Ellis v. Petro-Canada Inc., 2014 HRTO 163

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Ellis and the applicants listed on Schedule A

Applicants

-and-

Petro-Canada Inc.

Respondent

DECISION

Adjudicator: Kaye Joachim Date: February 4, 2014 Citation: 2014 HRTO 163 Indexed as: Ellis v. Petro-Canada Inc.

APPEARANCES

Robert Waddell, Applicant Self-represented

The applicants listed on Schedule A, Applicants Robert Waddell, Representative

Petro-Canada Inc., Respondent Susan Adam Metzler, Counsel

Introduction

1These transitional Applications were filed under section 53(3) and 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicants are former employees of Petro-Canada who worked at the Oakville Refinery. In September 2003, Petro Canada announced that it would be shutting down the Oakville Refinery and converting it to a multi-faceted terminal. The plant closed in late May 2005.

3Some of the laid off employees applied for and were hired at the Oakville terminal or elsewhere in Petro-Canada. None of the applicants who applied were hired. They allege that their age and/or disability was a factor in the decision not to hire them elsewhere in Petro-Canada. Some applicants additionally alleged sex and family status discrimination.

4The first applicant to file a complaint with the Ontario Human Rights Commission in February 2005 was the applicant Robert Waddell. In June 2008, the other applicants also filed complaints.

5By Interim Decision 2009 HRTO 1430, I determined these Applications would be consolidated and heard together. I have issued several Case Assessment Directions and three Interim Decisions dealing with various case management issues: 2009 HRTO 2028; 2010 HRTO 29; and 2010 HRTO 536. In 2010 HRTO 1882, I granted the Ontario Human Rights Commission’s (the “Commission”) Request to intervene in these proceedings, which they did in the preliminary stages. They did not participate in the latest round of hearings.

6I directed that I would hear the evidence of the lead applicant, Robert Waddell, together with the evidence of the Commission investigator, and the respondent’s evidence regarding the plant closure and the on-line application process, and issue an interim decision.

7In that interim decision, Ellis v. Petro-Canada, 2010 HRTO 2499 I concluded that based on the evidence heard in stage one of the proceedings, the applicant Waddell had not established that the respondent discriminated against him on the basis of disability. A second stage of hearings was held to hear the evidence of the circumstances surrounding the remaining 17 applicants. It remained open to me to find that the evidence regarding the applicants together demonstrates discrimination contrary to the Code. I have concluded that, after considering the entirety of the circumstantial evidence of all the applicants, none of the applicants has established discrimination in employment on the basis of age, disability, gender or family status.

Circumstances surrounding the shutdown and the filing of the complaints

8In September 2003, Petro Canada announced that it would be shutting down the Oakville Refinery and converting it to a multi-faceted terminal. The plant closed in late May 2005 with a total of 141 employees scheduled for lay-off.

9The respondent set up a site on the refinery premises for employees to search for job postings within Petro-Canada throughout the country and apply on-line for suitable postings.

10Some of the laid off employees applied for postings prior to closing. 60 were hired at the Oakville terminal or elsewhere in Petro-Canada. None of the applicants who applied were hired.

11The first applicant to file a complaint with the Ontario Human Rights Commission in 2005 was Robert Waddell. He alleged that he feared that he would not be rehired because of his disability. The Commission investigated the complaint both before and after the plant closing, obtaining data about the number of employees laid off, the number rehired, the age and alleged disability status of the applicants. Based on the statistics, the Commission believed there was an inference of discrimination. It also uncovered a ranked list of employees, indicating whether they were suitable for rehiring.

12Mr. Waddell then contacted former employees and advised them that they had been discriminated against on the basis of age or disability, based on the Commission’s investigation and the discovery of the ranking list.

13The remaining 17 applicants filed complaints with the Ontario Human Rights Commission in 2008. The sole basis of their belief of discrimination was the ranked list and the statistical information.

14In an earlier decision I reviewed the statistical evidence and concluded that the disability and age data was not reliable or, statistically significant and did not give rise to any inference of discrimination which required a response from the respondent.

15This severely undermined the cases of the 17 applicants who had filed their complaints based on their belief that the statistics demonstrated a bias against older workers and works with disabilities.

Job Performance Appraisals and attendance management programs

16The respondent applied an attendance management program to monitor and counsel employees with high absenteeism. The applicants argued that being on the attendance management program was a cipher for having a disability. However, for reasons explained in my earlier decision, I do not agree.

17In 2002 the respondent reinstated performance reviews of unionized employees. Using the same appraisals used for salaried employees, workers were identified as top performers, fully successful or needs improvement.

18The applicants assert that their absences some of which were related to disabilities, were considered during performance appraisals.

19In my previous decision I concluded that attendance was not consciously used as factor in performance reviews.

The Ranking List

20The company anticipated that up to 75 positions for operators would become available across Petro-Canada, and that the laid off refinery workers at the Oakville Refinery would apply for them. The company prepared a list of all workers and rated them as “should retain”, “strong consideration to retain”, “possibly retain”, and “not recommended.” The list also included the results of the latest performance assessment. The ranking list was to be used if an internal manager called for a short list of employees to interview in situations where there were a large number of job applications.

21Some employees who were not recommended for retention were in fact hired and some persons recommended for retention were not successful. However, a large number of the workers who were successful in the 60 positions that were actually available after the plant closed were rated as “should retain” or “strong consideration to retain.” This indicates to me that the ranking list had an influence in who who was hired.

22In addition, a management witness testified that he was called with respect to operator positions in the Edmonton competition. Because there were 50 applicants, he was asked for the top 10 candidates and he responded by making reference to the ranking list.

23I concluded in my previous decision that age, disability, gender and family status played no role in the ranking. In particular, whether or not an employee required modified work or was on the AMP was not a conscious factor in the ranking. However, I am mindful that these factors may have unconsciously played a role in assessing a worker’s productivity or attractiveness for retention.

