HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Ellwood
Applicant
-and-
Sauve’s Home Centre Ltd.
Respondent
DECISION
Adjudicator: Maureen Doyle
Indexed as: Ellwood v. Sauve’s Home Centre Ltd.
APPEARANCES
John W. Ellwood, Applicant
Self-represented
Sauve’s Home Centre Ltd., Respondent
Sean Sauve, Representative
Introduction
1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondent denies having discriminated against the applicant contrary to the Code.
DECISION
3I do not find that the applicant has established on a balance of probabilities that the respondent discriminated against him on the basis of disability or age, and the Application is dismissed.
Background Facts
4The respondent sells lumber and hardware. Lumber is sold, mostly to contractors, from its lumber yard and hardware is sold to the public from its store. In August 2012, the respondent hired the applicant as a truck driver to make deliveries of goods from the yard to its customers. The applicant possessed an “A-Z” driver’s licence, permitting him to drive all of the trucks at the respondent employer.
5The applicant testified that he was interviewed for his job by Sean Sauve; Paul Peterson, the individual in charge of the respondent’s human resources at the time; and Mr. A. He alleges he was told him that Mr. A., who drove the boom truck, was considering retiring and that if they hired the applicant, they would consider training him to drive the boom truck in order to prepare him as a replacement for Mr. A. He testified that the structure or frequency of training was never discussed at the interview.
6Sean Sauve testified that, at the applicant’s hiring interview, they discussed the possibility of training on the boom truck with the applicant, indicating that it would be as time and money warranted. He testified that Mr. A. is the primary boom truck driver and that in the busy season the truck would be sent out on deliveries daily, but could sit in the yard for weeks at a time in the winter. He testified that he sent the applicant along on local deliveries made with the boom truck, but that it would not be cost effective to send two drivers out on the truck for deliveries being made father away.
7Mr. Peterson also testified that at the hiring interview, the applicant was advised that, as times allowed, he would be sent out with the skilled boom truck driver for training. He testified that it was expensive to send two people out on a truck, so that there would be limits on when he could be sent out on the boom truck to train.
8The applicant testified that he went out on the boom truck as an observer a few times in August 2012, and that from mid-September to November of that year, he went out about three more times, as driver and operator of the boom truck, but was accompanied by Mr. A. He testified about errors he made the first and second times, which resulted in the load dropping off the forks. He testified that he went out again after that and that things went smoothly, but that when he asked Mr. A. how he was doing, Mr. A. said they would only know that when they sent him out to make a delivery with the boom truck on his own. He testified that he never went out on the truck again. Though he testified that he was out on the truck from mid-September to November of 2012, he also testified that the last time he was out on the boom truck was December, 2012. He testified that after that he was assigned to drive the respondent’s other trucks, but not the boom truck.
9Mr. Sauve testified that the applicant was never sent out on his own on the boom truck to make deliveries, as a good deal of training is required before an individual is ready to do that. He testified that the applicant was sent out seven or eight times, but that due to a “near miss accident” in May 2013, when items fell near a customer, it was determined that he needed more training before it would be clear whether he was going to be able to drive the boom truck.
10Mr. Sauve testified that the applicant’s first performance evaluation was on November 19, 2012, three months into his employment, and that it was a favourable review. He testified that after the performance interview, he and Mr. Patterson and Mr. A. discussed it and as a result the applicant was given a 50 cents per hour raise.
11Mr. Peterson also testified that the applicant was given a raise at his first performance evaluation, and testified that there had been no negotiation regarding the amount.
12The applicant testified that his work hours were cut following a dispute with the employer about a pay increase in April 2013. He testified that he argued with Mr. Sauve who had initially approved only a 25 cents per hour increase, and he was then awarded a 50 cents per hour increase. Two weeks after that, however, he states that his hours were reduced from 8 a.m. to 5 p.m. to 8 a.m. to 4 p.m. He testified that he believes that his hours were cut because he disputed the initial wage increase and angered Mr. Sauve in the process.
