HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Timothy Sander
Applicant
-and-
Coca-Cola Bottling Company
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Sander v. Coca-Cola Bottling Company
WRITTEN SUBMISSIONS
Timothy Sander, Applicant
Benjamin Meyers, Student-at-Law, and Lisa Feinberg, Counsel
Coca-Cola Bottling Company, Respondent
Lia Chiarotto, 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 disability. The respondent filed a Response denying the allegations.
2The applicant was represented by Mr. Meyers on May 1, 2 and 3, 2012 during the evidentiary portion of the hearing. Ms. Feinberg represented the applicant on October 16, 2012 during closing argument.
3The applicant is an employee of the respondent and his terms and conditions of employment are governed by a collective agreement between the respondent and his bargaining agent the Canadian Auto Workers, Local 1575 (the “Union”). At the hearing I was satisfied that the Union had notice and that it did not seek to intervene in the Application.
The Scope of the Application
4At the commencement of the hearing there was an issue raised with respect to the scope of the Application based on Mr. Meyers’ opening statement. I find that it is appropriate that I explain the oral ruling that I made at the hearing with respect to the scope of the Application.
5In its Response filed on June 12, 2009, the respondent made a request to have various allegations in the Application dismissed on the basis that another proceeding had appropriately dealt with these allegations. During a preliminary hearing which was convened to address the respondent’s request to dismiss, the request was resolved between the parties and the parties entered into Minutes of Settlement. The parties’ agreement is reflected in a Case Assessment Direction dated October 7, 2010 which states at paragraph 2:
At the hearing, the parties agreed to resolve the Request on the basis of the applicant’s irrevocable withdrawal of any allegations relating to the respondent giving full-time jobs to Kevin Thompson, Bryce Klagger, Adam Kelly, and/or Jim McMahon; and the respondent’s irrevocable agreement that the allegation relating to the respondent giving a full-time job to Gary Montgomery is properly before the Tribunal as part of the Application.
6I note that the applicant was not represented by counsel when he filed his Application. On March 8, 2011, and June 8, 2011, counsel for the respondent wrote to the applicant’s solicitors to seek clarification about the scope and particulars of the allegations in the Application. On June 9, 2011, the applicant’s counsel responded to this letter which set out particulars as follows:
a. That the Forklift operator position awarded to Mr. Montgomery should have been awarded to the applicant;
b. That work assigned to the applicant in 2008, was removed after more senior employees filed a grievance;
c. That the respondent failed to provide relevant information to the Workplace Safety and Insurance Board; and
d. The employer failed to provide the applicant with timely records of employment (“ROEs”) and T-4’s.
7During the course of opening statement the applicant took the position that there were three issues in dispute:
a. That the applicant should have been awarded the Forklift operator position which was awarded to Mr. Montgomery;
b. That there was significant delay by the respondent to provide information to WSIB and to provide the applicant with ROE and T-4’s;
c. That the respondent failed to call in the applicant when there was available modified work.
8The respondent objected on the basis that the last issue had never been particularized by the applicant in the past, either in his Application or after repeated requests for particulars. I permitted Mr. Meyers to meet more than half an hour with the applicant to canvass particulars of the last issue. When the Tribunal reconvened Mr. Meyers advised me that he had no particulars and that he was seeking an adjournment of the hearing so that he could amend the Application to provide the necessary particulars.
9The respondent objected to the request to adjourn, on the basis that some of the allegations in the Application dated back to 2008 and that depending on the allegations it might be severely prejudiced in defending any new allegations. The applicant still had an on-going employment relationship with the respondent and the issues in the Application needed to be decided by the Tribunal without further delay. The respondent also noted that it had tried for almost one year to ascertain particulars from the applicant and that it would be unfair for the Tribunal to grant an adjournment at this late stage.
10Rule 5.7 states:
Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 16 or 17, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.