Confidentiality of Health Care Centre medical records and Employee Assistance Program

24Another facet of the applicants’ case was the assertion that employee health records and use of the employee assistance program were well-known to management. The evidence does not support that assertion.

25The Health Centre was responsible for obtaining medical information required following an absence from work and to craft modified duties and accommodations. A physician with the Health Centre who was called by the applicant Waddell testified that health care records were kept confidential and only the essential information need to provide accommodation was given to management. For example, the medical condition would not necessarily be identified, but rather a list of physical restrictions would be provided.

26Some of the applicants identified situations which they believed demonstrated a breach of confidentiality concerning their medical records. Generally their beliefs were not substantiated. There was one 2003 memo which was allegedly found by a worker on a public computer drive which described a meeting concerning applicant Rainey’s medical issues. This appears to have been an isolated instance and does not change my general finding that the Health Centre Records were kept confidential and not released to management except on a need to know basis for the purpose of providing accommodation.

27The applicants also alleged that their use of the employee assistance program (sometimes for health-related issues or stresses) was well-known to management, and that management assumed that these employees had physical or mental health issues and/or lacked soft skills. These allegations are entirely speculative. Management witnesses denied knowledge of which employees used the EAP and the applicants did not present any convincing evidence to the contrary.

Overtime policy

28Management had a general policy against assigning overtime shifts to workers on work restrictions. This policy was a management, not a Health Centre, decision. The respondent asserted that there was insufficient time to ensure that the overtime duties fell within a worker’s modified restrictions as well as concern that overtime work could impede a worker’s gradual return to regular duties.

29This is not the case to opine on a general policy regarding overtime for workers on modified duties. There is no indication that this was an inflexible policy or that employees were systematically financially disadvantaged over time by this policy. This policy does not indicate a practice or tendency to discriminate against workers with disabilities.

30The applicant Waddell was in fact permitted to work overtime while on permanent work restrictions. On one occasion in 2004, management questioned whether the applicant’s overtime was affecting his health, after he missed several days due to his medical condition and then worked overtime immediately after. The applicants point to this concern as a form of disability discrimination. In my view, it is quite reasonable for management to inquire whether a worker returning from sick leave is risking a relapse by engaging prematurely in overtime.

The test for Prima Facie Discrimination in hiring cases

31In order to establish a prima facie case of discrimination in a hiring situation, the applicant must establish that he/she was qualified for the position that he/she applied for and that a candidate no more qualified than himself/herself was hired who did not share the characteristic of the applicant (not disabled or a different age). The evidentiary onus then shifts to the respondent to establish a non-discriminatory reason for hiring the other candidate.

32Generally, an applicant obtains disclosure of the résumés of the successful candidates and attempts to establish that he/she is relatively equally qualified. Due to the lack of legal knowledge by the applicants they did not seek such disclosure, although the respondent attempted to provide the information in most cases. Due to the passage of time, a complete set of records was not available. In some cases the applicants did not present the full job postings of the positions they applied for nor did they submit the résumé used in that posting. In other cases the respondents were not able to provide the résumés of the successful candidates.

33As the plant shut down occurred in 2005 and all applicants except applicant Waddell did not file complaints until 2008, I draw no adverse inference for either party on the failure to present detailed comparative evidence regarding the qualifications of successful versus non-successful candidates.

34In many cases I decided to assume, without deciding, that the applicants may have been generally qualified, at least with respect to those postings that required a similar skill set to the ones they had been performing at the time of the plant closure. I was also mindful of the fact that for every posting for which the applicants were minimally qualified, there were an abundance of equally minimally qualified candidates, stemming from the mass layoff.

The applicant Robert Waddell

35I will review the findings I previously made regarding the lead applicant. Applicant Waddell was hired as an operator in the Oakville Refinery in 1979. He was diagnosed with bronchiectasis in July 2002. This resulted in frequent respiratory tract infections. He was accommodated by being assigned to an inside position and excused from fire crew duties. His employment was terminated on May 20, 2005, as part of the plant closing. There is no dispute that the applicant was a person with a disability who was on the respondent attendance management program at the time of the plant closing.

36Mr. Waddell applied for five positions using the on-line application system and was unsuccessful. He asserts that discriminatory factors must have been at play.

37The applicant applied for four office positions: SOP Specialist, Fleet Co-ordinator, Distribution Operations Co-ordinator, and Supervisor Customer Service Package Goods.

38The applicant had no office work experience, and had worked his entire working career as an operator in the Oakville Refinery. Accordingly, there is no basis to believe that he was as qualified as the successful candidate for these positions. Therefore, I find that Mr. Waddell has not established that a prima facie case of discrimination with respect to these positions.

39Mr. Waddell also applied for one of twelve posted Terminal Technician positions in February 2005. As an operator he had the basic qualifications for this position and he was interviewed and completed a mechanical aptitude test.

40Approximately 60 candidates applied. The respondent no longer has the résumés of the successful candidates.

41One of the successful candidates was Mike Watts, also a former refinery operator. Mr. Waddell testified that Mr. Watts was several levels below him on the LORO Progression Plan and did not hold a compressor ticket and was therefore not as qualified as himself. Another successful candidate, Phillip Bullock, had less seniority than Mr. Waddell and was, in his view, less qualified.

42A stated requirement for the position was fire crew or marine response and outside work. The applicant was medically restricted from working on the fire crew or from working outside in extreme temperature.

43The evidence was not sufficient for me to conclude that the position could not have been modified to accommodate these restrictions. Therefore, I will assume that Mr. Waddell was qualified for one of the twelve positions.

44I heard no evidence about the competition process, and given the passage of time, I draw no adverse conclusion from this. However, it leaves me with the task of assessing all the circumstantial evidence to determine whether Mr. Waddell’s disability may have played a role in the decision not to hire him for the position of Terminal Technician.

