Mitchell v. Carpenters’ District Council of Ontario, Local 494, 2013 HRTO 1923

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Mitchell

Applicant

-and-

Carpenters’ District Council of Ontario, Local 494

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: November 20, 2013

Citation: 2013 HRTO 1923

Indexed as: Mitchell v. Carpenters’ District Council of Ontario, Local 494

APPEARANCES

John Mitchell, Applicant

Michael Murphy, Counsel

Carpenters’ District Council of Ontario, Local 494, Respondent

Mark Lewis and Stephen Chedas, Counsel

background

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a trade union because of disability or perceived disability. The applicant alleges that he was not called for work by the respondent because of concerns raised by contractors in the construction industry about his physical ability to work.

Respondent’s Hiring Hall

2The respondent operates a hiring hall for its members. Construction companies contact the respondent to hire carpenters or apprentices, drywall carpenters or apprentices, floor layers, and pile drivers and layers. The contractors advise the respondent’s office staff when the member is required to start work, who the member should report to, the nature of the work performed and any special skills that are required.

3The respondent maintains an “Available to Work List” for its members in each of the trades. It also maintains a list of members, organized by trade, who are not working and are not receiving employment insurance benefits (the “No EI List”). The respondent fills a work order by first going to the No EI List and then to the Available to Work List. The administrative staff person calls members in the order in which they appear on the Lists until a member accepts the work, unless the contractor has specific specialty requirements. In that case, members are skipped over if they do not have the qualifications required. The member is given a certain amount of time to accept the work and is responsible for keeping their contact information up to date with the office.

4Contractors can fill jobs without contacting the respondent in certain circumstances. They can name-hire foremen and lead hands, and can recall members who have worked for them during the previous six months without having to go through the hiring hall.

5The respondent has the right to choose a steward and a health and safety representative for particular jobs.

6Prior to 2006, the respondent operated its hiring hall using a manual record-keeping system. In late 2006, early 2007, the respondent went to a computerized system which involved entering the raw data for 630 members into the system, including their names, addresses, contact phone numbers, social insurance numbers, union initiation dates, classifications, and training or specialty qualifications.

The Applicant

7The applicant is a journeyman carpenter and a member of the respondent. By all accounts, he was a very skilled and conscientious worker.

8In addition to being a journeyman carpenter, the applicant had other specialist qualifications, including:

• Construction Safety Association of Ontario Health and Safety, December 4, 2003;
• Construction Steward Training, December 1, 2002;
• Total Stations training, May 2003
• Tube and Clamp/Systems Scaffolding Safety Program, March 30, 2003;
• Rough Terrain Forklift Trucks;
• Confined Spaces; and
• Low and High Lift Forklift Trucks and Aerial Work Platforms.

9From 2005 to 2008, the applicant worked as a foreman at the Windsor Casino Expansion Project (the “Casino”).

Concerns about the Applicant’s Capacity to Work

10The respondent’s senior business representative, Tomi Hulkkonen, filed a declaration and testified about concerns raised by contractors regarding the applicant’s physical ability to work. These concerns are summarized below.

11In 2006, Hulkkonen began to hear comments from rank and file carpenters about the applicant being “shaky”, “dangerous” and an “accident waiting to happen” during site visits at the Casino. Hulkkonen was told of two incidents where the applicant either had an accident or almost had an accident.

12In July and August 2009, Hulkkonen attended a construction site where he was asked to observe the applicant’s work practices by the formwork superintendent. On one occasion, Hulkkonen observed the applicant drop a saw more than once from the table where he was working and noticed that he had difficulty cutting plywood and lumber.

13In March 2010, Hulkkonen spoke to the foreman at another jobsite, who advised him that the applicant’s physical condition was deteriorating and asserted the respondent needed to do something because the foreman believed the applicant was not safe to have on formwork sites.

14In April 2010, Hulkkonen was called by the superintendent at another construction site, who demanded to know what was wrong with the applicant and why he was “shaky”. The superintendent asked Hulkkonen to attend at the site to observe the applicant working. Hulkkonen observed the applicant to be struggling on the site and it did not appear as though he could perform the physically challenging work required with the formwork.

15Hulkkonen testified that he did not act upon the concerns raised about the applicant’s capacity to work in 2009 and 2010 because contractors talk about members’ abilities all the time. He stated complaints by contractors are not responded to unless they are put in writing. When that occurs, Hulkkonen meets with the member and if they agree with the complaint, they are not sent out to work for that contractor. If they dispute the complaint, there is a meeting with the company to resolve it, failing which a grievance is filed.

