HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeffrey Reaume
Applicant
-and-
Total Security Management and Securitas Canada Limited
Respondents
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Reaume v. Total Security Management
APPEARANCES
Jeffrey Reaume, Applicant
Self-represented
Total Security Management, Respondent
David McKechnie, Counsel
Securitas Canada Limited, Respondent
Dan McDonald, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and family status. The hearing of this matter was conducted on February 19 and 20, 2015.
Background
2The basic facts of this matter are not in dispute. The applicant was employed as a supervisor for the respondent Total Security Management (“TSM”) between September 9, 2010 and March 31, 2013. The applicant worked at a customer location, Sanofi-Pasteur (“Sanofi”), with which TSM had a contract to provide security services. The applicant supervised the night shift at the Sanofi site and was paid $18.57 per hour. In the winter of 2013, Sanofi contracted with the respondent Securitas Canada Limited (“Securitas”) to provide on-site security services commencing on April 1, 2013, displacing TSM. On February 22, 2013, Securitas offered the applicant employment, which the applicant accepted. Securitas, however, terminated the applicant’s employment on April 2, 2013 on the basis that it did not have a position available for him.
The Application
3The applicant states that he suffers from protruding discs in his back and migraine headaches. These conditions cause the applicant to miss work occasionally and he states that he is occasionally absent to receive medical treatment. The applicant is married and has a young daughter. The applicant alleges that while employed by TSM he was moved to the night shift because his manager thought he was “too slow”, given an unjustified suspension, awarded an unduly low bonus and subjected to harassment when he was absent due to pneumonia. The applicant also alleges that TSM managers “slandered” him to Securitas by informing Securitas that he had high absenteeism and had been absent due to pneumonia. The applicant advised Securitas that he needed a schedule that would allow him to pick his daughter up at daycare. The applicant asserts that Securitas did not offer him a position because of his scheduling needs and his disability. The applicant also alleges that his Record of Employment (“ROE”) was delayed and that his severance pay was initially not correct.
Responses
TSM
4Garda Canada Security Corporation (“Garda”) acquired TSM in November of 2013 and filed a Response on behalf of TSM. In Interim Decision 2014 HRTO 1620, however, the Tribunal granted TSM’s request to remove Garda as a respondent and directed TSM to file a Response.
5In its Response, TSM denied any violation of the applicant’s rights. TSM stated that Securitas took over the security services contract at Sanofi and, pursuant to the Employment Standards Act, 2000 (the “ESA”) had to offer the applicant employment or provide him with notice and severance pay. TSM denied that any of its employees made any derogatory comments to Securitas regarding the applicant. TSM states that it responded to the applicant’s queries regarding his ROE and severance pay on April 4, 2013 and offered to provide him with a letter of reference.
Securitas
6Securitas also denied any violation of the Code. Securitas confirmed that it took over the security services contract at Sanofi and offered the applicant employment in accordance with the ESA (in particular Ontario Regulation 287/01 “Building Services Providers”). Securitas stated that it was not a party to any slander or malicious commentary regarding the applicant. Securitas noted that the applicant had been earning $18.57 per hour while working for TSM at the Sanofi site, which is a high wage rage in the security industry. Securitas asserted that there was no position for the applicant at the Sanofi site after it took over the security contract and certain changes were implemented.
7Securitas also noted that the majority of its employees in Ontario are represented by the United Steelworkers union (“USW”) and that Unifor represents a smaller bargaining unit of guards working at General Motors facilities. Consequently, the applicant would be required to commence employment with Securitas as a security guard in one of these two bargaining units. The respondent asserted that the applicant failed to pursue the “myriad of work opportunities” available in the USW and Unifor bargaining units. In particular, the respondent asserted that the applicant declined an offer of employment to work at the General Motors facility in Oshawa, where he would have earned a wage within ten per cent of his wage with TSM. Accordingly, Securitas terminated the applicant’s employment without cause and paid him his entitlements under the ESA. Securitas states that any problems with the issuance of the applicant’s ROE were the result of administrative errors.