45Mr. Waddell was ranked as a lower performing employee in 2004 and 2005 performance assessments and was rated as not recommended for retention in 2005. The correlation between those who were hired and their rating on the ranking list leads me to conclude that the ranking list played a role in the hiring decisions.

46However, that does not necessarily indicate discrimination. Rather it indicates that the respondent preferred to hire employees with good performance ratings over those with poor performance appraisals.

47As stated above, disability, age, family status, marital status, and placement on the attendance management program were not factors consciously used in the ranking system or in the hiring decisions.

48I previously held that it is possible that Mr. Waddell’s poor attendance might have subconsciously played a role in his performance assessment, and thus indirectly contributed to his placement on the ranking list as “unretainable.” This is one factor I will consider, in combination with all the other circumstantial evidence in my final conclusion about whether disability played a role in applicant Waddell’s failure to obtain a post shut down position.

49In summary, I am satisfied the evidence supports finding Mr. Waddell was qualified for one of twelve positions of Terminal Technician but was not successful in obtaining the position. Due to the passage of time it is not possible or me to compare the relative qualifications of the applicant Waddell with the successful candidates.

50The onus remains on the applicant to establish that disability was a factor in the respondent’s decision not to select him.

51The circumstantial evidence discussed in my previous decision did not establish that disability was directly or indirectly a factor in Mr. Waddell’s failure to obtain a position in the Terminal Technician competition.

52Does the evidence relating to the other applicants reveal a pattern or circumstantial evidence of discrimination sufficient to change that preliminary conclusion?

Failure to apply for a position

53The respondent set up an on-line application system for all openings. Employees were offered training and assistance if required.

54There are seven applicants who did not successfully complete an internal on-line application for a job: Brown, Dimock, Ellis, Kasmara, Michaluk, Paterson and Reeves.

55They asserted that they expressed their interest to their supervisors directly and/or handed in paper résumés. However, the evidence established that the only bona fide way to apply for the openings was to submit an on-line application. Therefore, it is difficult to conclude that anyone who did not apply for a position on-line was discriminated against in not obtaining a position.

56In Ruffolo v. York University, 2009 HRTO 186, the application was dismissed on the basis that Mr. Ruffolo had never made an application. Similarly, I dismiss the applications of Brown, Dimock, Ellis, Kasmara, Michaluk, Paterson and Reeves on the basis that they did not apply for any openings.

57Nonetheless, I will consider their other evidence to see if it adds to the circumstantial case for discrimination.

Brown

58Mr. Brown acknowledged that he had not used the on-line application system. He argued that he should have been considered for a job in Montreal because he had indicated in a pre-closure questionnaire that he could speak French.

59The pre-closure questionnaire was not considered an application and this argument has no merit.

60Other applicants born the same year as Mr. Brown were successful in obtaining positions. There is no circumstantial evidence of age discrimination regarding Mr. Brown.

61Furthermore, Mr. Brown has not established that he has a disability covered by the Code. He had high blood pressure since 1983, an irregular heartbeat, he hurt his back once and he had a hernia. While some or all of these conditions may amount to a disability if they had caused him disabling symptoms or were perceived to have done so, his evidence was that whenever he needed temporary modified work he was accommodated in that regard.

62The evidence does not establish any indication of unwillingness to accommodate medical conditions.

Dimock

63Mr. Dimock agreed that he had not successfully submitted any on-line applications. At the hearing, for the first time, he alleged that he had tried but was unsuccessful. Regardless, the applicant was fully aware of the need to use the on-line system and did not indicate that he sought any assistance in this matter.

64This applicant complained that he was not given one of three temporary positions which were necessary to complete the closure of the plant. However, these positions were filled strictly by seniority on the agreement of the Union and management and this is not indicative of any form of discrimination.

65Six individuals who were the same age or older than applicant Dimock were successful in obtaining positions. There was no circumstantial evidence of bias against older workers.

66Mr. Dimock had a hip limitation which required modified duties from September 2003. He confirmed that he was fully accommodated until the time of closure, apart from his parking privileges. Once the respondent doctor cleared his ability to walk safely, his accommodation of parking within the refinery was removed. This does not amount to a failure to accommodate.

Ellis

67Mr. Ellis was not able to establish that he had made a successful on-line application for any position. He testified that he had submitted one prior to May 2005 and received confirmation of a successful transmission but he did not have a copy of the transmission report. He did not pursue the matter.

68The evidence does not establish on a balance of probabilities that the applicant made an on-line application, and on this basis this application is dismissed.

69Eleven individuals who were the same age or older than applicant Ellis were successful in obtaining positions. There was no circumstantial evidence of bias against older workers.

70Mr. Ellis experienced a work-related injury to his shoulder in December 2002 and was provided modified work as required until the date of closure.

71The circumstances of Mr. Ellis’ employment did not indicate any reluctance to hire or accommodate workers with physical restrictions.

Kasmara

72Mr. Kasmara testified that he did not submit any on-line applications because he didn’t know how and he thought he would be offered a position as had happened during a 1993 closure.

73This applicant has not established that he applied for any positions and therefore cannot establish discrimination in employment.

74Mr. Kasmara was generally older that most successful applicants and he did not believe he would be successful because of his age. Despite this belief, there was no evidence before me that his age would have been a factor had he applied. There was no evidence that he was discouraged from applying because of his age.

75With respect to the ground of disability, Mr. Kasmara stated that he was generally subject to dizziness and bronchitis that did not impact on his ability to work. He had not required or requested modified duties for years prior to the closure. He was on a “concern” level of the attendance management program in 2004 but the evidence does not establish any link to a disability.

76The circumstances surrounding Mr. Kasmara’s employment do not indicate any disability or age discrimination.

Michaluk

77Mr. Michaluk testified that he did not look up any job postings, use the on-line system nor apply for any jobs. He retired and accepted a retirement gift.