11I declined the adjournment request on the basis that the applicant had ample opportunity to amend or particularize the Application prior to the hearing. I also considered that in this case the respondent made numerous attempts to clarify issues raised in the Application. Further, the applicant was unable to provide any particulars of the new allegations that he was making at the commencement of the hearing. I note that the allegations of discrimination in the Application date back to as early as 2008, and that even if these were particularized the respondent could be prejudiced in the delay in raising these new allegations. As such, I determined that it would not be fair, just or expeditious to permit the applicant to adjourn the hearing to permit an amendment of the Application, since it would have resulted in substantial prejudice to the respondent and unduly delayed the hearing.
12At the hearing I rendered an oral ruling that the Tribunal would not grant the adjournment request and that the applicant would be limited to the following issues:
a. Whether the applicant was denied the position awarded to Mr. Montgomery for discriminatory reasons;
b. Whether the circumstances surrounding the removal of the applicant to the pallet work in 2008 (the “cooler-van assignment”) was for discriminatory reasons;
c. Whether the respondents failed to provide WSIB with accurate information for discriminatory reasons; and
d. Whether the respondent failed to provide timely ROE’s and T-4’s for discriminatory reasons.
Background
13The respondent’s product demand is seasonal in nature, increasing in the summer months and the holiday season. February to May and September to November are usually the slower months. Warehouse employees usually work in the warehouse building orders for delivery. Distribution workers are usually involved with the delivery of product to the client.
14The applicant is employed as a preferred temporary employee with the respondent. A preferred temporary worker is an employee who has worked a minimum number of hours in accordance with a formula specified in the collective agreement. There are two types of seniority lists for preferred temporary workers, a distribution list and a warehouse list.
15In June 2006 the applicant suffered a workplace injury and applied for WSIB benefits. There is no dispute that the applicant has a disability under the Code.
16The applicant was employed as a preferred temporary employee in distribution when he suffered his workplace injury. The applicant filed a grievance on November 24, 2008 alleging discrimination contrary to the Code.
17On April 15, 2009, the Union and the respondent attended a Mediation session and entered into Minutes of Settlement of this grievance. The Union, the applicant and the respondent agree that the applicant was transferred from the distribution preferred temporary list to the warehouse preferred temporary list because it was easier for the respondent to accommodate the applicant’s medical restrictions in the warehouse. The Union contends, however, that these Minutes of Settlement reflect the intention of the parties to award to the applicant the next available full-time position. The respondent disagrees that this was the intention of the parties or that it was agreed to in the Minutes of Settlement. The next available position was awarded to Mr. Montgomery.
The Evidence
18David Leonard testified on behalf of the applicant. Mr. Leonard held numerous positions, including President and Plant Chair with the Union and its predecessor the United Food and Commercial Workers Union until it was decertified in 2007.
19Mr. Leonard testified that there was a long past practice that the respondent would hire the most senior employee on the temporary list to fill permanent full-time vacancies in each respective department. Mr. Leonard said that a grievance was filed “around 2002” which was referred to arbitration and the parties entered into minutes of settlement with respect to seniority dates of newly hired employees. Mr. Leonard’s evidence on this point was vague and I was not provided with either the grievance or minutes of settlement.
20Mr. Leonard testified that Mr. Montgomery was hired in 2002 but that he was terminated and then reinstated to the preferred temporary warehouse list with loss of seniority. Mr. Leonard could not provide any specifics with respect to when Mr. Montgomery was terminated or reinstated.
21The applicant testified that he was hired in May 2005, and then had his accident in the summer of 2006. He returned to work in September of that year, performing some modified work. He explained that he understood that there was a WSIB appeal by the respondent about the manner of the computation of his compensable benefits in relation to his claim under WSIA because he was a seasonal employee. Though the WSIB case-manager accepted the respondent’s position on March 11, 2011, the decision was reversed on appeal. The applicant explained that he had difficulty getting information about his loss of hours but that the Union assisted him in this regard.