The Hearing
8The hearing on this matter was held on February 19 and 20, 2015. The applicant testified and presented one other witness: Murtaza Saleem. TSM presented one witness: Gordon Goodspeed, and Securitas presented two: Cliff Sampogna and Andy Hiddink. The parties adduced 7 documents into evidence, including the appendix of documents attached to the Application and a book of documents from each of the respondents.
Evidence
Applicant’s Evidence
9The applicant tendered several documents that confirmed that he has been treated for migraine headaches and lower back pain for the last several years. The applicant also adduced a doctor’s note, dated February 14, 2011, that he provided to TSM. The note indicates that the applicant has a history of migraine headaches and that he may require days off intermittently. The applicant adduced three other medical notes, dated January 2, 2013; February 28, 2013 and March 3, 2013, that he provided to TSM to cover absences due to illness. The applicant also pointed to an e-mail message he sent to his supervisors on August 28, 2012 to inform them that he would need to take off his shift on September 12, 2012 to take treatment for his back. The applicant conceded in cross examination by counsel for TSM that only the doctor’s note of February 14, 2011 indicated any need for accommodation.
10The applicant also pointed to e-mail and text messages that he sent to Mr. Goodspeed, the Account Manager. The applicant wrote to Mr. Goodspeed to express his view that a one-day suspension on January 22, 2013 was unjustified and to inquire about the rationale for the bonus he received from Sanofi in 2012, which he considered to be unduly low. The applicant received the suspension because his supervisor, Andrea Kennedy, concluded that he had not followed proper procedure in a “flicker” situation, i.e., a power interruption. As noted, the applicant did not agree with this assessment. The applicant also noted that he had been placed on the night shift, despite his request for the day shift. It does not appear that the applicant received a response by e-mail on any of these issues.
11The applicant pointed to two e-mail messages to his superiors, dated March 8, 2013 and March 21, 2013, respectively. In the first message, the applicant stated that he attended a training session on Saturday, March 2, 2013 despite suffering from fever and a bad cough. The applicant stated that during the session several supervisory personnel made fun of him when he coughed and asked him “can you shut up”. The applicant stated that no one showed any empathy towards him or asked him if was able to work. The applicant confirmed that he was diagnosed with pneumonia the next day and was advised to take seven days off to rest. He received a doctor’s note to cover the absence. The applicant advised a supervisor, Steve Demelo, of his absence and a different supervisor, Dimitri Aghamalyan, contacted the applicant to confirm that he would return to work the following Saturday. The applicant responded to the effect that the seven days ran from Sunday. The applicant then stated that Mr. Aghamalyan called him and took the position that the applicant had informed Mr. Demelo that he would work the next Saturday and was now resiling from that position, which was unacceptable. The applicant recorded that he explained what he told Mr. Demelo, in particular that he received the doctor’s note on Sunday. The applicant stated that Mr. Aghamalyan responded to the effect of “oooh, it’s about the note eh Jeff… well since you’re not coming in, I’m going to call Brian.”
12In the second message, the applicant also complains about Mr. Aghamalyan’s reaction to learning that the applicant would not return to work on Saturday March 9, 2013. The applicant stated that Mr. Aghamalyan stated that the applicant’s behaviour was unacceptable and that the issue was about “the doctor’s note”, when the issue was really his health. The applicant’s evidence was that nothing was done regarding his complaint.
13In cross-examination by counsel for TSM, the applicant agreed that he was absent with pneumonia for a week and had no ongoing issues with that illness after that.
Applicant’s Evidence Regarding Securitas
14The applicant pointed to an e-mail message, dated February 27, 2013, to Keith Large. At the time, Mr. Large was an Area Vice President for Securitas. In that message, the applicant formally accepted Securitas’ offer of employment and inquired about potential work at the General Motors location and about locations/positions that Securitas had in mind for him. The applicant also expressed his interest in head office positions or managerial or operations positions. With respect to scheduling, the applicant advised that he could not work on a rotating schedule because he had commitments with his daughter’s daycare. The applicant stated that a day position would be ideal. The applicant forwarded this message to Cliff Sampogna on March 14, 2014, who was a Branch Manager for Securitas at the time, who was involved in the transition from TSM to Securitas. In the forwarding message, the applicant stated that he was “hoping to keep a consistent schedule, daytime hours being preferred as I have responsibilities with picking up my daughter at daycare”.
