HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Theresa Girdharrie
Applicant
-and-
Cardinal Fasteners, a Division of Talbot Sales Inc. and Front Line Work Force Inc.
Respondents
DECISION
Adjudicator: Ian R. Mackenzie
Indexed as: Girdharrie v. Cardinal Fasteners, a division of Talbot Sales Inc.
APPEARANCES
Theresa Girdharrie, Applicant
Samantha Seabrook, Counsel
Cardinal Fasteners, A Division of Talbot Sales Inc., Respondent
Gordon Bent, Counsel
Front Line Work Force Inc., Respondent
Aris Gyamfi, Counsel
Introduction
1Theresa Girdharrie filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age. A decision on whether there was a reasonable prospect of success of the Application was issued on February 29, 2012 (2012 HRTO 430). That decision stated that it could not be concluded that there was no reasonable prospect of success and a hearing on the merits was scheduled.
2This Application relates to the decision of the respondent Cardinal Fasteners, a Division of Talbot Sales Inc. (“Cardinal Fasteners”) to hire a younger woman over the applicant for a position in its packaging plant, as a machine operator. The younger woman did not testify. The parties agreed that her name was not relevant for the purposes of the hearing. Accordingly, I have not identified the younger worker in this Decision, but have simply referred to her as the “younger worker”.
3I heard testimony about Front Line employees being hired as permanent employees to other positions at Cardinal Fasteners and their ages. The applicant testified that a younger male was hired as a permanent employee in the hand packaging department. She also testified that another young male was hired to set up the machines. These were all individuals who had been initially placed by staffing or personnel agencies. In the absence of any evidence that Cardinal Fasteners had requested referrals from these staffing agencies based on age, I find that the evidence of younger workers being hired for these positions (all of which were not machine operator positions) is not relevant to the Application.
4An order excluding witnesses was granted. Kimberly Briscoe was allowed to remain in the hearing room as an advisor to counsel for Cardinal Fasteners and Doug Wedgerfield was allowed to remain in the hearing room as an advisor to counsel for Front Line Work Force Inc. (“Front Line”).
SUMMARY OF EVIDENCE
5The applicant was 59 years of age in 2009 (the relevant time in this Application).
6The applicant worked at Cardinal Fasteners, a Division of Talbot Sales Inc. (“Cardinal Fasteners”) from 2000 to 2005 through a personnel agency (StaffPlus Agency). Cardinal Fasteners is a supplier of packaged industrial fastener hardware products and services. The applicant worked as a packager. In 2005 she left Cardinal Fasteners to pursue a training opportunity. In April of 2007, the applicant returned to work at Cardinal Fasteners through StaffPlus. In July of 2007, Cardinal Fasteners changed its personnel agency to Front Line Work Force Inc. (“Front Line”). At the request of Cardinal Fasteners, those of its workers with StaffPlus were transferred to Front Line.
7Cardinal Fasteners is a family-operated business. Gordon Turner is the Chief Executive Officer; his spouse, Nancy Turner, had a management role in the company; his son, David Turner, is the production manager; and his daughter, Kimberly Briscoe, is the general manager.
8From near the beginning of her assignment to Cardinal Fasteners, the applicant was a machine operator. The operator puts screws, nails or washers (or a combination) into the machine, pushes a button and the objects fall into a bag and are sealed. A green light comes on when the machine is ready to operate and there is about two seconds between lights. The applicant also did hand packaging and sorted rejected bags. On her own initiative, the applicant also cleaned the lunch room, prepared the coffee and mopped the floor.
9The applicant left her assignment with Cardinal Fasteners in 2005 to enrol in an office administration program. After completion of the program she was not able to find work in the office administration field. In 2007, she made a social call to Nancy Turner. She testified that Nancy Turner asked her if she was working and when the applicant told her she was not, she said she would speak to David Turner about having her come back. Nancy Turner testified that the applicant asked her if there was work available. The applicant was called back to work by StaffPlus shortly after the phone conversation and started working there on April 17, 2007.
10On her return, she was assigned to the same packaging machine she had worked on previously. She then was assigned to another packaging machine and mostly worked on that machine until the end of her assignment. She described her relationships in the workplace as being the same as the previous period with Cardinal Fasteners. The applicant also described her job performance as the same as before. She testified that she always got her assigned work done before the end of her shift.
