interviewed a sixth candidate as well. Moreover, even if Mr. Paterson had made the undertaking that the applicant believe he did, there is no evidence which connects the undertaking, or failure to fulfill it, with age. The alleged failure to fulfill the undertaking is not a matter that falls under the Code.
29The other basis for the applicant’s assertion that he experienced age discrimination is the information provided by the respondent about the age of its staff. This information indicates that there is a range of ages, that the majority of staff are under 40 years of age and a minority are older. This information alone does not provide any basis to support the applicant’s assertion that the respondent has an unwritten policy of not hiring people over 65. The applicant’s assertion that he personally discriminated on the basis of age when he was in a position to hire people is also not a basis for a conclusion that such discrimination occurred in this case.
30What happened here is that the applicant applied for a job, was interviewed, misunderstood that he was to hear back with two days, and leapt to the conclusion that he had been discriminated against on the basis of age when he did not hear back within two days. Instead of seeking clarification of his understanding about when a decision was to be reached, the applicant sent a discourteous demand letter alleging discrimination. This behaviour is not consistent with the actions of a person seeking employment. It is also not consistent with the evidence which fails to disclose anything that happened that could reasonably have caused the applicant to believe that he had been discriminated against.
Decision
31For all of these reasons, the Application is dismissed.
Dated at Toronto, this 8th day of August, 2012.
Signed by
Brian Cook
Vice-chair