22The applicant testified that he was assigned the cooler-van assignment in the summer of 2008 but that this was removed after employees complained that they were losing the opportunity to work overtime hours. The applicant alleged in his particulars that grievances were filed by employees. He says that he was told that there was a problem with the other employees by the Union. The applicant could not recall who told him this or when it was said. On cross-examination the applicant said that he performed the cooler-van assignment work until the end of the season.
23The applicant testified that through the years he has had numerous restrictions which have fluctuated. He believes that he had surgery in December 2008 (in fact in cross-examination he clarified that the surgery was in December 2007). He stated that his basic permanent restrictions are with respect to the limited use of his right shoulder and arm, which includes no repetitive motion, no lifting above 10 kilos, and no above shoulder work.
24In June 2009, the applicant testified that he applied for the Forklift operator position which was awarded to Mr. Montgomery. The job involves restocking the product into the trucks. The applicant testified in examination-in-chief that he “would help them do the job but no lifting” and that he would always do the job with someone else. He then said that he could do the job by himself, though he had never done it alone, by adjusting the forklift and sliding the product with his left arm and that it involved no lifting. He said that he could not do the job at the same capacity and he could not do it as fast.
25The applicant was not present when the respondent and the Union signed the Minutes of Settlement that transferred him from the preferred temporary distribution list to the preferred employee warehouse list. The applicant received more modified work after the transfer, up until January 2011. The applicant testified that he has not performed any work since that time.
26The applicant testified that he had difficulty receiving his ROE’s and T4s. With respect to the ROEs the applicant had difficulty recalling when (i.e. which years) he did not receive these. When he went to Human Resources Development Canada to claim employment insurance he was allegedly told by an agent that the respondent had difficulty sending ROEs for all of its employees and that this was a problem. He testified that he was the only employee who did not get his 2007 T4 in a timely manner.
27During cross-examination the applicant reviewed his restrictions since his accident. Throughout his employment his restrictions had sometimes gotten worse including not being able to push and pull with his right arm. The applicant’s restrictions got worse from February 2010 for a period of at least 8 weeks, and the increased restrictions included the applicant being unable to drive a vehicle. In March 2011 the applicant also was having difficulties with his left arm, and had restrictions with respect to the use of his left arm, neck and back. The doctor’s note indicates that this was because the applicant was using his left arm to compensate for the inability to use his right arm.
28The applicant also filed a Form 6 Worker’s Report of Injury to WSIB on November 12, 2009, in which he claims to have injured his left shoulder, and states: “Gradual onset: Have permanent impairment right shoulder. Been using shoulder/left limb more at work etc. because of right shoulder restrictions and because right shoulder continues to be painful.” At the hearing the applicant confirmed that this was an accurate statement.
29Counsel for the respondent challenged the applicant’s testimony with respect to his ability to perform the forklift position and referred the applicant to his Reply in which he states that “I was not capable of performing those job duties because of my restrictions so again I was passed over”. The applicant stated that at the time that he filed the Reply he was not aware that he could perform the job and he agreed that he was changing his position with respect to this issue.
30Jim Barr, who previously held a number of positions with the Union and its predecessor, testified for the applicant. Mr. Barr was involved with the resolution of the grievance which was referred to Mediation and ultimately resulted in Minutes of Settlement which transferred the applicant from the preferred temporary employee’s distribution list to the warehouse list. Mr. Barr explained that this was done because the parties believed that there was more modified work that met the applicant’s restrictions in the warehouse.
31Mr. Barr explained that it was his understanding that the applicant was to be given the next available full-time position in the warehouse. He stated that though the collective agreement had no language which gave preference to the most senior employee in the respective preferred list, it was an established past practice. He testified that he told the other employees in the bargaining unit that the applicant was bumping the other employees on the preferred temporary list and that he would be awarded the next full-time position. Mr. Barr believes that this is the reason that he lost the election in June 2009, since some employees were not satisfied with the decision that he had made.
