Compagnon v. Manufacturing and Technology Centre, 2012 HRTO 262

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darlene Compagnon

Applicant

-and-

1378045 Ontario Inc. o/a Manufacturing and Technology Centre and Deborah Comfort

Respondents

DECISION

Adjudicator: Mary Anne McKellar

Date: February 7, 2012

Citation: 2012 HRTO 262

Indexed as: Compagnon v. Manufacturing and Technology Centre

APPEARANCES

Darlene Compagnon ) Self-Respresented

1378045 Ontario Inc. o/a Manufacturing, ) Technology Centre and Deborah Comfort ) Ian Johncox, Counsel Respondents )

Introduction

1This is an application under section 34 of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (“the Code”). The applicant (“Compagnon”) alleges that the respondent corporation (“MTC”) and the individual respondent (“Comfort”) discriminated against her on the basis of disability when her employment with MTC was terminated without notice on January 26, 2010, 12 days after Compagnon had suffered a fractured ankle. I conducted a hearing into this matter on January 6, 2012.

The Facts

2I heard testimony of three witnesses: Jim Greenwood, MTC’s former Vice-President Operations; Deborah Comfort, MTC’s Manager of Logistics; and Compagnon herself. In addition, Compagnon has sought to rely on a number of unsworn written statements of her former fellow employees at MTC who were not in attendance at the hearing. Counsel for MTC objected to these statements as inadmissible in the absence of the authors’ availability to be cross-examined by him with respect to their statements. I made an oral ruling that the statements were inadmissible, and then heard viva voce testimony from the witnesses identified above.

3MTC commenced operations in approximately 2000. The activities that it engages in are ones divested from Sony Canada, and relate to the returns, repair, and retail of refurbished electronic products. MTC’s CEO is a former Sony executive employee, and so is Greenwood. After Greenwood retired from Sony, he joined MTC in the capacity indicated above. That occurred in November 2009.

4Greenwood’s specific role was to examine MTC’s operations and look for efficiencies and cost savings. This mandate was dictated by the fact that business was declining because the consumer electronic products that MTC handled were becoming more robust and less likely to need repair, while simultaneously dropping in price to the point where it was often cheaper for a consumer to replace a product off warranty than to have it repaired. One of the areas that Greenwood looked at was MTC’s staffing levels.

6When Greenwood commenced employment with MTC, it had approximately 300 employees, 200 of them in Whitby Ontario and another 100 in Grand Rapids Michigan. Compagnon was one of the employees in Whitby, and this decision is concerned exclusively with that particular workplace.

7Compagnon was one of 10 or 12 employees who worked in MTC’s receiving department. Comfort was the manager of that department.

8Greenwood examined MTC’s operations by arranging for an external ISO audit process, and he also looked at operations and staffing himself, an assessment that was enabled by the electronic inventory control system already in place at MTC which tracks precisely which employees touch any particular product that is received by MTC and how long it takes them to perform whatever functions are assigned to them with respect to it. From these observations, Greenwood determined that MTC could reduce its number of employees. He developed targets on a department by department basis, and asked the managers of those departments to select the individuals whose employment would be terminated.

9Comfort was initially told she had to select one employee in the receiving department for termination. Her first criterion for selection was productivity, but when she examined the figures, all of the employees appeared to be performing more or less within the same acceptable range with only slight fluctuations. Ultimately, Comfort decided Compagnon’s employment should be terminated, largely on the basis that she had a more extensive disciplinary record than other employees in the department. It is not entirely clear when this decision was made, but it was a few days prior to a meeting that occurred on January 26, 2010. At that meeting, Compagnon’s employment, along with that of five other employees from other departments, was terminated effective immediately. The termination letter provided to each employee indicated that they were being terminated for “shortage of work”, and this was consistent as well with the coding that appeared on the ROE that was issued. Each employee received pay in lieu of notice of termination calculated in accordance with their length of service pursuant to the entitlements in their employment contracts and the Employment Standards Act, 2000.

10Compagnon and her five fellow employees let go on January 26, 2010, were not the first to lose their jobs as a result of the downsizing implemented by Greenwood. Just one week earlier, on January 19, 2010, five other employees had been terminated for “shortage of work”. Their ROEs also reflected “shortage of work” as the reason for termination, and they too received termination pay in lieu of notice. By the time Greenwood left MTC in June 2010, its workforce had been reduced from 200 or so employees to about 140. That reduction included one additional receiver position, the incumbent of which was terminated in April 2010.

