Crerar v. LSI Supply Inc., 2013 HRTO 1596

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Crerar Applicant

-and-

LSI Supply Inc. Respondent

DECISION

Adjudicator: David Muir Date: September 23, 2013 Citation: 2013 HRTO 1596 Indexed as: Crerar v. LSI Supply Inc.

APPEARANCES

Robert Crerar, Applicant Self-represented

LSI Supply Inc., Respondent Hal Rolph, 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.

2The applicant was employed by the respondent to maintain the maintenance crib – the tool room for a major client of the respondent. In effect the client A.P. Plasman (“Plasman”) contracted for the operation and maintenance of a tool room on their site including the services of a crib attendant. The applicant was the crib attendant. He was responsible to keep the tool room clean and orderly, well stocked and advise his superiors and buyers when items were needed for the tool room. The tool room is like a small store with inventory of parts and equipment needed to maintain factory machinery of the client.

3The applicant was terminated by the respondent after returning from a vacation in March 2011. The applicant alleges that he was terminated shortly after his 60th birthday. The applicant alleges that when he returned from his vacation on March 14, 2011 he was asked to speak with the owner of the respondent who terminated his employment. He alleges that an official of the respondent said to him that “at least now you will be able to collect your pension.” The applicant alleges that there was never any problem with his work. As framed at the hearing the applicant believes that he was fired to punish him and his family on his 60th birthday.

4The respondent asserts that the applicant’s age had nothing to do with their decision to dismiss the applicant. The respondent alleges that their decision was motivated entirely by the fact that its biggest client for whom the applicant provided services wanted him replaced.

5A hearing was held in Windsor on September 12, 2013. I heard from the applicant and his son Randy Crerar who recruited and hired the applicant to work for the respondent. I also heard from Jon Varey, who took over the business of the respondent in August 2010; Mike Atkinson the applicant’s immediate supervisor at the time of his dismissal and, Curtis Ferguson, the representative of Plasman. An order excluding witnesses was made on consent.

Evidence and Analysis

6The Application is dismissed. For the reasons that follow I find that there is insufficient evidence, in fact no substantial evidence, to support the applicant’s contention that his age was a factor in the decision to dismiss him from employment. That said it is not surprising that the applicant had suspicions about his treatment by the respondent. As a consequence of the somewhat unusual nature of his employment and the fact that he reported to his son it is possible that he was not made aware of the issues with his performance identified by Plasman and accordingly he had no real opportunity to respond to them. These somewhat unusual circumstances and what I find was the mere coincidence of his dismissal with his 60th birthday reasonably caused the applicant to connect these events. Whether the applicant was treated fairly or not, the issue before me is whether his age was a factor in the decision to dismiss him from employment.

7The evidence of the various witnesses establishes the following facts.

8Amongst other activities the respondent carried on business as a distributor of industrial machine parts and equipment such as bearings, power transmission components and other industrial supplies and equipment. A very important customer of the respondent was Plasman. a Windsor industrial enterprise.

9As indicated Plasman contracted with the respondent to supply parts and maintain a tool room on its site to support Plasman’s manufacturing operation. Whether strictly required by the agreement or not the respondent also provided a full time tool room attendant to work on Plasman’s premises. This was the applicant.

10At the time of this agreement in late 2008 the respondent’s representative servicing Plasman was Randy Crerar. He facilitated the hiring of the applicant, his father, to work on-site at Plasman as the attendant beginning sometime in mid-2009. No one was precisely sure when he began as he worked for periods beginning in January 2009 but was laid off for several months before returning permanently, likely in August 2009. The job of the attendant was essentially to run the tool room. The applicant’s primary responsibility was to keep the tool room stocked and maintained in a way that was useful for those seeking to obtain parts and equipment - employees of Plasman.

11The applicant had no background in this kind of work. He had been an insurance adjuster for all of his adult life and had worked with computers for his last 11 years in the insurance industry. He had no industrial experience; had not worked with machine tools and equipment and had never worked in a tool room.