78Mr. Michaluk’s verbal comments to members of the respondent management team do not amount to applications.

79Six individuals who were the same age or older than applicant Michaluk were successful in obtaining positions. There was no circumstantial evidence of a preference for younger workers.

80Mr. Michaluk testified that he had hip problems and problems with alcohol, which could be considered a disability. However, there was no evidence that those conditions ever interfered with his work or that he was refused accommodation.

81On the contrary, Mr. Michaluk was placed on a permanent modified work program from 2002 until closing.

82The applicants made much of the fact that Mr. Michaluk’s alcohol problems were known to management, but Mr. Michaluk acknowledged that it was important for his supervisor to be aware because of safety concerns related to a refinery.

83There is nothing inappropriate in management being made aware of necessary information in order to properly accommodate an employee and ensure safety in the refinery.

Paterson

84Mr. Paterson initially did not claim to have made any on-line applications. It was not until filing his Statement of additional facts that he claimed he had not kept copies of the applications he made on-line. The respondent has no record of any on-line applications made by this applicant, although they had accurate records concerning all the other applicants. He conceded he could not remember what jobs he had applied for on-line. At another point in his evidence he stated that he was not aware of the on-line system or did not know how to use it. The inconsistency of his evidence leads me to conclude that this applicant did not make any on-line applications.

85Seven individuals who were the same age or older than applicant Paterson were successful in obtaining positions. There was no circumstantial evidence of bias against older workers.

86With respect to disability, Mr. Paterson stated that he had experienced temporary disabilities such as fibromyalgia, diverticulitis, IBS and gastro reflux. He alleged that he had sought accommodations over five to six years, but received no response. There is no documentation to support these claims, nor were union officials notified or grievances filed. I find the claim of general failure to accommodate is not substantiated. There was ample evidence of a robust system for arranging worker accommodations at the respondent refinery. As a union steward, it is unlikely that Mr. Paterson was unaware of his rights. I reject this applicant’s assertion that he was not properly accommodated.

Reeves

87Mr. Reeves did not submit any on-line applications for any postings. He testified that he inquired verbally to a member of management, but that is not sufficient to establish an application. He also alleged that he was unaware of the obligation to file an on-line application and in any event he was not computer literate. Neither of these circumstances assist him. The evidence was clear that the employees were notified of the process for finding jobs with the respondent organization and offered the opportunity on-site to apply. In addition, assistance was available to help with the on-line system. He failed to establish that he made any applications for postings for which he was refused because of discrimination.

88Seven individuals who were the same age or older than applicant Reeves were successful in obtaining positions. There was no circumstantial evidence of bias against older workers.

89Mr. Reeves was diagnosed with cancer and received radiation treatment. He returned to work on modified duties for a brief period before notifying the Health Centre that he no longer required modified duties. He was medically assessed and returned to regular duties in October 2004.

90The cancer returned in 2005 (exact month disputed), but the applicant was working regular duties at the time of closure.

91Although he kept quiet about his condition, he believed that people at work “must have known,” although he did not explain how.

92The evidence does not establish that the respondent knew of the recurrence of cancer shortly prior to the closure or that it made any efforts to discourage the applicant from applying for positions.

93In conclusion, the above applicants failed to establish that they made applications for available postings prior to the plant closure and therefore cannot establish that they were discriminated against in not being successful in those job postings

94Nor was there any evidence during their employment history that indicated that the respondent treated them in a discriminatory manner. Their evidence does not advance the case of the remaining applicants.

Bowie

95The applicant Bowie applied through the respondent’s on-line application system for three postings and claims that his age, family status and/or disability were factors in his failure to obtain a position.

96Mr. Bowie’s claims that his wife was diagnosed with cancer in 2003 and he believed the respondent would not want an employee who would likely need medical benefits for his family.

97Benefits were paid directly by the respondent, but administered through the Calgary office. There was no evidence indicating that any member of management involved in the three competitions was aware of or concerned about this applicant’s potential claim for future benefits. Mr. Bowie’s theory is too speculative to assist.

98With respect to his complaint of age discrimination, in the Production Technician position, 41 individuals applied, 13 were successful. Of those, nine were of the same age or older than this applicant. That does not indicate a preference for workers younger than the applicant.

99With respect to the terminal Technician position, there were 57 applications for 12 positions. Six of the successful applicants were the same age as the applicant or older. That does not indicate a preference for workers younger than the applicant.

100The third position for Production Technician in Mississauga, four individuals applied for a single position. Generally the local bargaining unit members had preference, but the respondent decided to post the position outside the bargaining unit, in case a member of the local bargaining unit did not succeed. As it turned out a member of the local bargaining unit did apply and was successful. Preference for seniority within a bargaining unit was the factor at play, not age or disability.

101The respondent alleges that the applicant did not have a disability within the meaning of the Code. The applicant lists his disabilities as: chronic bronchitis; back spasms, shoulder and knee pain. Specifically he injured his back at work in 1991, he was diagnosed with degenerative disc disease in his early 20’s, and he suffered a shoulder injury in a motor vehicle accident in 2000 and a non-occupational back injury in January 2005.

102Assuming without deciding that the above conditions could constitute a disability, there was no evidence to indicate that the persons making the decisions in the competitions had any knowledge of the applicant’s conditions. The applicant was accommodated as required over the years.

103In 2002, the applicant injured his back baling hay and failed to attend fire school training. He believes that management must have accessed his private medical file in the health centre to know how he injured his back, which is consistent with management keeping tabs on the physical conditions of employees, which could led to disability discrimination.

104There was evidence that in fact the applicant told management how he injured his back. I prefer this evidence in light of the other evidence regarding the confidentiality of the Health Centre records.

105This applicant was placed on the attendance management program in June 2004 and remained there until the plant closure. There was no evidence that his placement on the AMP was unfair, contrary to policy, or was used in any way in the competitions.