11At the time her employment was terminated, Compagnon was suffering from a temporary injury. On January 14, 2010 she fell and broke her ankle. She advised Comfort of this fact immediately, including the prognosis that it would probably heal in 6 weeks. If Compagnon missed any work because of this injury, it was but a single day. When she returned to work she was placed in another department where she could perform duties sitting down. Compagnon agreed that neither Comfort nor any other managerial person from MTC said or did anything to give her cause to believe that her broken ankle caused them any difficulty or that they did not want to accommodate her. She also agreed that other MTC employees are placed on light duties from time to time, and for varying lengths of time.

12On January 25, 2010, Compagnon’s crutch skidded on the floor near her locker. She completed a written incident report in which she reported having fallen and requested additional carpeting in the area. An inspection was conducted by one or more members of the joint health and safety committee who concluded additional carpeting was not necessary. This decision was communicated to Compagnon by Comfort. Compagnon characterized Comfort as having told her simply to “be more careful”. Comfort did not deny telling Compagnon to take care, but said she also suggested that perhaps getting a cover for the crutch tips would help. Compagnon was not satisfied with this response and on January 26, 2010, she repeated her request for additional carpeting. Additional carpeting was placed in the locker area sometime during the course of that day, but Compagnon maintains it was not put where she wanted it. No more need be said about the carpeting request in this decision since Compagnon did not challenge Comfort’s evidence that she had decided which receiver’s employment should be terminated before the issue relating to the carpet arose. Compagnon confirmed in cross-examination that her contention in this proceeding was simply that her employment had been terminated because she had a broken ankle.

13As already indicated, after Compagnon broke her ankle on January 14, 2010, and before the termination decision was communicated to her on January 26, 2010, she could not point to any statement or conduct on the part of management that suggested the broken ankle was an issue for MTC. Instead, what she relied on in asserting that there was a causal link between the broken ankle and her termination was the employee rumour mill. What appears to have happened is that employees naturally concerned about the downsizing initiatives of Greenwood, began to speculate on what criteria were being used to select the individuals who would be terminated. One theory which had some currency was that anyone on light duties would be let go. Compagnon testified that she therefore believed that her employment was vulnerable the moment she broke her ankle. She continued to think there was a causal connection after the January 26, 2010 meeting and her receipt of the termination letter because she did not perceive there to be any “shortage of work” in the receiving department. She also maintained that, despite having signed off on the various disciplinary warnings she received during her employment at the time she received them, they were not in fact warranted, and that she was no worse than other employees because “everybody makes mistakes”. Compagnon did not dispute Comfort’s assertion that Compagnon had a more extensive formal disciplinary record than other employees in the receiving department.

14I have no doubt of the sincerity of Compagnon’s belief that she was chosen for termination of employment because of her broken ankle and that employees on light duties were targeted for termination. That belief however is not borne out by an objective examination of the facts:

a) If her broken ankle was the proximate cause of her termination, why was she not terminated on January 19, 2010?

b) Why is it that none of the other employees terminated on January 26, 2010 were performing light duty assignments at the time of their terminations?

c) Why did other employees with light duty assignments remain employed after January 26, 2010? and

d) What possible advantage would MTC gain by terminating her but paying wages in lieu of notice up to the point (4 weeks after termination) at which she would have recovered from her temporary injury in any event (6 weeks from January 14, 2010) and been able to return to regular duties?

15When confronted in her testimony with the above questions, Compagnon repeatedly referred to the witness statements she had wished to rely on, but which were ruled inadmissible. Those statements, which had been filed with the Tribunal prior to the hearing and which I acknowledged to the parties I had reviewed, would not have assisted Compagnon even had they been admitted. One is from an individual who writes of hearing someone else say in a meeting that Compagnon was terminated because of her broken ankle, but does not particularize who made the statement, whether the speaker was a member of management, or what the basis of that person’s knowledge or opinion was. Even if I had admitted that statement and believed the author heard someone make that comment, in the absence of the kind of further information I have just enumerated, such evidence could not have satisfied me that MTC management chose Compagnon for termination because of her broken ankle, particularly when weighed against Comfort’s direct evidence as decision maker of the basis on which she chose Compagnon for termination.

16The evidence before me did not establish that Compagnon’s broken ankle was a factor in MTC’s decision to terminate her employment, and I so find. Having made that finding, this Application must be dismissed because no contravention of the Code has been established. I have no authority, independent of determining whether the Code has been contravened, to examine the rationale for MTC’s decision to downsize the receiving department, or whether Compagnon was the best employee in that department to have chosen for termination.

Disposition

17This Application is dismissed.