11Nancy Turner testified that the applicant was assigned some office work on her return to Cardinal Fasteners in 2007. There was evidence provided on her performance on these tasks by Nancy Turner. Nancy Turner was not involved in the decision to hire the younger worker to operate the vertical bagger. I find that this evidence related to a different position is not relevant in determining whether the applicant was qualified to operate the vertical bagger and have therefore not summarized it.
12After Front Line took over as the staffing agency for Cardinal Fasteners, on or about July 23, 2007, the applicant was asked to fill out a form for Front Line. The form collected personal information (address, telephone, social insurance number) as well as information about the type of work she was available for. There was a place on the form for date of birth but the applicant did not fill out this section. The applicant ticked-off “packaging” as the area of work she was either interested in or available for. She indicated on the form that she was capable of “heavy manual work”. She also indicated that she was not able to “lift over 60 lbs”. The applicant testified that she did not read the form. She placed her initials beside a checklist of items, including that she had received an orientation, without reading the list. Nancy Turner returned the form to Front Line.
13The applicant was sent an employee handbook by Front Line shortly after becoming an employee of Front Line. The handbook did not refer to human rights. The handbook did tell employees to contact Front Line if there were any issues with an employee’s assignment. The applicant did not read the handbook.
14The applicant did not meet with any representative of Front Line while she was working at Cardinal Fasteners.
15Gordon Turner testified that he used a personnel agency (first StaffPlus and then Front Line) to check out workers before deciding whether to hire them permanently. He testified that he never asked the personnel agency for employees based on their age. He also testified that Front Line had no input into the decision either to lay-off or hire workers permanently.
16The applicant testified that Gordon Turner would pass through the shop floor about two days a week. She testified that he would look around but never spoke to anyone. She testified that he never gave her a performance review.
17Gordon Turner testified that he helped to design many of the packaging machines used at Cardinal Fasteners. He testified that he walked through the plant floor four or five times a day. He testified that he always checked on how the operators were performing, including checking on accuracy and reliability. He testified that he had formed the opinion of the applicant that she was an average performer who did her job and what was asked of her.
18The applicant testified that a younger worker started working in the hand packaging area in June of 2007. This younger worker was also an employee of StaffPlus. The applicant stated that she had raised concerns about the younger employee with Cardinal Fasteners. Her concerns were that the younger worker was often late for work and was not properly filling out the time sheets. The applicant also testified that the younger worker was disrespectful and often swore at co-workers and supervisors. Nancy Turner and David Turner testified that the general rule was that if a worker arrived late, they stayed late to make up the missed hours. David Turner testified that he did not recall an incident of swearing and yelling recounted by the applicant in her testimony.
19The applicant testified that the younger employee worked mostly in the hand packaging area and was sometimes required to operate a machine if an extra operator was required. The applicant testified that the younger worker’s performance on the machine was no different than the performance of anyone else on the machine. She testified that the speed of the machine is set by the supervisor, who will set the rate of speed depending on the nature of the job. The applicant testified that she never saw any of the Turners watch the younger worker on the machines.
20Gordon Turner testified that by 2009, the younger worker was working regularly on machines. He testified that her speed was “second to none” and there was no problem with her accuracy. He commented on her ability to have the bags a foot apart on the conveyor belt.
21The applicant described her relationship with Nancy Turner as “close”. The applicant testified that they would chat in the lunch room on occasion. Nancy Turner did not provide any evidence on the applicant’s performance on the packaging machines.
22The applicant testified that David Turner spent most of his time in his office and she would see him walking through the production area about twice a day. The applicant testified that David Turner did not give her a performance review.
23David Turner testified that he spent about half of his day on the production floor. He testified that from his observations, the applicant was an average worker. He testified that the younger worker was “really fast”. He stated that she anticipated the machine well and was able to advise the supervisor when the parts in the machine’s bowls were getting to empty. He stated that not every operator was as responsible as the younger worker. He testified that the applicant was not as quick to anticipate the machine and would advise the supervisor only when the machine was almost empty or empty.
24A vertical bagger was ordered because of a new contract that required the packaging of painted parts; the old machines were not capable of handling those parts without chipping the paint. Gordon Turner worked with a manufacturer to develop the machine. The vertical bagger was installed in or around August of 2009. On this machine, the operator is in control of the speed of the machine and there are no bowls. The machine required manual work on the part of the operator. The speed and accuracy of the operator would determine the speed of the machine.