12The evidence established that Plasman became dissatisfied with the operation of the tool room. Over time the concern focussed on the ability of the applicant to do the job. Curtis Ferguson engineering manager at Plasman testified. He had worked with Randy Crerar, the applicant and others at the respondent in the past in a similar arrangement when employed by another firm. However this was a different kind of operation with different needs, according to Ferguson. What had worked in the past apparently did not work at Plasman.

13During the initial set up of the tool room there were a number of issues that had to be dealt with, many of which had little to do with the applicant. However as indicated the applicant was running the tool room on a full time basis as of August 2009 and according to Mr. Ferguson there were problems clearly within the applicant’s responsibility that were identified and were not being addressed. Three issues were of critical importance as far as Mr. Ferguson was concerned. First was inventory control – the store room was like a little store, there needed to be the product on the shelves that staff needed. Accordingly the applicant was responsible to ensure that the tool room remained stocked with items that were used regularly. This would require that he know what was in inventory so that orders could be placed through Plasman’s purchasing system in a timely way. Because inventory control was not adequate, according to Ferguson, the applicant was not able to make timely orders with the result that the tool room did not have adequate stock of things that were needed regularly and had too much stock that was not needed. Ferguson conceded that there were occasions where the lack of stock would not have been the applicant’s fault, but far too often in his estimation there were issues with items required regularly that should have been dealt with by proper inventory management. He was also concerned about the physical organization of the tool room, taking particular issue with things being stored on the floor and on the top shelf of shelving units.

14Mr. Ferguson testified that he raised these issues with the owners of the respondent prior to Jon Varey taking over the business in August 2010 and recalls at least two or three meetings where the applicant would have been present where these issues were discussed. As Ferguson noted, the applicant was not his employee and so he did not speak to the applicant directly. He also does not know what if anything would have been said to the applicant by his superiors, either his son or the principles of the firm prior to Jon Varey.

15The applicant acknowledged that there were such meetings but he did not understand that they were primarily concerned with issues within his control. He also testified that no one with the respondent spoke to him directly about his performance. It was also clear from his evidence at the hearing that he did not understand what Ferguson’s issues were. He relied on the fact that nothing could be purchased without a purchase order issued by Plasman. However Mr. Ferguson’s concern was that the applicant, because of the poor inventory management, was not making requests for purchase orders in a timely way.

16Things came to a head in a letter from Plasman dated September 13, 2010 advising the respondent of its continuing dissatisfaction with the services being provided by the respondent. The letter provided details of their concerns and put the respondent on probation. The letter outlines a number of concerns with the performance of the respondent, some of which had nothing to do with the applicant, but some of which clearly did, although again it is not clear whether this fact was communicated to the applicant. The applicant was not shown a copy of the letter at the time.

17Randy Crerar who was the account manager for A.P. Plasman received the letter. He immediately forwarded it to Jon Varey, the new owner of the respondent.

18Jon Varey testified that this letter was received just a month after he had invested a significant sum to take over the business and it indicated that he may be losing his far and away largest client. He was concerned.

19Randy Crerar was directed by Jon Varey to remedy the situation but very shortly thereafter resigned. Mike Atkinson was then hired to replace Randy Crerar in November 2012 and was told that a key responsibility was to fix the relationship with Plasman. It became clear to Mr. Varey and Mr. Atkinson that Plasman was very dissatisfied with the respondent’s performance including a significant concern related to the operation and maintenance of the tool room by the applicant. Mr. Ferguson and Mr. Atkinson both testified that Mr. Ferguson suggested on more than one occasion that the applicant had to be replaced.

20Randy Crerar gave evidence at the hearing. He testified that there were no concerns expressed about the applicant’s work. There were issues raised but they related to the ownership structure of the respondent which were of some concern to Plasman. Mr. Crerar disputed the evidence of Curtis Ferguson in several respects. He testified that Curtis Ferguson asked him to set up the tool room at Plasman and asked for the same team to do it as had been engaged at the prior firm. This would have included the applicant but there was no evidence that Mr. Ferguson specifically mentioned the applicant. He testified that while there were clearly issues with the services being provided by the respondent to Plasman, he did not understand that they were related to the work being done by the applicant.

