HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Morris Albarus
Applicant
-and-
LKQ Keystone Automotive Industries ON, Inc. and Phillip Blais
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Albarus v. Keystone Automotive Industries ON
APPEARANCES
Morris Albarus, Applicant Self-represented
LKQ Automotive Industries ON, Inc. and Philip Blais, Respondents Phillip McCullogh, Counsel
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, ancestry, ethnic origin and race.
2A hearing was held on November 15, 2012 in Toronto. I heard from the applicant, Mike Kislack, David Winn, and Phillip Blais. Each witness adopted a will say statement as their evidence and were then questioned by myself and the opposing party. In the applicant’s case he adopted his narrative from his response to Question 8 of the Application (Form 1) as his will say.
3The organizational respondent is an after-market supplier of automobile parts. The applicant was employed by the organisation respondent beginning in January 2010 in the returns area of the warehouse. As a result of organizational changes in May 2011 there was a need to recruit a new manager for the department in which the applicant had been working. The applicant was not promoted to the management position and he believes that this decision was discriminatory. Although the applicant has alleged that this decision was based on whole or in part on his age, ancestry, ethnic origin and race, the claim at the hearing was that Stefan, the individual who did obtain the position, was favoured because he is white and the applicant black African.
4The Application is dismissed. My reasons for this conclusion follow.
[5] The relevant provisions of the Code are set out here for convenience:
- (1) 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.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
6The applicant has no direct evidence of discrimination however he argues that there were patterns of behaviour that he has experienced before and he decided that he could not tolerate the discrimination he perceived in this workplace. As a consequence the applicant quit his employment on August 15, 2012.
7The applicant states that the following incidents form the basis of his belief that he was a victim of discrimination in this employment. These incidents all go to the applicant’s central contention that Stefan was favoured over him because Stefan is white and the applicant is black:
a. The applicant alleged that he discovered in June 2010 that his access to the respondents’ computers was restricted and others were not;
b. The applicant alleged that in June 2010 he learned that his probationary period was longer than another employee, Stefan, who is white and who was eventually promoted to the department management position (see below);
c. The applicant also alleges that Stefan had greater access to the computer system than he;
d. The applicant alleged that Stefan was appointed to the joint health and safety committee, without consultation with the workers on the warehouse floor;
e. The applicant alleges that in May 2011 his computer access was further restricted by the removal of his access to an inventory control application. When the applicant approached the respondent Blais about the problem, Blais responded that there were changes coming and this is one of them;
f. The applicant alleges that on July 18, 2011, Stefan, was promoted to department manager;
g. The applicant alleges that he asked the respondent Blais if he had not got the position because he was black. The applicant alleges that Mr. Blais did not deny it, but said that it was the decision that was taken.
8Contrary to the allegations set out in paragraphs 6(a) and (c) above the applicant testified at the hearing that he had complete access to the computer systems necessary to perform all of the job functions as de facto manager of the Returns Department until May 2011. The applicant also testified in accordance with the allegations in the Application that he noted that Stefan who was hired three months after he was had a shorter probationary period. He also testified that he thought it odd and inappropriate that Stefan would be the one to advise him that his probationary period had concluded and in the applicant’s characterization “welcomed him to the company”.
9At the conclusion of his evidence I asked the applicant to explain how these incidents were indicative of racial or ethnic bias in the decision making with respect to computer access and the job promotion. The applicant testified that his one performance review in July 2010 was good and that he had been told he was doing a good job by his first manager who left in late 2010. He testified that Stefan was the junior employee and was accident prone. The applicant testified that he believed that Stefan was intellectually challenged but provided no details to support this contention. The applicant also relied on the fact that Stefan was appointed to the joint health and safety committee; the fact that his computer access was restricted in May 2011. The applicant also alluded to further indications of what he characterized as a pattern of behaviours that indicated bias on the part of the respondents but declined to offer details of this pattern of behaviours at the hearing.
10The respondents’ evidence was that the applicant was generally a good employee but that he did not adjust well to the changes that were introduced with the merger of two and then three organizations between 2007 and 2010. In particular there were significant changes made with the merger with Cross Canada in 2010/2011 and the consolidation of the two companies’ operations in the physical location where the applicant worked in the spring 2011. It is at this point that the respondent Blais came on the scene as Warehouse Manager responsible for the entire warehouse operations including the applicant’s work in the Returns Department.
11The respondents’ witnesses testified that there were a great number of changes associated with these enterprise and physical mergers that were occurring in this time frame. The respondents’ witnesses also testified that as a consequence of the mergers the Returns Department had been identified as a particular problem, not because of the applicant’s performance but largely as a consequence of the greatly increased volume of parts coming and going through his area.
12Dave Kislack was at the time a corporate trainer. He was brought in to provide training on company procedures in a number of areas including returns. The applicant undertook the training. Mr. Kislack testified that the applicant appeared to be resistant to the company’s policies and procedures.
13Dave Winn was brought in to manage the Returns Department in May and June 2011. He testified that the Returns Department was a mess largely as a consequence of the greatly increased volume of parts. He was tasked with cleaning it up by some procedural changes in relation both to data processing and parts handling. Mr. Winn testified that the applicant was resistant to changes in the system that he had set up and used prior to the mergers. He testified that he and the applicant “butted heads” over these issues but in the end the applicant appeared willing to comply with policy.