13Mr. Sauve testified that the spring and summer of 2013 were very busy and that the respondent even hired a part time driver, for a total of three drivers. He testified that the third driver was 72 years old when hired.
14It was not disputed that the applicant was away from work from September 4, 2013 to November 8, 2013, due to a workplace injury. He testified that when he returned to work, he returned to full duties. The applicant also testified that he had hurt his back and that he wore a brace when lifting heavy items. The applicant also testified that he was sent home earlier in his shifts than were other employees, and that around September 2013, it “just got ridiculous after that”.
15The applicant also testified that in November 2013, there was a more recent hire working “in the yard with us” and Mr. Sauve sent the applicant home instead of sending home the more recent hire. He testified that he told Mr. Sauve to send the more recent hire home instead and that after that the situation deteriorated as the following week he ceased to be assigned work in the yard and was assigned driving duties only. He testified that the more recent hire was not a driver, but was hired to work in the yard exclusively.
16With respect to hours, Mr. Sauve testified that the applicant worked hours warranted by the number of deliveries required, and that his hours fluctuated from 30 to 40 hours per week, depending on the season, due the nature of the business. He testified that over the winter months, the applicant’s hours were reduced as business is slower in the winter, and that Mr. A., the “primary driver” at the respondent, received the bulk of the hours.
17It was also Mr. Sauve’s evidence that though the applicant was hired as a truck driver, in order to give him more hours, he sometimes assigned the applicant to cut wood in the woodworking shop or work in the yard with customers. He testified that these assignments were often given to the applicant between deliveries.
18The applicant testified that in November 2013, Mr. Peterson asked him how the training was going and appeared surprised that his training on the boom truck was not ongoing. He testified that “a couple of days” after that, Mr. A. came to him and told the applicant that he had asked “them” why they were going to train a man who was going to be 60 years old how to drive the boom truck. He testified that he asked Mr. A. if he was stupid and that Mr. A. thought it was funny. He testified that he did not know who “them” referred to and that he did not speak to Mr. A. for about a month and a half after that. The applicant testified that no other staff was being trained to operate the boom truck.
19Mr. Peterson testified that in November 2013, he asked the applicant how the boom truck training was coming along, and that the applicant advised him that he was not being trained. He testified that the applicant advised him that Mr. A. had stated that he did not know why the company was training him, as he and Mr. A. are too old for this type of work. He testified that he told the applicant that Mr. A. does not make the policy, senior managers do, and that they do not discriminate. He testified that he advised the applicant that he himself had been 64 at the time of his hire, and that another truck driver had been hired at 72 years of age, and that still another employee was hired at 60 years of age. He testified that he told the applicant he would talk to Mr. A. about it and would get back to him.
20Mr. Peterson immediately spoke to Mr. A. in his office and asked him if he had made the comment. Mr. A. admitted to making the comment, but said that it had been said in jest. He cautioned Mr. A. and told him that comments like that are not permitted as they can be interpreted differently from the way in which they are intended. Mr. Peterson told Mr. A. to correct it immediately by speaking to the applicant and by telling him that policies are set by management and that they do not discriminate. He testified that he asked Mr. A. if he would like him to come along to the meeting with the applicant, but that Mr. A. declined and said he could handle it himself. A copy of the November 15, 2013 “Employee Warning Notice” which Mr. Peterson issued to Mr. A. for his comment, was entered into evidence at the hearing.
21Mr. Peterson testified that he followed up with Mr. A. and asked him if he had spoken with the applicant. Mr. A. confirmed that he had spoken to the applicant and that he had told him it was just a joke and that he did not set company policy. Mr. A. also told the applicant he would take him out on training whenever Mr. Sauve told him to do so.
22Mr. Peterson told Mr. Sauve about the incident, but advised him that he did not need to become involved as it had been taken care of. He testified that he did not always see the applicant, but that he saw him a few days later and spoke with him about the fact that he had spoken to Mr. A., and reassured him that the respondent does not discriminate. He testified that he told the applicant to come to see him if there were any further incidents. This was not disputed by the applicant.