15The applicant pointed to an e-mail message, dated March 18, 2013, that he received from Mr. Sampogna, who was a Branch Manager for Securitas at the time. In that message, Mr. Sampogna asked the applicant to send him an updated resume. The applicant’s evidence was that he did in fact send Mr. Sampogna his resume.
16In cross-examination by counsel for TSM, the applicant acknowledged that Securitas advised him that it had positions available at General Motors. The applicant noted, however, that he made inquiries regarding these positions, but was never offered a position at the General Motors site. The applicant denied that he turned down a position working at General Motors.
17The applicant agreed that he sent an e-mail message to Mr. Goodspeed on April 3, 2013 to inquire about administrative issues related to the termination of his employment and also to request a letter of reference and industry contacts. The applicant agreed that Mr. Goodspeed provided him with a reference letter and also advised him that the only available work at TSM would be guard positions, paying $13 per hour. The applicant agreed that he did not take up the suggestion of guard work at that rate. The applicant also agreed that bonuses had been assigned by Sanofi. He stated, however, that TSM management provided Sanofi with some input, but he could not say what information TSM gave to Sanofi.
18In cross-examination by counsel for Securitas, the applicant agreed that Securitas offered him employment, which he accepted, but stated that Securitas never gave him any work. The applicant agreed that he completed an employment application with Securitas, which he identified. The applicant conceded that the he had indicated on the form that he could perform the essential functions of the job he was applying for without restrictions, but pointed out that he had also indicated that he could not work on afternoons.
19The applicant acknowledged that he became a member of the USW after he accepted Securitas’ offer of employment, which included completing a union card, paying union dues and signing up for benefits through the USW. The applicant agreed that as of March 20, 2013 he was entitled to work with Securitas. His evidence, however, was also that he sought help from the USW at that time only to have the USW deny that he was a member. The applicant conceded that he did not ask for any shifts, including day or night shifts, but was told that there was nothing in his pay range. He agreed that his wage rate at Sanofi was high for the security industry. In re-examination, the applicant stated that he was never instructed to call in for work and was not given information about how to find work at Securitas. The applicant reiterated that the USW advised him that it could not help him and asked rhetorically what else he could have done. The applicant stated that his contacts at Securitas, Cliff Sampogna and Keith Large also did not know if the applicant was part of the union.
20The applicant agreed that he sent an e-mail message to Andy Hiddink, the General Manager of Securitas’ General Motors locations on April 4, 2013 to inquire about potential job openings at the General Motors site. The applicant agreed that he sent this message two days after the termination of his employment with Securitas, but stated that he had sent e-mail messages regarding employment at General Motors previously.
21Murtaza Saleem was a Mobile Director for TSM in the period material to this Application. In that role, Mr. Saleem’s duties included visiting various sites to deliver documentation and to speak with supervisors. Mr. Saleem stated that he visited the Sanofi site during the week the applicant was absent with pneumonia. Mr. Saleem’s evidence was that he overheard a conversation between two supervisors, Andrea Kennedy and Steve Demelo, who were discussing the applicant. According to Mr. Saleem, Mr. Demelo commented to the effect that the applicant would not succeed at Securitas because he often “books off sick”, has recurring issues with his back and migraine headaches and picks his daughter up at daycare. Mr. Saleem stated that he was shocked because he considered the applicant to be highly competent and professional. In cross-examination by counsel for TSM, Mr. Saleem agreed that he had not been present at any meeting between Mr. Demelo and Securitas and that he had not reported the conversation to TSM management.
TSM’s Evidence
22Gordon Goodspeed was employed by TSM between December 2010 and November 2013, when Garda World Security (“Garda”) purchased TSM, at which point Garda became his employer. Mr. Goodspeed began his employment with TSM as an Operations Manager and was promoted to Account Manager in mid-2012. Mr. Goodspeed was responsible for the Sanofi location. Mr. Goodspeed’s evidence was that Sanofi was responsible for the bonuses received by TSM employees working on the Sanofi site. Accordingly, Sanofi determined who was eligible for bonuses and the amounts paid to each individual. TSM provided Sanofi with the employees’ annual review scores for consideration in the bonus process. Mr. Goodspeed stated that he assumed Sanofi took this information into account, but could not be certain because he was not involved in their deliberations.