Cassady

106Ms. Cassady experienced a work-related knee injury in 2002; in 2003, it was determined that her work restrictions were permanent and that she could not return to her position as operator. She was given alternative work in another department until the date of closure. After that, as she was permanently unable to return to the job of operator, for which she was hired, the Workplace Safety and Insurance Board determined that she was eligible for the Labour Market Re-entry program.

107While still employed at the respondent, she applied for numerous postings, including ones she knew she was not qualified for and even if she knew she could not physically do the job.

108For example, she applied for two bilingual postings, although she was not bilingual; she could speak French, but not write it.

109She applied for a position as Operator at an external employer, although it had been determined by the WSIB that she was incapable of performing the functions of that job.

110She applied for a job that required a university degree, which she did not possess.

111Therefore it is unnecessary to review the many job postings for which she applied. In her evidence, she concentrated on one posting which she felt she had been unfairly denied.

112The position was as Customer Service Representative. The stated criteria were:

• Bilingual preferred

• Strong computer skills (SAP and MS office)

• Customer service or sales history an asset

113The successful applicant was a 25-year-old woman who had been hired on a temporary basis. The applicant felt that it was unfair for the respondent to prefer a recently-hired temporary worker over a long-term employee. She alleged age, gender and disability discrimination.

114Both the applicant Cassady and the successful worker were female, so gender discrimination is not a factor.

115The applicant Cassady was older than the successful applicant and had a permanent medical restriction which would not have been relevant to the position of Customer Service Representative.

116However, the evidence established that the two candidates were not equally qualified. While bilingualism was not required, but merely preferred, the successful applicant was fully bilingual whereas Cassady was not. The successful candidate had strong computer skills, whereas Ms. Cassady had only a week of basic training on the SAP office system. Although Ms. Cassady had some retail experience, she did not mention this on her résumé; the successful applicant referred to her significant sales experience.

117A comparison of the two applications indicates that the successful applicant was more qualified. Thus, there is no prima facie evidence of age or disability discrimination.

118There is one piece of evidence which is troubling. In September 2003 the respondent management team at the Oakville refinery prepared a document outlining its obligations and options toward Ms. Cassady in light of her injuries. At this stage, she had no yet been declared permanently disabled.

119The document stated, in part:

Under the WSIA, we can let her go two years following date of injury (i.e. Feb.8/04) but we’d risk a Human Rights claim plus we’d have to pay the additional benefits of LOE and labour market re-entry services training LMR) at that point instead of in 2005 following closure.

120The document discussed the options of negotiating with the WSIB for her to enter a LMR early, negotiating with Cassady and the union for a monetary buy-out or keeping her employed until closure.

121To my mind, this indicates that the respondent was considering the financial implications of retaining an injured worker. While it is valid to calculate the cost of workplace injuries as part of an assessment of total employee costs, it is not permissible to act upon those costs by terminating the employment of an injured worker because of the cost.

122Yet the document clearly sets out that it risks a human rights complaint if they terminate her employment. This is a strong indication of a potentially discriminatory act.

123However, the respondent did not act upon that option and Ms. Cassady remained employed and was accommodated until the plant closure almost two years later.

124There was no evidence that the management team involved in discussing Ms. Cassidy’s situation in 2003 formed part of the hiring committee, nor any evidence that the person making the decision not to grant Ms. Cassady an interview was aware of her permanent restrictions.

Heelis

125Mr. Heelis applied for three postings for Production Technicians – Boiler House, Production Tech 8 and Production Technician 8 – Utilities and was unsuccessful. He alleged age and disability discrimination.

126Mr. Heelis identified four individuals who were successful in those positions whom he believed were less qualified than himself – J.R., T.F., I.M., and B.M. – because he had a higher “ticket” or refinery qualification than they did.

127With respect to J.R. the respondent’s evidence is that in fact J.R. had a higher ticket than the applicant, he was better qualified than the applicant because he had current experience with boilers, and had served as a shift supervisor. J.R. was older than the applicant.

128T.F. was younger than the applicant; had better troubleshooting and problem solving skills; and the willingness to learn and be part of a team. These are very subjective assessments. I.M. was younger than the applicant and had current experience with boilers. B.M. was younger than the applicant and had previous experience with boilers.

129The evidence was insufficient for me to make firm conclusions on the relative qualifications of the applicant compared to the successful workers. Assuming without deciding that they were relatively equally qualified, I will consider whether there is evidence that age or disability were factors in the decision-making process.

130Generally the age allegations of the applicants have not been borne out as many successful applicants were as old as or older than the unsuccessful ones. In my previous decision, I analysed the statistics provided by the parties with respect to the entire group of successful job seekers compared to the ages of the applicants and concluded that they did not establish a bias against older workers or preference for younger workers.

131There must be something more than establishing that three successful applicants were younger than the applicant Heelis. There is no such evidence. The applicant has not established that age was a factor in the decision-making process.

132The respondent asserts that the applicant Heelis has not established that he had a disability within the meaning of the Code. Mr. Heelis had a back injury in October 2002 and again in January 2003; he was accommodated with modified duties and returned to regular full-time work after each incident. The applicant worked continuously at regular duties from March 2003 to May 2005, the date of the closure.

133This is not the case to elaborate on what temporary conditions meet the definition of disability under the Code. Suffice it to say that in this case, the applicant did not have a disabling condition for over two years prior to the plant closure and there is no evidence to suggest that his past history of temporary back injuries played a role in the decision-making process.

134On the contrary, the Health Centre medical records were kept confidential.

135The applicant has failed to establish that his past medical history was known or played a role in his failure to obtain the three postings he applied for.

Kelso

136Mr. Kelso applied for the postings for Production Technician in Mississauga and Terminal Technician.

137The evidence was insufficient for me to make firm conclusions on the relative qualifications of the applicant compared to the successful candidates. Assuming without deciding that they were relatively equally qualified, I will consider whether there is evidence that age or disability were factors in the decision-making process.