23Mr. Sauve also testified that Mr. Peterson brought to his attention the fact that Mr. A. had made a comment to the applicant about having said that the respondent should not train a 60-year-old man. He testified that when he was made aware of the comment, a verbal warning was issued to Mr. A. reminding him that the respondent does not discriminate. He testified that he did not advise the applicant that the matter had been dealt with, and that he would have left that to Mr. Peterson, who is in charge of Human Resource matters.
24The applicant testified that Mr. Peterson and Mr. Sauve gave him a performance evaluation in November 2013 and that there were “heated” moments and he was not pleased with the evaluation. He testified that Mr. Sauve told him he was “just a driver” and that he had “no money for drivers”. He testified that he received no pay increase at that time.
25A performance appraisal dated December 5, 2013 was entered into evidence. The applicant acknowledged that it indicated that his “number 1 goal when hired was to learn how to safely operate the boom truck and he has failed in this area to the point where the company is actively seeking a boom truck operator/driver”. He agreed that this was discussed with him. The evaluation also indicated, however, that his cross-training on the boom truck would continue.
26Mr. Sauve testified that initially he had no concerns with the applicant’s job performance, but that around late summer of 2013 and again in November 2013 when the applicant returned to work after his injury, he began to get negative reports from his customers that the applicant was belligerent on job sites, refused to place loads where customers requested, and some customers even requested that he not be sent to deliver their load. He testified that this was reflected in the poor performance review the applicant received in December, 2013. The Development Objectives identified in the performance review were to be friendly with customers and staff and to control his anger, as well as to learn to operate the boom. It also indicated that a follow-up meeting regarding anger management and control was scheduled for June 1, 2014. Mr. Sauve testified that there was no wage raise after this performance review, as he, Mr. Peterson and Mr. A. determined that the applicant would not receive a raise until he had improved his attitude, a matter which would be reviewed at the June 1, 2014 follow-up meeting. It was not disputed that normally, a wage review would only have been done on an annual basis, but that the six-month review would provide the applicant with another opportunity to receive the wage increase denied in December 2013.
27With respect to the applicant’s performance review in December 2013, Mr. Peterson testified that there were “attitude issues” that the applicant had to correct. He testified that he had received complaints from the employees at the sales counters in the store that the applicant was sometimes vulgar and disrespectful; and that there were issues with deliveries also, when he would not place the load where customers wanted it and when he would not call in for address information when he had difficulty finding places, but simply returned the order to the yard instead. He testified that he advised the applicant that he would continue to be cross-trained on the boom truck, as time allowed, though the company was looking to hire someone to replace Mr. A. in this function.
28Mr. Peterson also testified that there was to be no wage increase for the applicant at that point, and that he advised the applicant the issue would be reviewed again in six months, based on the performance review. He testified that, at first, the applicant seemed to accept this, but that he later received complaints from the workers at the counters in the store that the applicant’s attitude had worsened. He testified that he did not do anything with this information at the time, as the Christmas period was nearing and there would be a slow-down of work. He testified that a severe winter was expected and that it was determined that the applicant would be laid off. He testified, however, that Mr. Sauve did not want to lay the applicant off before Christmas, and that staff would be laid off after Mr. Sauve’s return from vacation. He testified that he himself took a two-month leave of absence in January and February 2014 due to a poor cash flow situation at the business that winter.
29Mr. Sauve testified that business was very slow in the winter of 2014, as it was particularly cold and builders could not put any foundations in the ground. He testified that, as he had no work for the applicant, he had to lay him off. He testified that no one else was laid off, but that a number of other part-time employees had hours drastically cut. He also testified that he had hired a new employee in the autumn of 2013, but that this was an individual with managerial experience who was being trained to assume the role of manager at the yard. He testified that in the winter, the business of the hardware store continues and that full-time employees continue to do work in the store, but that Mr. A., who drives the respondent’s trucks, had his hours cut that winter, as did another individual who works in the lumber yard. He testified that full time employees remaining during the winter had to “wear many hats”.