23Mr. Goodspeed’s evidence was that he recalled that the applicant was unhappy about a one-day suspension he received in January 2013 and wanted to meet with Mr. Goodspeed to discuss it. He recalled receiving two letters the applicant sent to him by e-mail setting out the issues the applicant wanted to discuss, including the suspension, the applicant’s bonus and his schedule. Mr. Goodspeed’s recollection was that they had intended to meet in person, but were unable to and ultimately held their discussion over the phone. According to Mr. Goodspeed, the discussion centred on the suspension, since the applicant’s bonus was out of his control. Mr. Goodspeed stated that he was aware the applicant had some absences related to pneumonia and also for back issues, but, to his knowledge, the applicant did not require accommodation to do his job. Mr. Goodspeed stated that the applicant’s absences were not part of their discussions.
24Mr. Goodspeed’s evidence was that TSM was notified that Securitas was taking over the Sanofi site in mid-February 2013. Mr. Goodspeed stated that he provided Sanofi with the information required under the ESA to effect the changeover, but had no contact with Securitas before March 31, 2013, when TSM’s contract expired. Mr. Goodspeed was aware that Securitas met with the employees on the Sanofi site prior to the changeover, but was not involved in the discussions and arrangements Securitas had with them.
25Mr. Goodspeed recalled receiving the applicant’s e-mail of March 21, 2013 in which he complained of how supervisors treated him when he was ill with pneumonia and that senior staff had informed Securitas about his absence due to pneumonia. Mr. Goodspeed’s recollection was that he had a telephone conversation to address the applicant’s concerns. Mr. Goodspeed did not recall the details of the conversation, but believed he indicated he would address the treatment of employees as the end of the contract approached In that regard, Mr. Goodspeed stated that he would have spoken to Andrea Kennedy, an Operations Manager, to direct her to ensure employees remain respectful in the last days of TSM’s contract at Sanofi.
26Mr. Goodspeed confirmed that he provided the applicant with a positive letter of reference at the applicant’s request. He explained that the applicant had been a good employee and he had no issue with recommending him or re-hiring him. Mr. Goodspeed confirmed that he had informed the applicant that the only positions available at TSM were guard positions paying about $13 per hour. The applicant did not follow up regarding guard positions.
Securitas’ Evidence
27Cliff Sampogna currently holds the position of Branch Manager for Securitas’ Mobile Division. Between January and June of 2013, he was a Branch Manager in Securitas’ Guarding Department and was involved in the takeover of the security contract at Sanofi. Mr. Sampogna’s evidence was that Securitas received information about the security employees at the Sanofi site from Sanofi. This information consisted of the information required under the ESA and was presented in the form of a chart, which was tendered in to evidence. The chart sets out basic information about each employee, but does not include any information about absences or accommodation.
28Mr. Sampogna’s evidence was that Sanofi requested that the applicant not be employed on their site. Consequently, Securitas could not offer him a position at Sanofi. Securitas also could not offer the applicant a position at or near his rate of $18.57 per hour. According to Mr. Sampogna, Securitas attempts to find employees positions within 10% of their wage and if such a position cannot be located, they are offered an opportunity to apply for work through the USW. The exception would have been at the General Motors site, where pay is higher, but Mr. Sampogna stated that the applicant did not accept work there. Mr. Sampogna testified that he advised the applicant of the termination of his employment in a meeting on April 2, 2013 and that the reason was that Securitas could not locate work at or near the applicant’s rate of pay.
29Mr. Sampogna explained that Securitas guards represented by the USW who are designated as “floaters” do not have scheduled hours of work. To get work, they must call in to dispatch to indicate their availability for open shifts. Floaters get work when they are offered open shifts.