16In the summer and fall of 2010, Hulkkonen spoke with the superintendent of a large construction company about the applicant. The superintendent was reluctant to hire carpenters when he realized the applicant would be the first journeyman carpenter to be referred out to work. The superintendent told Hulkkonen that he had heard rumours that the applicant seemed to have Multiple Sclerosis or some other medical condition that affected his physical health. The superintendent advised Hulkkonen that if they hired the applicant and he was not fit for the job, he would not keep him on site.

17The applicant was called out to work on this job and was laid off two days later because it was believed he was not fit for work. Hulkkonen advised the superintendent that if the company felt the applicant was unfit for work, they should notify the respondent in writing so they could investigate the situation. The applicant met with Hulkkonen after his lay-off on October 21, 2010. Hulkkonen offered to grieve the lay-off; however, the applicant declined to have a grievance filed.

18During the meeting, the applicant advised Hulkkonen for the first time that he had Ataxia, a medical condition that caused him to age more rapidly than normal. The applicant told Hulkkonen that he felt healthy enough to work as a carpenter. The applicant asked Hulkkonen if he could be referred out to work at a reduced rate of pay. The respondent’s Constitution allows the respondent to send members out at reduced wages if they are incapacitated by age or accident. The applicant also advised Hulkkonen that he believed the respondent was skipping over his name when dispatching work.

Removal from the Available to Work List

19On October 27, 2010, following discussions regarding the applicant and the concerns raised by contractors, the executive of the respondent decided that it required a full medical report from the applicant before he could be referred out for work.

20On November 2, 2010, the respondent wrote to the applicant and requested a full medical report. An excerpt of the letter is reproduced below:

As discussed with you and at the Executive meeting, there have been serious concerns raised by you and by members and contractors to representatives of Local 494 about your ability to perform the typical duties of the job as well as your general safety, and the safety of others, on the jobsite. In light of these concerns, before being placed on the available to work list, the Executive requires that you obtain a full medical report as to whether or not you are fit and able to perform the work you are typically called upon to perform.

21On December 1, 2010, the applicant provided a doctor’s note to the respondent which stated: “Mr. Mitchell is physically able to work safely under present safety standards and procedures”.

22By letter dated February 1, 2011, the applicant was advised that he was placed back on the Available to Work List. He was further advised that the respondent remained concerned about his health and was willing to assist him. The respondent asked the applicant to inform it immediately if his medical condition changed in the future.

23The applicant did not accept any further work from the respondent after being placed back on the Available to Work List in February 2011.

Issues

24The applicant alleges that the respondent discriminated against him when it:

a. Skipped over his name when dispatching work in 2009 and 2010;

b. Removed him from the Available to Work List from October 2010 to February 2011; and

c. Failed to quash rumours from members and contractors regarding his capacity to work.

analysis

Skipped Over on the List – 2009/2010

25The applicant filed job requests for the period July 3, 2009 to October 29, 2010. He alleges that in approximately 14 of these requests, he was not called for work even though he was at the top of the No EI List.

26The job requests filed into evidence by the applicant show the applicant’s name was skipped over on the No EI List and members below the applicant were called out for work. This is contrary to how the respondent was supposed to allocate work. The applicant believes the respondent was influenced by the concerns raised by contractors in the construction industry regarding his capacity to work, and his name was skipped over as a result. The applicant does not assert that the respondent “poisoned his position” with its own members.

27In response to this allegation, the respondent states the applicant was not called for these jobs because some of his qualifications were not in the computer. The respondent asserts that when the manual system was computerized, errors were made inputting the raw data. These data entry errors were discovered by both parties when the applicant was given access to the respondent’s records over the course of the hearing in the matter. Hulkkonen testified that there were approximately 20-30 data-entry errors in the system. There was no documentary evidence to support this assertion.

28The fact that the applicant was not called for work when he should have been, coupled with the comments made by contractors to Hulkkonen about the applicant’s capacity to work, is sufficient for an inference to be drawn that the applicant’s disability or perceived disability influenced how the Lists were being run by the respondent. However, I am satisfied that this inference is rebutted by the evidence that establishes that during the same period of time, the applicant was called approximately 26 times for jobs, including for two contractors who had expressed concerns about the applicant’s ability to work. The applicant accepted only six jobs.

29The applicant testified that he did not receive many of these calls for work. However, the respondent’s evidence is that it called the applicant at his home, on his cell, and messages were left with his spouse. The fact that the applicant accepted six jobs establishes that the respondent was able to contact him. Even if the respondent did not have the correct contact information, its failure to reach the applicant is not discriminatory unless the applicant can establish the respondent used incorrect telephone numbers as a means of not sending him work for discriminatory reasons. The applicant failed to establish this fact.