138Generally the age allegations of the applicants have not been borne out as many successful applicants were as old as or older than the unsuccessful ones. In my previous decision I analysed the statistics provided by the parties with respect to the entire group of successful job seekers compared to the ages of the applicants and concluded that they did not establish a bias or preference for younger workers.

139There must be something more than establishing that some successful applicants were younger than the applicant Kelso. There is no such evidence. The applicant has not established that age was a factor in the decision-making process.

140The respondent asserts that the applicant Kelso has not established that he had a disability within the meaning of the Code. Mr. Kelso testified that he had non-evident disabilities such as flu, allergies, back problems, knee problems, migraines, high blood pressure and gall bladder complications. He did not miss much work as a result of these conditions and any temporary restrictions were accommodated.

141This is not the case to elaborate on what temporary conditions meet the definition of disability under the Code. Suffice it to say that in this case, the applicant did not have a disabling condition for many years prior to the plant closure and there is no evidence to suggest that his past history of temporary illnesses played a role in the decision-making process.

142On the contrary, the Health Centre medical records were kept confidential.

143The applicant has failed to establish that his past medical history was known or played a role in his failure to obtain the two postings he applied for.

Kocken

144The applicant applied for several postings and identified certain individuals or certain postings in his evidence that he believed demonstrated age and disability discrimination.

145With respect to the Lab Technician position in Montreal, the applicant was not bilingual, which was a requirement for the job and therefore has failed to establish that he was qualified for the job but passed over because of age or disability.

146He applied for a Technologist position in Research and Development. The successful candidates were both older than the applicant and had been in lab positions at the time of the posting. Mr. Kocken had not been in a lab position since 1990. I conclude that the applicant has not established that he was equally qualified for the Technologist position.

147With respect to the Process/Production operator jobs he applied for, the applicant had only one year of experience from 1979 to 1980. There were many successful applicants who had many years of experience as operators, so he has not established that he was equally qualified as the successful candidates.

148He applied for a Research Technologist position. The successful candidate was in a lab position at the time of the application and had a university degree in Applied Chemistry and Biology, compared to the applicant’s one year of experience in the lab in 1990. The applicant has not established that he was equally qualified for the position.

149The applicant applied for the Terminal Technician Position. There were twelve successful candidates. All the successful candidates scored higher than the applicant except for one. M. W. had a score of 67.9 while the applicant had score of 70.0.

150The applicant has failed to establish that he was equally qualified with 11 out of the 12 successful candidates.

151The evidence was insufficient for me to make firm conclusions on the relative qualifications of the applicant compared to M. W.

152With respect to the position as Technologist in Edmonton, the two successful candidates were the same age or older than the applicant.

153The evidence was insufficient for me to make firm conclusions on the relative qualifications of the applicant compared to the successful Technologists.

154Assuming without deciding that they were relatively equally qualified, I will consider whether there is evidence that age or disability were factors in the decision-making process for the Technologist or the Terminal Technician postings

155Generally the age allegations of the applicants have not been borne out as many successful applicants were as old as or older than the unsuccessful ones. In my previous decision I analysed the statistics provided by the parties with respect to the entire group of successful job seekers compared to the ages of the applicants and concluded that they did not establish a bias or preference for younger workers.

156There must be something more than establishing that some successful applicants were younger than the applicant Kocken. There is no such evidence. The applicant has not established that age was a factor in the decision-making process.

157With respect to disability the applicant had arthritis and hearing loss in one ear since 1979. It did not impact on his job at the respondent nor require any accommodation. His arthritis did not affect his ability to work. It is unclear whether these conditions were known to the Health Centre and they were certainly not known outside the Health Centre.

158The applicant has failed to establish that his non-evident medical conditions were known about or played a role in his failure to obtain the two postings for which he may have been qualified.

Kreuger

159The applicant Kreuger testified that he applied for numerous postings, many of which he was not qualified for or had no background, training or experience in. It is unnecessary to consider each of these competitions. By way of example, he was not qualified for the position of Marine Operations Coordinator, Territory Manager, Dealer/Lessee, Fleet Coordinator, Senior Account Manager, Supervisor Customer Service, or Bulk Loading Supervisor.

160There were only three individuals that he could identify whom he felt had obtained positions he had applied for and were less qualified in the sense that he had more seniority and they were temporary employees. He identified D.T. and R.M. as temporary workers and this was confirmed by the respondent.

161However, neither of these temporary employees were hired into the competitions he complained about, Production Technician and Operating Technician, both in Edmonton.

162The applicant also referred to the Customer Service Representative position which was filled by a temporary worker. However, as the applicant did not apply for this position, this competition cannot give rise to a complaint of discrimination vis-a-vis applicant Kreuger.

163With respect to the postings for Operating Technician (Edmonton), Production Technician (Edmonton), Terminal Technician and Production Technician, there was insufficient evidence before me to determine whether the applicant was comparably qualified to the successful candidates.

164Assuming without deciding that they were relatively equally qualified, I will consider whether there is evidence that age or disability were factors in the decision-making process.

165There must be something more than establishing that some successful applicants were older (this applicant’s complaint was that he was too young to be part of the old boys club) than the applicant Kreuger. There is no such evidence. The applicant has not established that age was a factor in the decision-making process.

166With respect to disability, the applicant had a knee injury in 2002 leading to surgery in 2003; he was accommodated as required. He was on regular duties from March 2004 until the plant closure in May 2005.

167The respondent argues that this temporary knee condition did not constitute a disability under the Code.

168This is not the case to elaborate on what temporary conditions meet the definition of disability under the Code. Suffice it to say that in this case, the applicant did not have a disabling condition for over one year prior to the plant closure and there is no evidence to suggest that his past history of a temporary knee injury played a role in the decision-making process.

169The applicant has failed to establish that his past medical history was known or played a role in his failure to obtain the postings for which he might have been qualified.