30Mr. Sampogna stated that the applicant did not request any sort of accommodation. He acknowledged, however, that the applicant indicated on his application for employment that he could not work afternoons, but stated that Securitas could accommodate this shift restriction. In that regard, he noted that Securitas is a 24 hour operation and has a variety of shifts available and that afternoons, nights and weekends are some of the busiest times.
31In cross-examination, Mr. Sampogna conceded that he did not recall advising the applicant that he was a floater in the USW bargaining unit. He speculated that this information may have been mentioned in the Securitas Introductory Program (“SIP”) or by the scheduling manager. When asked who advised the applicant that he could get shifts through the USW, Mr. Sampogna stated that it would have been discussed with the union. Mr. Sampogna acknowledged that the applicant forwarded him an e-mail message in which he stated his desire for a consistent schedule, preferably during the day, in light of his responsibility for picking up his daughter at daycare.
32Andy Hiddink is the General Manager for the Securitas unit providing security services to General Motors locations in Ontario. Mr. Hiddink explained that Securitas’ General Motors unit is separate from Securitas Canada and reports directly to Pinkertons in the United States of America. Securitas Canada provides only human resources support to the General Motors unit.
33Mr. Hiddink’s evidence was that Keith Large, then an Area Vice-President for Securitas, referred the applicant to him. This was confirmed by an e-mail exchange between them on February 26, 2013. Mr. Hiddink was not aware of any disability or of any daycare commitments the applicant had before he filed this Application. In cross-examination, Mr. Hiddink stated that the applicant’s employment application form was not forwarded to him and that he did not receive the applicant’s resume. Mr. Hiddink confirmed that he received the applicant’s e-mail message to him of April 4, 2013. He stated that he did not respond to it, noting that there was no record of any response and that, at the time, he was in St. Catharines dealing with an important labour arbitration. Mr. Hiddink testified that, in any event, the General Motors unit in Oshawa did hire eight or nine people in 2013, but not until September.
Analysis and Decision
34The applicant has the onus of proving that the respondents violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent discriminated against by not accommodating her disability. Clear, convincing and cogent evidence is required. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
35The relevant sections of the Code are as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
10(1) In Part I and in this Part,
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device …
“family status” means the status of being in a parent and child relationship
Bonus and Suspension
36In his closing submissions, the applicant stated that he had been subject to harassment and discrimination on several occasions when employed by TSM, but TSM, specifically Mr. Goodspeed, did nothing about this, despite his entreaties. The applicant submitted that the suspension imposed on him and the bonus he received were unfair. They may have been. The applicant did not, however, present any evidence that would connect either of these actions to any disability or his family status. The applicant’s evidence was that he suffers from migraines and lower back issues, both of which arguably come within the definition of disability under the Code. The fact that the applicant identifies as having a disability or a family status and has suffered unfair treatment does not establish discrimination under the Code. Rather, the applicant must present evidence showing that one or both of these prohibited grounds was a factor, or caused, TSM’s impugned actions. There was simply no evidence of such a connection.
Absence due to Pneumonia
37The applicant contracted pneumonia in early March 2013. The applicant attended training while ill and was asked if he could “shut up” when he was coughing. One of his supervisors became angry with the applicant when he advised the supervisor that he would not return to work on the date the supervisor expected. The applicant clearly found these incidents, in relation to his illness, to be upsetting or vexatious. However, his illness, pneumonia, was transitory. He returned to work after an absence of a week and he suffered no ongoing issues as a result of his illness. The Tribunal has found that common, transitory illnesses, do not amount to a disability under the Code, even if the illness has the potential to become serious. See, Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960. In my view, a one-week bout of pneumonia, while undoubtedly unpleasant, does not come within the definition of disability under the Code. Consequently, I find that these incidents, however insensitive, cannot amount to harassment or discrimination because of disability.