21Mr. Atkinson testified that while the decision to dismiss the applicant was ultimately Mr. Varey’s, it became his call on the timing of it because he was working the Plasman account and when the applicant left it would be up to him to manage the tool room. He testified that he and Mr. Varey discussed it and decided that he should advise Mr. Varey when the time was right. He testified that he made the call to Mr. Varey when he felt confident in his ability to service Plasman and when he felt that he had reached the limits of his ability to improve the applicant’s performance. He testified that this moment came sometime around February 2010. He also testified that he was supposed to have taken the termination meeting with the applicant but for some reason he could not and Mr. Varey took it on by telephone from Florida.

22The parties are agreed that Mr. Varey and the applicant spoke on March 13, 2010 the day the applicant returned from a holiday to celebrate his 60th birthday. The parties are also agreed that the conversation was brief and the applicant was not told that he was being dismissed for performance reasons. The applicant was told that the respondent was going in a different direction and that his services were no longer required. The applicant testified that another employee asked him after the telephone call, what it was about? The applicant replied that he had been fired. This individual, who the applicant believed had not known that he was to be dismissed, said something to the effect that at least now he could collect his pension.

23The applicant lead evidence of a conversation he and Mr. Atkinson had about deferring salary from the respondent in order that the applicant could collect a pension. It is not clear what the result of this conversation was but it is fair to say that Mr. Atkinson at least knew that the applicant was entitled to a pension of some kind. Mr. Atkinson testified that such a conversation did take place and understood it to be a scheme to defraud the pension plan.

24The applicant also testified that a claim he made for benefits under the respondent’s benefit plan in February 2010 was denied although he only learned about this in March just after his dismissal. The applicant relies on this as further indication of discrimination. This allegation had not been made by the applicant prior to the hearing and the respondent could not respond directly to it. Mr. Varey testified that he did not know how or why the claim would have been denied.

25The respondent led evidence about the replacement’s qualifications and experience which were at least equivalent to those of the applicant. He had worked in an industrial environment, a warehouse environment and had worked in construction. He was also 23 at the time. Mr. Atkinson testified that he has met expectations. Mr. Ferguson testified that from his perspective the replacement performs the role well and within a month of his starting his issues with the tool room had been addressed. The relationship from his perspective is thriving.

26As can be seen from the narrative above the applicant has no direct evidence of discrimination. That is not unusual in these kinds of cases. Employers rarely tell employees directly that we are firing you and replacing you with a younger employee because you are too old. However the applicant argues that an inference can be drawn from the following circumstances:

a. That no one told him there were issues with his work. In fact he argues that Mr. Ferguson on behalf of A.P. Plasman requested the same team come as had successfully performed a similar role with a prior firm;

b. Despite the allegations of serious concerns with his work the respondent waited until his 60th birthday to effect the dismissal;

c. The denial of the benefit claim and by implication the termination of his benefits before his employment had been terminated;

d. That his replacement was 23 years old and had limited experience.

27In my view these circumstances while more than enough to support reasonable suspicions are not enough in the circumstances of this case to support the inference the applicant asks that I draw. I also agree with the respondent that even if there is a prima facie case of discrimination advanced here, the respondent has provided a non-discriminatory explanation for their decision. It is clear from the evidence that the major client of the respondent was threatening to end the relationship and rightly or wrongly placed a significant burden of fault for the problem on the applicant. Had the respondent not made the decisions they did the applicant may well have ended up without a job in any case when Plasman terminated the contract with the respondent.