14Mr. Winn testified that he was approached by Mr. Blais to comment on three individual’s capacity to replace him as manager of Returns when he left in early July 2011. The applicant as well as Stefan were amongst the three individuals he was asked to appraise. He testified that he indicated to Mr. Blais that the applicant was not the best candidate, that he was argumentative and was not readily willing to adapt to the changed circumstances and follow the prescribed policies and procedures.
15Mr Winn also testified that he posted nomination forms for the position on the joint health and safety committee and then approached all of the nominees. He testified of the four or five nominees only Stefan was willing to stand and accordingly was appointed to the committee as a worker representative.
16Mr. Blais testified that he came over to the applicant’s work location in February 2011. He testified that he did restrict the applicant’s access to computer software used to change inventory. He acknowledged that the applicant and a number of other employees had this access but he decided that it was inappropriate. He also acknowledged that it was possible that the applicant was not given a good explanation for why this was done. Mr. Blais testified that he asked Dave Winn for his views on the suitability of three individuals including the applicant and Stefan, for promotion to Department Manager. In response to my question he testified that the applicant was considered for the position, but based largely on Mr. Winn’s comments (above) reinforced by other reviews of the applicant’s work he and his superiors determined that Stefan was the better choice. When asked why, Mr. Blais said that Stefan was like a sponge, easily picking up new tasks. He also testified that the advice he received from other managers was that he was more of a team player than the applicant.
Analysis
17There is no evidence that any of the grounds alleged by the applicant played any role in the decision about promoting Stefan and not him. The circumstantial evidence relied on by the applicant even if entirely accepted do not support the inference he asks the Tribunal to draw. However when the allegations are considered against the explanation offered by the respondents there is simply no evidentiary basis to conclude that any of the incidents complained of considered individually or collectively as a pattern of differential treatment amount to discrimination on any of the grounds alleged.
18The applicant was unable to challenge the respondents’ explanations for the incidents of alleged differential treatment he has complained of. For example the applicant disputed the respondents’ evidence that other employees had their computer access restricted by Mr. Blais, but he has no evidence to the contrary and evidently it is the kind of information that the applicant would not have had access to. In the end the applicant was unable to successfully challenge the respondents’ evidence on this point. On the other hand Mr. Blais was able to relate how and why the decision was made. In response to my question he was also able to identify several of the 6 to 8 individuals who had their access similarly restricted at the same time as the applicant.
19As regards the applicant’s claim that the appointment of Stefan to the joint health and safety committee was part of the pattern of discriminatory treatment he experienced, the evidence of the respondents was that nominations were solicited and Stefan was the only nominee willing to stand. The applicant disputes these facts and perhaps he did not note the notices seeking nominations but that it does not necessarily follow that this was not done. As he acknowledges that he did not put himself forward it all might have passed him by without notice. On the other hand there is no reason to question Mr. Winn’s evidence that he asked a colleague to type a nomination form, that he printed it himself and posted it around the workplace.
20As regards the promotion of Stefan to the manager role, the applicant has no evidence to contradict that of the respondents that while he was considered for the position Stefan was determined to be the better candidate largely based on his perceived ability to adapt to the new circumstances in the department. All he knows is that he did not get the job and Stefan did. He had no evidence to counter the respondents’ that the decision was made because it was felt that Stefan was the better candidate. I have also considered and rejected the assertion of the applicant that Stefan was intellectually challenged and accident prone because the applicant offered no detail to support it. As regards the applicant’s claim that Stefan was hired on a shorter probationary period, the applicant has no evidence to counter the suggestion of the respondents that this may have been a consequence of the merger of the three companies and difference in policies applicable when he was hired. In any case this one incident of alleged differential treatment would be insufficient to support an inference that race had been a factor in that or any of the other decisions the applicant has concerns about.
21The applicant’s only substantial basis for his belief, which I accept as sincere, is his view that he was more qualified and Stefan was not because he had been in the department for two years at that point and was a competent worker who had run the department for much of that time. Indeed the applicant made it plain in his evidence as well as in the issues he raised with the respondents’ witnesses that he believed that only he really understood how to run his department and he believed that the new management structure and procedures were the source of the problems in the Returns Department.
22Two points flow from this. It is clear based on all of the evidence that the applicant had run the Returns Department and had been its de facto manager for some time. Mr. Winn testified in response to a question from me that it was possible that the applicant’s approach and systems he had used might be workable with the volumes prior to the merger but they were not workable with the new volumes of parts moving in and out of the warehouse after the corporate and physical mergers. His perception was that the applicant was resistant to the changes necessary in management’s view and in a way it is entirely understandable that the applicant would be resistant to the changes that were coming if for no other reasons than that his status in the organization would be affected. As he said he felt demoted by the change in computer access which affected in a significant way the way in which he worked. Again that he felt demoted and disadvantaged by these changes is entirely understandable. The second point is that the applicant impressed me as a highly intelligent man, perhaps underemployed in the position, but also as an employee who thought he knew better than management how to operate the department in the circumstances of the corporate and physical mergers ongoing at the time. He rejected out of hand the suggestion that these mergers might have posed management challenges requiring significant changes in procedure. I find that the respondent’s might reasonably have concluded that the applicant would not readily accept the new procedures being introduced into his work area.
23In light of these conclusions I am unable to conclude that a factor in any of the decisions complained of by the applicant, most particularly the decision to promote Stefan to Department manager, was the applicant’s age, ancestry, ethnic origin or race. For all of these reasons this Application is dismissed.
Dated at Toronto, this 7th day of December, 2012.
”signed by”
David Muir
Vice-chair