30The majority of jobs where the applicant’s name was skipped over during this period of time required training qualifications that were not in the computer. Although the applicant had his scaffolding ticket, forklift training, confined space certificate and power-elevated work platforms training, these qualifications were not in the computer. Most of the jobs where the applicant was not called for required a scaffolding ticket. The computer indicated the applicant did not have this ticket even though a hard copy of the ticket was in his file.

31The applicant alleges the respondent did not send him out for scaffolding work because of its perception that he could not do dangerous work. This allegation is not supported by the evidence because the applicant was called out for other work that was potentially dangerous. For example, the respondent continued to call him for jobs that involved height, including roofing and form work for upper stories of buildings.

32The applicant appears to suggest that his qualifications were purposively excluded from the computer. The manual system was computerized in late 2006, early 2007. To establish this fact, the applicant would have to show his training qualifications were in the system in 2007, but were subsequently deleted when concerns were raised about his health in 2009 and 2010. There is no evidence to support the applicant’s assertion and it is purely speculative on his part. Moreover, the applicant’s fall arrest training was noted on the computer. Fall arrest is required when a member wears a harness to work at heights. If the respondent removed training to prevent the applicant from working in dangerous conditions, it would have removed this training record as well.

33The evidence establishes that when the respondent became aware that contractors were not hiring the applicant or were not keeping the applicant employed, it took action that is not consistent with discriminatory motives. When a contractor called the respondent in November 2009 to see who was next in line, and then cancelled the job when he learned it was the applicant and approached another member directly, Hulkkonen directed that a warning letter be sent to the contractor. When the applicant was laid off after only two days of work in October 2010, Hulkkonen offered to grieve the lay-off.

34I find that the applicant has failed to establish that the respondent skipped over his name on the Lists because of his disability or perceived disability. In the majority of cases where his name was skipped over, it was because his qualifications were not noted on the computer. The fact that the respondent continued to call the applicant for work, including for jobs that were potentially dangerous, demonstrates the respondent was not influenced by the rumours in the construction industry regarding the applicant’s capacity to work.

Taking the Applicant off the Available to Work List in October 2010

35The applicant alleges that he was discriminated against when his name was removed from the Available to Work List in October 2010 after he informed Hulkkonen that he had a disability.

36Upon being advised of the applicant’s disability, the respondent made the decision to not refer the applicant for work until it was satisfied that he was capable of working without jeopardizing his own safety and the safety of other workers. The respondent advised the applicant that there had been serious concerns raised by contractors about his ability to perform his work safely and in light of those concerns, the executive required a full medical report that he was fit to do the work he was called upon to perform.

37The respondent did not discriminate against the applicant when it took this step. The disclosure of the applicant’s disability, coupled with the respondent’s knowledge of concerns relating to the applicant’s capacity to work, justified the respondent’s request for a complete medical. The applicant did not provide the medical requested and instead provided a one-line doctor’s note. Despite the inadequacy of the note, the respondent returned the applicant to the Available to Work List by letter dated February 1, 2011, and called him for work commencing February 11, 2011. The applicant did not accept any work from the respondent after being returned to the List.

Failure to Dispel the Rumours

38The applicant alleges that the respondent discriminated against him when it failed to dispel rumours regarding his capacity to work in 2009 and 2010.

39In my view, the respondent did not have a positive obligation to dispel rumours in the construction industry. Its obligation under the Code was to not act on such rumours or on suggestions of perceived disability. Where there was a concern about the applicant’s capacity to work, the respondent was required to obtain objective information and to not rely on speculative or impressionistic information – in other words, rumours in the construction industry. This was exactly what the respondent did.

40The evidence demonstrates that the respondent was not influenced by, and did not act upon, the rumours. It continued to call the applicant for work during the period the rumours were circulating. Where the applicant was not sent out for work despite his ranking on the No EI List, I have found that it is more probable than not that this was because his qualifications were missing on the computer. When the respondent became aware that contractors did not want the applicant to work because of perceptions around his disability, it sent a warning letter and offered to grieve the applicant’s lay-off.

41It is not surprising that the applicant formed the belief that he was not called for work because of rumours in the construction industry regarding his capacity to work. The applicant did not know, nor did the respondent know, that there were errors in the computer about the applicant’s training qualifications until this hearing. These errors resulted in the applicant not being called for work when he should have been called given his placement on the No EI List. Data-entry errors were the reason the applicant was not called for work, and not discriminatory beliefs or motives regarding his disability.

CONCLUSION

42I find that the applicant has failed to establish that the respondent discriminated against him when it did not call him for work despite his position on the No EI list, when it did not quell rumours about his capacity to work in 2009 and 2010, and when it removed him from the Available to Work List pending receipt of a medical. There is no evidence that discriminatory factors played a role in any of the respondent’s actions.

43The Application is dismissed.