28As regards the first circumstance relied on above, this in my view is the most problematic issue for the respondent. But for the unusual nature of the employment relationship the respondent would have had to explain what appears to have the absence of the normal approach to coaching and discipline of an underperforming employee. I find that it may not have been clearly communicated to the applicant that his job was in jeopardy. While in and of itself not evidence of discrimination the fact that an employee is never told that there are issues can give rise to questions about the reasons for an employer’s actions. However in this case, given the circumstances, those questions are primarily answered by the evidence of Mr. Ferguson who testified that he had serious concerns about the ability of the applicant to meet his expectations. The fact that the respondent did not alert the applicant to the issues is perhaps unfair but it is not evidence of discrimination. In my view the evidence is clear that the decision to dismiss the applicant was a response to the demand of a major client that changes be made, including the replacement of the applicant; his age was not a factor in the decision.

29The test for proving discrimination in circumstantial evidence cases such as this was described in Clennon v. Toronto East General Hospital, 2009 HRTO 1242, at para. 69, as follows:

The three part test for circumstantial evidence cases is well-established in the Tribunal’s jurisprudence and recently has been stated in Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 at paras. 51-52. The application of this test involves the following three steps:

1. the initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that she was discriminated against with respect to her employment on the basis of the prohibited ground of age;

2. upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration;

3. if the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground.

30The Clennon decision went on, at para. 75, to discuss (with qualifications) the sometimes related “Shakes” test, which deals with the requirements for establishing the first part of the general circumstantial evidence test noted above, in certain types of cases:

The classic statement of what is required to establish a prima facie case of discrimination in a circumstantial evidence case pertaining to hiring or promotion was articulated by this Tribunal in Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 at para 8919. Essentially, in these kinds of cases, a prima facie case is established by proving the following:

a) that the applicant was qualified for the particular employment;

b) that the applicant was not hired; and

c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.

31The respondent argued in answer to the first element of the test that when the client asks that an employee be removed they are not qualified for the position. I am not sure I entirely agree with this approach because clearly if the reasons the client wanted an employee replaced were discriminatory the employer could not hide behind such a request. However in this case I have also considered whether there is any evidence that Mr. Ferguson’s views of the applicant were informed by concerns about his age. There is no such evidence. Mr. Ferguson had known the applicant since 2008 – before the relationship between Plasman and the respondent – they had worked together under a similar arrangement. He knew generally how old the applicant was and this did not appear to be an issue for him. He also apparently had been satisfied with his performance in his prior experience with him. The fact that the applicant was perceived to be unable to perform adequately in a different workplace with different requirements and systems does not give rise to any inference that the applicant’s age was informing Mr. Ferguson’s views of the applicant. I would also observe that Mr. Ferguson and the applicant are not very far apart in age.

32As regards the second circumstance above – that notwithstanding the complaints of incompetence they waited six months to terminate him near his birthday I accept the respondent’s evidence in this regard. Mr. Atkinson started in November. He needed some time to assess the situation and learn what systems were in place and what would be required to fix the problems. He testified that he spoke with Mr. Varey about the issue and agreed that they would take the time to do this assessment and that Mr. Atkinson should make the call when the time was right. He did so when he concluded that he understood the workplace well enough to manage it without the applicant and also when he felt that the applicant had progressed as far as he could. The suspicions the applicant holds about the timing of his dismissal are not enough to counter this essentially un-contradicted and plausible evidence.

33As regards the termination of his benefits prior to his dismissal, in my view this fact is neither here nor there. Clearly a decision to terminate the applicant had been made. It is not clear how the fact that his benefits were terminated early adds anything to the applicant’s case. I also observe that it may have been a mistake, either on the part of the respondent’s accounting function or the insurer. It is not clear but assuming it is was a result of some act of the respondent it does not in my view tend to support the conclusion that a factor in the decision to terminate the applicant was his age.

34The individual who replaced the applicant was much younger than the applicant. However in the absence of any other indication that the applicant’s relatively advanced age was a factor in the decision to replace him, this fact alone is insufficient to establish discrimination.

35For all of these reasons the Application is dismissed.