30The applicant testified that on January 16, 2014, he made a delivery of wood in the morning and that he slipped and broke a piece of the wood he was delivering. He indicated that he recorded the fact on the invoice which he handed in when he returned to the shop. He then went out to do another delivery, returning at about 2:20 p.m. He testified that at that time, Mr. Sauve met him outside with an envelope and a notice of lay-off and his last paycheck. He testified that when he asked Mr. Sauve the reason for the lay-off, Mr. Sauve indicated that business was slow. In his Application, the applicant stated that he felt that he was being laid off due to the fact that he had been off due to a workplace injury in September and October, 2013.
31The applicant testified that he called and spoke with Mr. Peterson in April, 2014. He testified that he asked for severance pay, and asked if things were busy, but that Mr. Peterson advised that they were not busy enough to call the applicant back to work. He also testified that on May 5, 2014, he contacted Mr. Peterson and advised that he was claiming severance pay. He testified that he did not ask about a return to work, as he knew they already had hired another driver. He also testified that he talked to Mr. Peterson about his discussion with Mr. A. regarding the comment about not training a 60-year-old man, and Mr. Peterson stated that Mr. A. had admitted saying it but said it was a joke.
32In his Application, the applicant indicated that on May 5, 2014, he asked Mr. Peterson if he had spoken to Mr. A. about the comment and that Mr. A. had indicated that Mr. A. had intended it as a joke. In his testimony, Mr. Peterson stated that in the telephone conversation, he indicated that he had spoken with Mr. A.
33The applicant testified that Mr. Peterson had provided an accurate account of his response to his complaint about Mr. A.’s comment, but that he was not satisfied.
34Mr. Peterson testified that the applicant called on April 15, 2014, and inquired about his employment at the respondent. He testified that he advised the applicant that business was still slow, but that things were “picking up” and he anticipated that things would be better in a couple of weeks. He testified that he did not advise the applicant that part of the reason he was not being called back to work right away was a problem with cash flow the respondent was experiencing at the time. He testified that the applicant called back later that same day asking for severance pay. He testified that the only ones driving full-time during that period were an employee, “R”, who was completely cross-trained, and Sean Sauve; Mr. A. was brought back occasionally.
35Mr. Sauve testified that another driver was hired before Mr. A. retired in the spring of 2014, and that the new driver had experience operating boom trucks and would be ready to replace Mr. A. when he retired. He also testified that another driver would be needed in the spring when business picked up, and that according to the performance review, the respondent had intended to schedule a follow-up performance review with the applicant in June 2014, and accordingly was prepared to recall the applicant and to continue his training on the boom truck during its busier season.
36The applicant has alleged that he had his hours of work cut when other workers did not. In his own testimony regarding his allegation of reduced hours in April, 2013, he indicated that he believes they were cut following a wage dispute he had with the respondent. This is not evidence which would establish a link between either age or disability and the respondent’s alleged reduction of his work hours.
37The applicant also alleged that the reduction in his hours became “ridiculous” following September 2013. It is not disputed, however, that the applicant was off work due to a workplace injury from September to November, 2013. In these circumstances, I do not find the applicant’s vague assertion regarding a reduction in hours following September 2013 to be reliable evidence.
38The only particularized allegation the applicant made regarding a reduction in hours related to an incident in November 2013 when a more recently hired employee was permitted to continue to work and he was sent home. He testified about a dispute he had with Mr. Sauve about the more recent hire being permitted to remain at work one day when he was sent home, and a subsequent failure to assign him work in the yard. The applicant did not provide any evidence regarding the other employee’s age. He has indicated that the other individual was not a driver, but was assigned to work in the yard only. There was no dispute that the applicant’s position at the respondent was that of a driver, and that he had sometimes been assigned to other work between deliveries. I am not persuaded that the respondent’s actions in sending the applicant home early instead of a more recently hired employee one day in November 2013 was due to the applicant’s disability or age. Further, I am not persuaded that the evidence establishes on a balance of probabilities that the respondent ceased to assign the applicant to duties in the yard due to age or disability.