25The applicant did not work on the vertical bagger. The younger worker was put on the vertical bagger. The applicant testified that she only saw the younger worker on the machine. She testified that she was never asked to operate the machine. She testified that she was reasonably certain that the machine would be the same as all the other machines. She also testified that she never had an opportunity to look at the vertical bagger machine. In cross examination she agreed that she did not have an opinion on whether it was a more or less complex machine than the machine she had worked on.
26Gordon Turner testified that he chose the younger worker to work on the vertical bagger because he had observed her work on the hand packaging table. He testified that she was “very fast, accurate and bright”. In cross examination he was asked why he did not ask the applicant to work on the vertical bagger, and he said, “I would never let a lady lift a 60 pound box”.
27The applicant’s last day of employment was October 5, 2009. At the end of the day, the applicant was told by David Turner, along with three other agency employees, that they were being laid off and that they would be called back if Cardinal Fasteners got busy again. She said to him that she had worked for the company for seven and a half years and expressed surprise that she was being laid off. She testified that he told her it did not matter how long she had worked there. She testified that she also asked him if the younger worker had been laid off and he told her that she had been, as all agency employees had been laid off. The younger worker was not at the meeting.
28Nancy Turner testified that manufacturing in Ontario was “dicey” in 2009 and the business was required to operate frugally and was surviving “order to order”.
29The applicant called Front Line on or about October 5, 2009 to advise that she had been laid off and to request the preparation of a Record of Employment. The reason provided on the Record of Employment was “shortage of work/end of contract or season”.
30The applicant testified that she learned from another employee that the younger worker had been hired permanently by Cardinal Fasteners a week later to operate the vertical bagger. Gordon Turner testified that it was his decision to hire the younger worker to operate the machine. He testified that the job required the lifting of heavy boxes and the applicant was not capable of that. In addition, he testified that she did not have the speed that the younger worker had. He testified that he did not consider age when coming to the decision to hire the younger worker as a permanent employee.
31During this period, responsibility for human resources functions was being transferred from Nancy Turner to Kimberly Briscoe. Ms. Briscoe testified that she did not recall calling Front Line about the hiring of the younger worker. She testified that Gordon Turner might have told her to call Front Line but that this might have “fallen through the cracks”.
32The applicant testified that after learning that the younger worker had been hired, she called Front Line. She spoke to a woman there but did not take the name. The applicant testified that she usually wrote down the name of the person she was talking to on the phone. She testified that she asked the woman if she thought it was fair that she worked for seven and a half years and the younger worker worked for only two years and was hired. She testified that the woman said that Cardinal Fasteners knew it was wrong but it was its decision and Front Line had no control over the situation.
33Juliet Stewart-Craig is a former employee of Front Line and was working for it in 2009. She was a salesperson for Front Line but would help out with the phones if she was in the office. She testified that she always answered the phone by stating her first name. She testified that she had no recollection of a telephone call from the applicant. She testified that it was her usual practice to take a message when answering the phone and pass it on to Helen Nemeth, the office manager.
34Tiffany Leether was the junior recruiter and office coordinator for Front Line in 2009. She testified that it was standard practice at Front Line to answer the phone with your first name. She also testified that she dealt extensively with Cardinal Fasteners, and employees were never requested by age.
35Helen Nemeth is the vice-president of operations for Front Line and a part owner. She testified that she had no recollection of an age discrimination complaint from the applicant. She testified that a note of every phone call is made and entered into a data base. There is no record of a complaint from the applicant. She also testified that she was not aware of any other calls, other than the first call, from the applicant.
36Doug Wedgerfield is the Executive Vice-President of Front Line and a part owner of the company. He testified that he was in the office when the applicant called to say that she had been laid off. He said that it was Ms. Stewart-Craig who answered the phone. He testified that there was no mention of age discrimination by Ms. Stewart-Craig after the call. He testified that Front Line was not made aware that the younger worker was hired permanently until it received the Application. He also testified that Front Line was not involved in the decision to lay-off any of its workers or the decision to hire the younger worker. He also testified that he had looked for any notes or records of a complaint from the applicant about age discrimination and did not find any. He testified that if Front Line receives a complaint from an employee, its normal practice is to follow up with the client.