32During cross-examination Mr. Barr agreed that the settlement does not mention at all that the applicant will receive the next available full-time position. Mr. Barr could not explain why such a key term of the settlement was not clearly expressed.
33Mark Pathe, the respondent’s Distribution Supervisor, testified on behalf of the respondent. He testified that he was responsible for finding the applicant modified duties through the years. With respect to the pallet work assigned in 2008, he states that this was a temporary assignment in the summer of 2008, which ended after August 2008, due to a reduction in product demand. Mr. Pathe testified that no one complained to him about the work and that no grievances were filed.
34With respect to the forklift position, the job duties involved pulling a pallet out of the truck with a forklift, then restocking the pallet and then putting the pallet back in the truck. The pallet had to be stocked manually by the employee. Mr. Pathe reviewed the Job Demand Analysis which requires lifting 100-300 cases that weigh from 4.5 to 18 kg, frequently during the shift. Mr. Pathe stated that the job tasks involved lifting anywhere from 34% to 66% of the work day.
35With respect to the applicant’s testimony that he could slide the product from the shelf to the forklift and therefore avoid any lifting, Mr. Pathe stated that the product does not slide, since it is encased in plastic and would require some force, to pull or push it. Mr. Pathe noted that different product is different sizes and shapes and that the product is not always at the same level. Further, the applicant would have to make numerous trips back to the forklift to readjust its height. It was Mr. Pathe’s position that the job could not be performed in the manner described by the applicant and that there would be “a lot of wasted time”.
36It was Mr. Pathe’s position that Mr. Montgomery was the most senior employee in the preferred temporary employee warehouse list. During cross-examination Mr. Pathe was shown this list which identifies that both Mr. Montgomery and the applicant have the same preferred seniority date of January 30, 2008. Mr. Montgomery has a hire date of September 3, 2002 and the applicant is June 27, 2005. Mr. Pathe testified that there is currently a grievance filed by the Union disputing Mr. Montgomery’s seniority date and that he was more senior than the applicant.
37During cross-examination, Mr. Pathe testified that it was the agreement of the parties that the applicant would not bump Mr. Montgomery when he was transferred to the warehouse preferred temporary list, because it was understood that Mr. Montgomery had been with the company performing work in the warehouse for a more significant period of time than the applicant.
38Ms. Jasmyn Kozlowsky, the respondent’s Employee Relations Officer, testified that she was a signatory to the Minutes of Settlement and explained that these were entered into because the parties agreed that there was more work available in the warehouse that met the applicant’s restrictions. Ms. Kozlowsky explained that employees are not allowed to carry over any seniority if they chose to transfer from one seniority list to another and that the employee goes to the bottom of the list.
39Ms. Kozlowsky recalls that the parties agreed at Mediation that the applicant would not bump Mr. Montgomery, because he had already been penalized enough in the past by the loss of his seniority. Ms. Kozlowsky testified that there was no agreement or promise to give the applicant any job in the future.
40Ms. Kozlowsky testified that Mr. Montgomery was given the job because he was in fact doing the job and he was very good at it. Ms. Kozlowsky specified that there is no obligation that seniority be considered when awarding a full-time position to a preferred temporary employee.
41Ms. Kozlowsky explained that in early 2008 there were significant changes made to the payroll system and that there was significant delays in delivering T4s to employees.
42Charles Rotshtetter testified that he held a number of positions with the respondent and that he was the Distribution Centre Manager from December 2008 to February 2012.
43Mr. Rotshtetter attended the Mediation in April 2009. He testified that the Union asked during negotiations that the applicant be placed second, after Mr. Montgomery, on the warehouse preferred employee seniority list. The Union did not want to bump Mr. Montgomery who had already lost his seniority in the past. The respondent agreed to transfer the applicant to this list because everyone agreed that he could more easily be accommodated by the respondent.
44Mr. Rotshtetter testified that Mr. Montgomery was awarded the position because he was performing the job and the feedback was that he was performing well. Mr. Rotshtetter denied that the applicant was the most senior employee.