39In his Application, the applicant also alleges that for discriminatory reasons the respondent failed to pay him the proper wage due to him. There is no dispute that he received his initial wage increase. The dispute appears to relate to the fact that he did not receive a wage increase after his November 2013 performance review. While the applicant indicated his displeasure with the performance review he received in November, 2013, he did not provide evidence to disprove the performance concerns outlined in the performance evaluation document. Further, he did not dispute that a follow-up meeting was scheduled for June 1, 2014, and that depending on the results of that meeting regarding his performance, he may have received the wage increase at that time, even though the norm was for an annual review only. In these circumstances, and especially where the respondent was prepared to provide a second chance to the applicant to receive the wage increase, I am not persuaded that the denial of a wage increase was due to disability or age.
40The applicant has also alleged that he did not receive training on the boom truck and that this was for discriminatory reasons. There was no dispute that the training offered by the respondent was on an “ad hoc” basis only, dependent on time and money. For the respondent to provide such training, circumstances had to be such that it was economically sound to send two drivers on one delivery.
41The applicant relies upon the comment made by Mr. A. that he did not understand why the respondent would want to train someone who was almost 60 years old to drive the boom truck. There was no dispute that once this comment was brought to the attention of Mr. Peterson, he reassured the applicant that Mr. A. does not set company policy and advised that the respondent would not discriminate on the basis of age. The documentary and testimonial evidence indicates that Mr. A. was issued a verbal warning for his comment. There is no dispute that Mr. Peterson followed up with the applicant to assure him that he had spoken with Mr. A. and to confirm that there would be no age discrimination.
42Further, there was no dispute that the applicant’s boom truck training had not gone smoothly, and the December 2013 performance evaluation reflected that fact. Similarly, however, there was no dispute that even at that time, the respondent remained committed to providing cross-training on the boom truck to the applicant, though he was not selected to replace Mr. A. I note here that there was no evidence of any pay raise awarded in connection with driving the boom truck.
43The applicant’s evidence was that he recalled his last time out on the boom truck as being in December, 2012, while the respondent’s evidence was of a “near miss” accident at a customer’s in May 2013 when the applicant was out on the boom truck. In any event, it is clear that Mr. Peterson must have believed the training to be ongoing as he made an inquiry of the applicant in November, 2013. While it is true that the applicant did not receive boom truck training after the mid-November comment by Mr. A., given the fact that he was laid off in mid-January 2014 and given the fact that the training had only ever been on an ad hoc basis, and given that the evidence indicates that the boom truck was seldom in use in the winter, I am not persuaded that Mr. A.’s comment establishes on a balance of probabilities that the applicant was not trained on the boom truck due to age or disability.
44The applicant also alleges that his lay-off from employment was for discriminatory reasons. In particular, he alleges that he “felt” that his lay-off was due to the fact that he had been away from work due to a workplace injury in September and October, 2013. There is no dispute that the applicant’s December 2013 performance evaluation was poor and that a need for improvement was noted. Even in the face of that review, however, the respondent established a further review date of June 1, 2014 for the applicant. This is inconsistent with an intent to terminate his employment. While it is possible that such a meeting could be scheduled without any intent to continue an employment relationship, the applicant has not provided evidence which would cast such doubt on the respondent’s intentions.
45Further, and more significantly, the respondent’s evidence regarding the severity of the winter of 2014 and its attendant effect on business, has not been challenged. There was no dispute that Mr. Peterson himself took a two-month leave of absence due to cash flow problems at the business that winter. While some full-time employees remained with the respondent during that winter, the applicant has not provided evidence to indicate that he should have performed the various duties performed by those employees, or that sufficient truck driving work was available for him to also remain at work. Further, there is no dispute that when the applicant called the respondent regarding his employment status, he was not advised that his employment was terminated, only that the business was not yet busy enough to recall him to work. There is no dispute that the applicant requested his severance payments. In all of these circumstances, I am not persuaded that the respondent terminated the applicant’s employment for discriminatory reasons.
46For all of the reasons above, the Application is dismissed.
Dated at Toronto, this 28th day of July, 2015.
“Signed by”
Maureen Doyle
Vice-chair