37The applicant testified that she had someone drive her to the Front Line office to pick up her Record of Employment. She went in to the office to pick up the form but did not speak to anyone. She testified that she did not have time because the person who was driving her had to return to work.
38The applicant testified that her reaction to the hiring of the younger worker was that she felt it was unfair to her after having worked there for seven and a half years, whereas the younger worker had only worked there for two years. In cross-examination, she testified that what offended her was the fact that she had worked longer at Cardinal Fasteners than the younger worker.
39In cross examination, the applicant agreed that speed and accuracy was important in operating the machines.
40The applicant did not refer to the phone conversation with Front Line in her Application or Reply. She first raised the allegation that she had complained about discrimination to Front Line at the summary hearing of the reasonable prospect of success of the Application.
SUBMISSIONS OF THE APPLICANT
41The applicant submitted that this was a case of circumstantial evidence and that the task of the Tribunal was to determine whether it was more likely than not that age was a factor in the decision not to hire her.
42The applicant noted that Gordon Turner admitted that he considered she could not lift a 60 pound box and that he would “never let a lady lift [a sixty pound box]”. The applicant submitted that these statements or assumptions were based on her status as an older woman.
43The applicant referred me to Clennon v. Toronto East General Hospital, 2009 HRTO 1242 for the test set out in determining discrimination on the basis of age in hiring cases.
44The applicant submitted that the first step in the analysis was to determine whether she was qualified to operate the machine. The applicant stated that the machine was a new machine and the younger employee was trained on how to operate the machine once she was selected. The applicant submitted that the ability to operate the machine was therefore an irrelevant factor.
45The applicant submitted that most of the evidence rested on the speed and accuracy of the applicant and the younger woman. The applicant had operated similar machines for seven and a half years and had never received negative comments on her performance. The applicant stated that she always finished her work on time. She also submitted that there was no evidence of how Gordon Turner came to a conclusion on her accuracy or speed on the new machine. The applicant stated that the most important piece of evidence was that it was the machine that set the speed, not the operator. This demonstrates, the applicant stated, that she was just as fast as the other operator.
46The applicant submitted that in terms of accuracy, she had not been spoken to about accuracy on the machines she worked on. She also testified that she was accurate and this testimony was not contradicted.
47The applicant noted that the reason given by Cardinal Fasteners for not hiring her for the position was that she could not lift the necessary weight. The applicant submitted that this was an assumption about her abilities, based on the stereotype that older women are weak and not capable of manual labour. In addition, she was never given an opportunity to operate the vertical bagger, so the assessment of Gordon Turner was based on assumptions. She submitted that there was no rational or credible explanation of how he came to his conclusions on her speed and accuracy.
48The applicant submitted that she was not hired for the position but that her employment was terminated. She submitted that someone much younger and no less qualified was hired for the position. The applicant stated that the evidence showed that the younger employee operated packaging machines only when covering for breaks and when other workers were on leave. The applicant submitted that it was reasonable to find that the younger worker was no better qualified to operate the vertical bagger than the applicant, as she was less experienced as a machine operator and there was no objective or credible evidence that the younger employee was faster or more accurate. The applicant submitted that the only difference between the two of them was their age.
49The applicant submitted that under the Code, it is the duty of staffing agencies not to condone acts of discrimination: Couchie v. Ontario (Municipal Affairs and Housing), 2011 HRTO 689. The applicant submitted that the duty consists of investigating an alleged act of discrimination and coming to a conclusion based on that investigation. The applicant further submitted that the duty arises when there is either a direct complaint of discrimination by the employee or where the agency should have known of possible discrimination.
50The applicant submitted that Front Line was her employer and knew about the alleged discrimination when it received the second phone call from the applicant. In addition, the applicant submitted, Front Line should have been aware of the hiring practices of Cardinal Fasteners from the information they had about the temporary employees at Cardinal Fasteners and who was being hired permanently.
51The applicant submitted that it is likely that someone at Front Line did take that second call and did not realize its significance. The applicant noted that Front Line did not have a written complaint procedure.