45Mr. Rotshtetter reviewed the job analysis and stated that the applicant could not perform the essential duties of the job. The applicant could not perform the work in the manner that he described because it would still involve lifting, and the repetitive use of his shoulder through pulling and pushing. The cases could not slide on each other easily because they are encased in plastic and are of differing sizes. Not only could this risk damaging the product but would be very time consuming.
46Though Mr. Rotshtetter does not recall the applicant complaining about his T4, he does recall that a lot of people were complaining in 2008 and 2009 because of the payroll changes.
47Bill Brown, the respondent’s WSIB Specialist, testified that he has been overseeing the Ontario WSIB claims since 2005. He testified that he raised the issue with the WSIB that the applicant was a seasonal employee without a guaranteed work schedule. Therefore, the resulting loss in hours worked by the applicant could be due to the seasonal nature of the business or seniority issues and not necessarily compensable by WSIB. Though initially the WSIB agreed with the respondent’s position with respect to the calculation of lost hours, this was reversed.
48Mr. Brown testified that there was reorganization in the payroll department which was transferred to the United States. A number of employees then resigned and in 2009 this resulted in a number of issues in payroll.
49Mr. Brown stated that there were some delays in advising WSIB of the applicant’s lost hours of two weeks or so. However, the respondent was never fined by WSIB for submitting any late hours on behalf of the applicant.
The Law
50The Tribunal does not have jurisdiction over allegations of general unfairness, breaches of settlement or the collective agreement. The Tribunal only has jurisdiction over allegations of conduct which is contrary to the Code and allegations of unfairness that have some link to the Code. The applicant bears the onus of proving that his Code rights have been infringed by the respondent on a balance of probabilities.
51I have also considered issue of credibility, as explained in the decision in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), where the British Columbia Court of Appeal states at page 356-357:
…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 called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
52I also considered the factors identified by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.
The Payroll Issues
53With respect to the applicant’s evidence I find that he had great difficulty recalling events, including the dates (even the years) that the respondent allegedly failed to provide him with ROEs and T4s, and information to WSIB. No evidence was called with respect to the impact that any of these delays had on the applicant. The respondent’s evidence that the company had a difficult transition of its payroll department was not challenged by the applicant. In fact, even the applicant’s evidence and his witnesses confirmed that a number of employees were complaining about delays in obtaining documents from the respondent.
54Based on the applicant’s testimony that he was allegedly told by HRSDC that the respondent had difficulty sending its ROEs for all of its employees, I find that the applicant has not established that he was treated in a discriminatory manner with respect to any of these payroll issues.
55I understand that the applicant is dissatisfied with the length of time that it took to process his objection to the initial WSIB decision and the delay in submitting hours to WSIB. However, the respondent is entitled to challenge and object to the payment of WSIB to workers. I note that the employer was initially successful in its objection and this decision was reversed on appeal. There were unique circumstances in this case which resulted in some difficulty in determining whether the applicant had a loss of earnings since he was a temporary employee whose hours of work were seasonal in nature and not guaranteed. This was the contributing factor in any delay for submitting his hours to the WSIB. I have considered the evidence on this point and I find that the applicant has not established on a balance of probabilities that there was any discrimination with respect to these issues.
Removal of the Cooler-Van assignment
56The applicant’s testimony on this point was vague and largely based on unattributed hearsay and double hearsay. Neither he nor any of his witnesses presented any grievances filed by employees as he alleged. The applicant also agreed that he performed the work until the end of that season. I accept Mr. Pathe’s evidence that the work was no longer assigned to the applicant because it was the end of the season. I have considered the evidence on this point and I find that the applicant has not established on a balance of probabilities that there was any discrimination with respect to the removal of the cooler-van assignment.
The Forklift-Position
57The applicant alleges that he should have been awarded the forklift position that Mr. Montgomery was awarded.