170Mr. Kreuger made reference to being criticized by management for not being able to climb ladders during the period of his knee accommodation. However, he did not complain or file a grievance about this alleged criticism and the specific management employee denied the allegations. On a balance of probabilities I find that this criticism did not occur.

March

171Mr. March applied for two positions as Lubeplex Handler and Production Technician and claims that age and disability were factors in why he was not successful.

172The first position was one in which he did not have any experience. Therefore, he has not established that he was as qualified as the successful candidate.

173Mr. March was minimally qualified for the nine Production Technician jobs in Mississauga. 41 individuals applied for the positions.

174There was insufficient evidence before me to determine the relative qualifications between the successful candidates and the applicant. Assuming without deciding that they were relatively equally qualified, I will consider whether there is evidence that age or disability were factors in the decision-making process.

175Generally the age allegations of the applicants have not been borne out as many successful applicants were as old as or older than the unsuccessful ones. In my previous decision I analysed the statistics provided by the parties with respect to the entire group of successful job seekers compared to the ages of the applicants and concluded that they did not establish a bias or preference for younger workers.

176There must be something more than establishing that some successful applicants were younger than the applicant March. There is no such evidence. The applicant has not established that age was a factor in the decision-making process.

177With respect to disability the applicant testified that he experienced depression and bipolar disorder which the respondent did not dispute were disabilities under the Code. The applicant also identified flu and bronchitis.

178In the 1990’s the respondent and the union agreed to exempt the applicant from the progression system because of the applicant’s medical issues. This is known as a “bye”. Since that time, the applicant has not requested or required any other accommodations.

179There was no evidence that the applicant’s medical conditions played any role in the decision-making process for the two postings. It is unclear whether the medical reason for the “bye” were known to anyone making the hiring decisions.

Meikle

180Mr. Meikle applied for three job postings: Production Technician in Mississauga, Terminal Technician and Production Technician 8 in Mississauga. He alleged that his failure to obtain a position was due to age and disability discrimination.

181There was insufficient evidence before me to determine the relative qualifications between the successful candidates and the applicant. Assuming without deciding that they were relatively equally qualified, I will consider whether there is evidence that age or disability were factors in the decision-making process.

182Generally the age allegations of the applicants have not been borne out as many successful applicants were as old as or older than the unsuccessful ones. In my previous decision I analysed the statistics provided by the parties with respect to the entire group of successful job seekers compared to the ages of the applicants and concluded that they did not establish a bias or preference for younger workers.

183There must be something more than establishing that some successful applicants were younger than the applicant Meikle. There is no such evidence. The applicant has not established that age was a factor in the decision-making process.

184With respect to the Production Technician 8 posting in Mississauga, it was awarded to an employee currently in the bargaining unit in accordance with the collective agreement. This negates any potential inference of discrimination.

185With respect to disability, Mr. Meikle testified to having the following conditions: occasional flu, injured ankle required modified duties for ten months, chronic back problems, speech impediment.

186The respondent argued that these temporary conditions do not amount to disability under the Code.

187This is not the case to elaborate on what temporary conditions meet the definition of disability under the Code. Suffice it to say that in this case, the applicant did not have a disabling condition for over one year prior to the plant closure and there is no evidence to suggest that his past history of temporary ankle injury played a role in the decision-making process.

188On the contrary, the Health Centre medical records were kept confidential..

189The applicant has failed to establish that his past medical history was known about or played a role in his failure to obtain the postings for which he might have been qualified.

190The only permanent condition, a speech impediment, never impacted on his ability to work or required any type of accommodation. The evidence did not suggest that this speech impediment was known to the persons making the hiring decisions.

Rainey

191Mr. Rainey applied for the posting for Production Tech 8 – Utilities, not because he was interested in the posting, but to test the Union’s position that the respondent was obliged to fill vacancies with laid off workers. The grievance was unsuccessful and the arbitrator ruled that the applicant did not possess the qualifications to warrant an interview.

192That indicates clearly that the applicant was not qualified for the position, and he cannot assert discrimination in failing to obtain the position.

193Mr. Rainey developed a sensitivity to fumes in the workplace. He complained about noxious odours in the workplace in 1999, 2000, 2002 and 2004. Each time the complaint was investigated and corrective action taken if needed, but Mr. Rainey was not convinced about the adequacy of these measures. Investigations by health and safety experts concluded that the air quality was not unsafe. He filed an internal complaint in 2000 alleging that he was being harassed by management because of his complaints about air quality. Management did not agree and Mr. Rainey did not pursue a grievance.

194My task is not to determine whether Mr. Rainey was harassed or whether the respondent’s response to his air quality complaints was the correct one; suffice it to say that the respondent took the complaints seriously, had air quality reports conducted and concluded that Mr. Rainey’s response to the air quality was not based on scientific evidence.

195There is no indication in the treatment of Mr. Rainey that indicates a reluctance to hire or accommodate workers with disabilities.

Saunders

196Saunders applied for four postings before resigning in 2004.

197With respect to the position of Car Wash Technical Specialist and Maintenance and Construction Coordinator, the applicant lacked experience in those areas, which the successful applicants did have. The applicant did not establish that he was comparably qualified with the successful candidates.

198With respect to two Production postings, the applicant was minimally qualified. There was insufficient evidence before me to determine the relative qualifications between the successful candidates and the applicant. Assuming without deciding that they were relatively equally qualified, I will consider whether there is evidence that age or disability were factors in the decision-making process.

199Generally the age allegations of the applicants have not been borne out as many successful applicants were as old as or older than the unsuccessful ones. In my previous decision I analysed the statistics provided by the parties with respect to the entire group of successful job seekers compared to the ages of the applicants and concluded that they did not establish a bias or preference for younger workers.

200There must be something more than establishing that some successful applicants were younger than the applicant Saunders. There is no such evidence. The applicant has not established that age was a factor in the decision-making process.