52The applicant stated that Cardinal Fasteners was required to advise Front Line of any permanent hiring. The applicant submitted that Front Line knew about the hiring of the younger worker because Cardinal Fasteners informed them. The applicant submitted that Front Line would also have been aware from the lack of a time sheet for the younger worker that she had been hired permanently. The applicant also submitted that most employees of Front Line would have filled out the date of birth section.
53The applicant submitted that by being indifferent to her concerns and not following up, Front Line had violated its duty not to condone discrimination.
SUBMISSIONS OF THE RESPONDENTS
54Cardinal Fasteners submitted that there was uncontradicted evidence that age was never mentioned or used for any hiring decisions. Cardinal Fasteners submitted that it was not told the age of any workers. It submitted that the hiring of the younger worker was based on sound business purposes.
55Cardinal Fasteners submitted that speed is important in operating the machines. It also submitted that the vertical bagger was not a machine like the others. It stated that the testimony of Gordon Turner was that the younger worker was fast and accurate and that these skills were important for this machine.
56Cardinal Fasteners noted that the applicant had focused on Gordon Turner’s comments on not having a lady lift heavy boxes. It stated that this was an allegation of sexism, not age discrimination. It also stated that the applicant had stated in her Front Line information form that she could not lift 60 pounds or more. It submitted that the younger worker was not hired on the basis of the ability to lift weights; she was hired because of her hand-eye coordination and her ability to stay ahead of the machine.
57Cardinal Fasteners submitted that the only evidence before the Tribunal on the speed and accuracy of the applicant came from the applicant herself – she did not call any other witnesses to testify on her speed and accuracy and her contention that she was as qualified as the younger worker. It submitted that the Tribunal should draw an adverse inference from this failure to call additional witnesses.
58Cardinal Fasteners submitted that the real basis for the applicant’s complaint was not discrimination based on age, but discrimination based on seniority (which is not a protected ground of discrimination under the Code). It referred to sections of the Application and Reply that referred to the applicant as “senior and more experienced”.
59Cardinal Fasteners submitted that on a balance of probabilities, the applicant has not established that the permanent hiring of the younger worker was discriminatory. It also submitted that a credible and rational explanation for the decision to hire the younger worker was provided by Gordon Turner.
60Front Line submitted that the Application as against it hinges on whether a second phone call was made to Front Line by the applicant to raise concerns about age discrimination. It stated that all of the Front Line employees testified that such a call was never received. Front Line submitted that in assessing credibility, the Tribunal must determine which version makes the most sense. In this case, Front Line suggested that it is more likely than not that the call never occurred.
61Front Line also noted that the applicant did not refer to the phone call in her Application, which was filed shortly after she stopped working at Cardinal Fasteners. The allegation related to the phone call only arose at the summary hearing in 2012. Front Line submitted that the delay in raising the allegation is a factor in determining credibility: Morris v. Ontario (Finance), 2011 HRTO 1889 at para. 41.
62Front Line also submitted that the applicant testified she would normally write down the name of the person she was talking to on the phone and did not do so. In addition, she did not follow up in writing with Front Line and did not raise it when she went to the office in person.
63Front Line submitted that there is no evidence that it had any reason to suspect age discrimination. In addition, Front Line had no advance knowledge of the lay-off or hiring decisions of Cardinal Fasteners.
64Front Line submitted that the applicant testified that she did not read the handbook provided by Front Line, so including a human rights policy in the handbook would not have assisted her.
65Front Line referred to Bennett v. Protrans Personnel Services, 2009 HRTO 1737 where no liability of a temporary agency was found.
66Front Line submitted that the clear signs of discrimination that were present in Couchie were not present in this case. Front Line submitted that it never recruited, interviewed or placed the applicant – it acted solely as a payroll provider for the applicant. Front Line stated that it did not know the applicant’s age until the start of these proceedings and without knowing that the younger worker was hired permanently, it had no knowledge of the complaint of discrimination until the filing of the Application.
REPLY SUBMISSIONS OF THE APPLICANT
67The applicant submitted that she was not represented when she filed her Application and she cannot be faulted for not appreciating the concept of third party liability. The applicant submitted that the lack of contact with the applicant by Front Line at the beginning of the relationship does not change the fact that it did not fulfill its duties under the Code.
68In response to Cardinal Fastener’s suggestion that the Tribunal should draw an adverse inference from the failure to call other witnesses, the applicant suggested that a similar adverse inference could be drawn from the failure of Cardinal Fasteners to call her supervisor as a witness.