58There is dispute between the applicant’s witnesses and the respondent’s witnesses with respect to the Minutes of Settlement. Both of the applicant’s witnesses testified that it was understood that the applicant would be awarded the next available position. Mr. Barr testified that it was known throughout the bargaining unit that this was the understanding. However, I note that the applicant himself did not testify that it was his understanding that he would be awarded the next available position. To a large extent the applicant’s testimony is consistent with the respondent’s understanding of the Minutes of Settlement. I find it difficult to accept that every employee in the bargaining unit knew that the applicant would be awarded the next full-time position, since the applicant himself did not have any knowledge of this important fact.
59I also note that during the negotiation of the Minutes of Settlement that the parties were not in the same room and that the Mediator was using shuttle mediation. It may be that there was a miscommunication or a misunderstanding between the parties. However, clearly on the face of the Minutes of Settlement there is no reference to the applicant being awarded the next full-time position. The Union and the respondent are sophisticated parties that have negotiated the settlement of numerous grievances in the past. I find that had they agreed to such a fact, that this would have been included in the Minutes of Settlement.
60Mr. Montgomery had been employed with the respondent for almost three years longer than the applicant and had been performing work in the warehouse for a number of years. Though I understand that he had lost his seniority and was reinstated through the settlement of a grievance that he filed, there is no dispute that he was a good employee who had been performing the job in question in a satisfactory manner. I cannot accept the applicant’s assertions that he should have been selected for the job instead of Mr. Montgomery, nor, more importantly, that he would have been but for Code-related factors.
61The collective agreement does not provide that the most senior employee in the preferred temporary seniority list will be awarded the next available position. With respect to the applicant’s witnesses that there was such a past practice, I find that the evidence fell short of establishing this practice. Regardless, even if such a past practice does exist, the circumstances of this case are unique since the applicant was given preferential treatment by being transferred from one seniority list to the other. I accept the testimony of the respondent’s witnesses on the reasons why Mr. Montgomery was selected for the forklift operator position.
62The applicant has not established that he should have been awarded the position and it would have been inherently unfair for the applicant to be given preference over Mr. Montgomery by displacing him in the seniority list. I note that allegations of unfairness or a departure from alleged seniority rules or established practices are not in and of themselves violations of the Code; they are only potentially relevant to the extent that, if established, the applicant could ask the Tribunal to draw an inference that any such irregularities were explained by the improper consideration of the applicant’s disability.
63Therefore, the applicant has not established evidence, either directly or from which I could draw an inference, on a balance of probabilities that the respondent discriminated against him when it awarded the forklift position to Mr. Montgomery.
64Regardless, I find that I would separately dismiss this aspect of the applicant’s claim because based on the evidence that was presented at the hearing it is clear that the applicant cannot perform the essential duties of the forklift position. The majority of the tasks assigned to the position involve the use of the right arm and shoulder. The applicant cannot perform the core lifting duties associated with the position. The applicant acknowledged this in both his Application and his Reply.
65At the hearing he testified that he could perform the lifting functions with the use of the forklift. However, I find that the manner that he proposes to perform the position would still require him to use his right arm and shoulder through repetitive pushing and pulling motions to slide the product, which is inconsistent with his medical restrictions. On this point I accept the evidence of the respondent’s witnesses. I note that the evidence also indicates that the applicant experienced difficulties with his left arm since 2009 because of overuse to compensate for the limited use of his right arm.
66During closing argument counsel suggested that the respondent breached its procedural duty to accommodate the applicant because the applicant testified that he could perform the forklift job and that it failed to investigate this claim. However, I find that in this case the applicant only raised for the first time at the hearing that he could perform the forklift position in the manner that he proposed and that this is a significant change in the positions identified in his pleadings. Given the applicant’s concession that he could not perform the job, the respondent had no duty to consider or investigate the manner proposed by the applicant at the hearing.
67For all of these reasons the Application is dismissed.
Dated at Toronto, this 17th day of June, 2012.
“Signed by”
Geneviève Debané
Vice-chair