201Mr. Saunders testified that he experienced chronic depression, mood swings, sleep disorder and Reiter’s Syndrome, although these conditions never required him to seek any medical restriction or accommodations. He did not discuss these conditions with anyone except the Health Centre. The applicant has not established that management was aware of these conditions, and therefore failed to establish that they played a role in his failure to obtain one of the production jobs.

Solski

202Ms. Solski alleged gender and disability discrimination. She applied for numerous postings, but none as process/operator, which she had been doing prior to the plant closure. Therefore it is unclear whether she was qualified for the postings she applied for.

203Assuming without deciding that she was relatively equally qualified, I will consider whether there is evidence that gender or disability were factors in the decision-making process.

204Some of the successful candidates were male and some were female. There must be something more than establishing that some successful applicants were male to infer gender discrimination. Ms. Solski pointed to the fact that of the six women employed in the refinery, only one was rehired after the plant closing. However, of the six, one’s employment was terminated well prior to the plant closure; one chose employment at the Union office; and one did not seem to have applied for any postings. That leaves one successful female applicant out of three. This is insufficient to establish that gender was a factor in the post-closure hiring decisions.

205With respect to disability Ms. Solski identified a knee injury which required accommodation for one year. She had returned to regular duties by February 2005 and remained on regular duties until the plant closed in May 2005.

206Assuming without deciding that this temporary knee condition is a disability, there is no evidence that this condition was known to the persons who made the hiring decisions. The condition was not active at the time of the closure and in any event, Ms. Solski was not applying for physically demanding positions.

207The applicant has failed to establish discrimination based on disability.

Conclusions

208Having reviewed the circumstances of the 18 applicants, the following patterns emerge.

209Apart from the applicant Waddell, none of the applicants had believed that they had been discriminated against by the respondent because of age and disability. It was only after Mr. Waddell advised them that statistical evidence demonstrated discrimination that they filed applications.

210The primary basis for their belief in age or disability discrimination was the statistics compiled by the Human Rights Commission. In a prior decision I ruled that the statistical evidence did not demonstrate a skewed hiring ratio for older or disabled workers and did not give rise to any inference of discrimination.

211That left the applicants scrambling to identify other evidence of discrimination, which they were unable to find.

212On the contrary, the picture that emerged was of an employer that routinely granted requests for temporary or permanent medical restrictions, as guided by the Health Centre.

213Contrary to the general belief of the applicants that the medical records kept by the Health Centre were known to or easily accessed by the management team, the evidence of the Health Centre physician (an applicant witness) was unequivocal. Management did not have access to the health records of the employees.

214Another bone of contention for the employees was the use of the attendance management program which the applicants viewed as a cipher for punishing disability-related absences. It is not. It is a tool for monitoring absences to determine either an employee has an unacceptable absence rate either due to disability or poor work habits. Poor attendance unrelated to disability may be a cause for discipline. Poor attendance due to disability may give rise to an assessment of whether the worker is capable of reliably doing the essential duties of the job and for determining what accommodations could improve performance.

215The ranking list also caused great consternation and suspicion. As mentioned earlier, management compiled a list of employees and ranked them as to whether they should be rehired. Management asserted that the list was based on performance and not on discriminatory factors or attendance rates.

216I stated earlier that I accepted that attendance was not formally used in the performance reviews or the ranking list, but there was the possibility that poor attendance (including disability-related attendances) may have subconsciously influenced the management team.

217This potential was not assisted by the internal management memo regarding applicant Cassady which set out the pros and cons of retaining a disabled employee.

218These factors combined made it important to assess the circumstances surrounding each applicant’s attempt to be re-hired.

219Having carefully examined the individual cases, the totality of evidence is insufficient to support an inference of any systematic attempt to weed out older employees or employees with disabilities. Apart from Ms. Cassady and Mr. Waddell, none of the applicants had conditions that were likely to financially impact on the respondent’s employee costs.

220With respect to Ms. Cassady, the decision was made in 2003 to provide an alternative position and when she failed to obtain a new position, she was deemed eligible for a labour market re-entry program by the WSIB. There was no financial disincentive in hiring Ms. Cassady for a position other than operator (which it had been determined by the WSIB that she could not do, even with accommodation). On the contrary, had she found another position they would not have had to bear the cost of the Labour Market Re-entry program.

221With respect to Mr. Waddell, the respondent had accommodated his chronic disability for years. Not all of the laid off employees obtained new positions. There was a correlation between those who were not successful and those who were low on the ranking list, which was based on performance. It is not surprising that there should be a correlation between low performing employees and low hiring rates.

222Neither was there any evidence of individual discrimination against the employees.

223The applications are dismissed.

Dated at Toronto, this 4th day of February, 2014.

“Signed by”

Kaye Joachim

Member

Schedule A

T-0190-08.................................................................................................................... James Ellis

TR-0511-09.......................................................................................................... Frank Kasmara

TR-0580-09............................................................................................................ William Brown

TR-0582-09......................................................................................................... Robert Paterson

TR-0584-09............................................................................................................ Richard Kelso

TR-0585-09............................................................................................................ George Heelis

TR-0617-09..................................................................................................... Thomas Saunders

TR-0618-09.......................................................................................................... Robert Waddell

TR-0623-09......................................................................................................... Radcliffe Meikle

TR-0626-09....................................................................................................... William Michaluk

TR-0632-09............................................................................................................. Steven Bowie

TR-0652-09............................................................................................................... Helen Solski

TR-0688-09......................................................................................................... Susan Cassady

TR-0695-09.............................................................................................................. Robert March

TR-0699-09.......................................................................................................... Dennis Reeves

TR-0712-09............................................................................................................ Morris Kocken

TR-0716-09......................................................................................................... Richard Dimock

TR-0759-09........................................................................................................... William Rainey

TR-0763-09............................................................................................... Robert Adam Kreuger