DECISION
69The applicant has made some reference in her submissions to discrimination based on sex. The applicant did not allege discrimination on the basis of sex in her Application and I have not considered this ground of discrimination.
70There are two aspects to the applicant’s claim of discrimination: the decision of Cardinal Fasteners not to hire her for the vertical bagger position and the failure of Front Line to investigate her allegation of discrimination. I will address each aspect separately.
The Hiring Decision of Cardinal Fasteners
71There is no direct evidence that age was relied upon by the respondent as one of the reasons for the vertical bagger hiring decision, which is not at all uncommon in discrimination cases. As a result, as in so many of these cases, the determination as to whether age was a factor in the hiring decision falls to be decided on the basis of circumstantial evidence.
72In cases involving circumstantial evidence, the task of an adjudicator is to determine whether there is sufficient evidence to establish that discrimination on the ground alleged is more probable than the explanations provided by the respondent, keeping in mind that the onus of proving discrimination always rests with the applicant and that discrimination need only be one factor in the respondent’s decision (Blakely v. Queen’s University, 2012 HRTO 1177 at para 48)
73In Clennon v. Toronto East General Hospital, 2009 HRTO 1242, at paras 75-78, a hiring case similar to here, the Tribunal relied on Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 CHRR D/1001 at para 8919 (commonly referred to as the “Shakes test”) in determining whether the applicant had met her initial evidentiary burden of establishing a prima facie case of discrimination. This test involves establishing three elements:
a. that the applicant was qualified for the particular employment;
b. that the applicant was not hired; and
c. that a considerably younger employee who was no better qualified than the applicant subsequently obtained the position.
74In Zhao v. Toronto Community Housing Corporation, 2012 HRTO 2187, the Tribunal noted (at para 9) that the Shakes test “is not a rigid approach that defines a prima facie case in every hiring case”. As noted in Clennon at para. 70, the ultimate issue is “whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent”. To the same effect, the Tribunal in Couchie stated (at para 55): “the legal issue before the Tribunal is whether an inference of discrimination is more probable than not based on all the evidence before it”.
75I note that in this case, unlike some hiring cases, both the applicant and the younger employee were also pre-existing agency workers and the respondent has explicitly relied on an assessment of their respective on–the-job performances with respect to who was better qualified for the vertical bagger position.
76The applicant was laid off from her position as a machine operator along with three other Front Line employees. There is no dispute that there was a shortage of work. It is not disputed that the applicant was not hired permanently by Cardinal Fasteners, nor that the person hired was considerably younger than the applicant. What is in dispute is whether the applicant was qualified for the vertical bagger position and, related to that, whether the younger person hired was "no better qualified" than the applicant.
77There was extensive testimony on the skills required to operate the vertical bagger. I accept that the job required manual dexterity, speed and accuracy. The evidence was also that the younger worker was selected to work on the vertical bagger prior to being hired permanently. The applicant did not work on that machine and testified that she did not examine the machine.
78Gordon Turner was the person who decided to hire the younger worker permanently. He testified that he based his decision on his observations of the younger worker. In particular, he testified that she was more qualified than the applicant based on speed and accuracy in the work, as well as her ability to anticipate the machine.
79David Turner also testified about the capabilities of the applicant and the younger worker. Although he was not involved in the decision to hire the younger worker, his observations support those of Gordon Turner.
80As the Tribunal has noted on many occasions, it does not have jurisdiction to rule on general allegations of unfairness. I understand the frustrations of the applicant that she was not chosen for the vertical bagger job, even though she had many more years of service at Cardinal Fasteners than the woman who was chosen. However, even if I were to accept that the applicant was qualified for the vertical bagger position and even if I were to accept that the younger employee was not better qualified (although in the circumstances there is evidence to support that she was, in fact, better qualified based on her observed performance on the employer’s machinery), Cardinal Fasteners has provided a non-discriminatory explanation for its hiring decision that is credible and based on the observations of those with ultimate responsibility for the operation of the machine. I find that Cardinal Fasteners believed the younger employee was better qualified - based on a reasonable and objective evaluation of pre-existing performance - for the position and based their hiring decision on that alone.
81I find that, on a balance of probabilities, the applicant has not demonstrated that an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.
The Role of Front Line In Investigating
82There is a duty under the Code not to condone an act of discrimination that has already occurred: Payne v. Otsuka Pharmaceutical Co. Ltd., 2002 CanLII 46516 (ON HRT). As noted in Couchie (at para 75) this duty applies to those drawn into the discrimination, whether through contractual relations or otherwise. In Couchie, it was also noted that the more power or authority a party has, the greater the onus to stop the discrimination. In Couchie, the Tribunal concluded that the duty of a contractor not to condone discrimination, requires that a contractor investigate the alleged discrimination and arrive at a reasonable conclusion.
83Front Line was the employer of the applicant and therefore had legal control over the applicant. Its involvement with the applicant was minimal, however. It did not select the applicant for its pool of workers. It agreed with the request of Cardinal Fasteners to take on the applicant (and other workers) when Cardinal Fasteners changed its staffing agency to Front Line. Front Line had no involvement in the decision to lay off the applicant. It appears from the evidence that Front Line was advised of the lay off by the applicant herself. This is different from the situation in Couchie, where the consulting company terminated the contract at the request of the Ministry.
84In light of the fact that Front Line had no involvement in either the lay-off of the applicant or in the selection of another employee for the vertical bagger position, the duty to investigate a potentially discriminatory act could only be triggered if Front Line was aware of allegations of discrimination.
85Front Line had no knowledge of the age of the applicant. She had not filled in this part of the information form provided to her by Front Line and she had not met with any Front Line representatives prior to the end of her employment at Cardinal Fasteners. Even if Front Line had known her age, that would not be sufficient to ground any duty to investigate. The contract employee is required to clearly identify to her employer the nature of the concern. The applicant testified that she told someone at Front Line that she had been laid off and replaced by a younger worker. Witnesses for Front Line deny that they were made aware of her concerns.
86In coming to any conclusions on the evidence, I must determine whether the evidence of the applicant is credible. In assessing the credibility of the applicant's testimony, I am guided by the test set out in Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354: whether the alleged facts are in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.”
87The applicant states that she mentioned her concern in the second phone conversation she had with Front Line. Witnesses for Front Line testified that there was no record of a second phone call. She testified that she usually obtains and writes down the name of the person she speaks to on the phone, but did not do so in this instance. The applicant did not refer to any such phone conversation in her Application. The allegation arose in the context of the summary hearing on the reasonable prospect of success.
88In her testimony, the applicant stated that in the second phone call, the woman who answered the phone said that Cardinal Fasteners knew it was wrong to hire the younger worker. However, the testimony of Front Line witnesses and of Kimberly Briscoe was that Cardinal Fasteners did not advise Front Line that it had hired the younger worker. In light of the fact that Front Line did not speak to Cardinal Fasteners about the permanent hiring, it is unlikely that the Front Line employee said that Cardinal knew it was wrong.
89In addition, when the applicant went to the Front Line office to pick up her Record of Employment, she did not mention her concern to anyone present at the office. Although she was clearly pressed for time, it would not have taken long to have asked for an update on her concerns, if she had already raised them.
90I find that, on a balance of probabilities, Front Line was not aware of the concerns of the applicant about the hiring decision of Cardinal Fasteners.
91Even if Front Line had been made aware of the applicant’s concerns, as articulated in her testimony, it would not be sufficient to ground liability. By the applicant’s own account, she simply said that it was not fair that she had not been hired with her over seven years of experience compared to the two years’ of service of the younger worker. Her concern appeared to be more about seniority or years of service. Hiring a younger worker is not, in itself, a discriminatory act. According to the applicant’s testimony, she did not state to Front Line that she was as qualified (or more qualified) than the younger worker. As a result, even if Front Line had been aware of the age difference between its two employees, it did not have any obligation to investigate without there being any allegations raised about their relative qualifications to do the job.
92The fact that Front Line did not have any information in its handbook about raising human rights complaints is not material to the Application, in the circumstances of this case. The applicant testified that she did not read the handbook.
93Accordingly, the Application as against Front Line is dismissed.
ORDER
94The Application as against Cardinal Fasteners is dismissed.
95The Application as against Front Line is dismissed.
Dated at Toronto, this 26th day of March, 2013.
“Signed by”
Ian R. Mackenzie
Member