38On March 21, 2013, the applicant sent an e-mail message to Mr. Goodspeed, alleging that he was being subjected to harassment related to disability in relation to his absence because of pneumonia and conflict about when he would return to work. The Tribunal’s jurisprudence establishes that employers are generally expected to take such allegations seriously and take reasonable measures to address a complaint, usually including conducting an investigation. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. Whether an employer’s reaction to complaint is reasonable depends, however, on the context in which it was made. In Khanna v. Multimatic Inc., 2010 HRTO 1899, the Tribunal found that the respondent’s failure to investigate an insensitive comment made within two weeks of a large scale shut down, resulting in the applicant’s dismissal, did not amount to a violation of the Code. Here, the applicant complained to Mr. Goodspeed only 10 days before his employment with TSM would end. Mr. Goodspeed’s evidence, which was not contradicted, was that he advised Ms. Kennedy to remind her of the need for a respectful workplace. In my view, Mr. Goodspeed acted reasonably and, in the circumstances of an employment relationship that was soon to end, his limited actions did not amount to a breach of the Code.
Securitas
39It is common ground that Securitas offered the applicant employment, but never assigned him to a position or gave him any work. The applicant did not establish that Securitas was aware that the applicant had a disability. The only evidence the applicant offered in this regard came from Mr. Saleem who overheard other TSM supervisors state that Securitas was aware of the applicant’s absenteeism and daycare issues. Mr. Saleem, however, had no knowledge that anyone from TSM had advised Securitas about any issues related to the applicant’s disabilities or family status. There was no other evidence indicating that Securitas was aware that the applicant had any disability-related or attendance issues regard. The evidence of Mr. Goodspeed and Mr. Sampogna was that there was no direct contact between TSM and Securitas. Their evidence was that the only information passed from TSM to Securitas, through Sanofi, was the information required under the ESA to effect the transfer of employees, which said nothing about the applicant’s medical conditions or attendance. Both Mr. Sampogna and Mr. Hiddink denied that they were given any information about any disability the applicant may have. This applicant provided no evidence contradicting either Mr. Goodspeed or Mr. Sampogna on this issue and their evidence was consistent that Securitas received very limited information about TSMs employees. In these circumstances, I accept this evidence and I find that the applicant has not established, on balance of probabilities, that Securitas was aware that applicant had any disability or absenteeism issues when it took over the security contract at Sanofi.
40Securitas was emphatic in its criticism of the applicant for failing to pursue opportunities to secure work at Securitas and that it was this failure – and not anything Securitas did or failed to do – that resulted in his unemployment. In particular, the respondent’s position was that the applicant did not accept work at Securitas’ General Motors unit in Oshawa and did not seek work as a “floater” in the USW bargaining unit. This was an especially aggressive position to take given the lack of evidence supporting it. There was no testimony or document before me that could in any way suggest that Securitas offered the applicant work at the General Motors site. The fact that work might have been available at General Motors was relayed to the applicant by e-mail and, far from rejecting this option, he signalled his interest and made inquiries about the work. Mr. Hiddink’s evidence further supports the fact that Securitas did not offer the applicant work at General Motors in March or April of 2013 because he testified that Securitas did not hire anyone at that location until September 2013. Mr. Hiddink never saw either the applicant’s resume or his application for employment.
41Mr. Sampogna testified about how a person designated as a “floater” in the USW bargaining unit goes about getting work. Mr. Sampogna did not recall that he ever informed the applicant that he was a “floater” and speculated that the applicant may have received this information during SIP training or from the scheduler. Whether the applicant was advised of being a floater and what that status entailed was not pursued with him in cross-examination. The applicant was very clear in his evidence that no one had advised him about how to get work at Securitas or that he had to call in for work. The applicant’s uncontradicted evidence was that the USW took the position that he was not a member of the union and that the USW would not assist him. I find that Securitas did not offer the applicant work at the General Motors location and that the applicant was not informed of the possibility of working as a “floater” in the USW bargaining unit. I find therefore that the applicant did not fail to pursue work opportunities with Securitas to mitigate the loss of his position with TSM. Consequently, the remaining issue is whether Securitas did not offer the applicant work because of restrictions related to his family status.
42The applicant advised Securitas that he did not wish to work afternoon shifts because he picks his daughter up at daycare. Contrary to Securitas’ submission, the applicant’s request put his family status in issue. If the restriction related to the applicant’s family status was a factor in Securitas’ decision not to offer him work, then the decision would amount to discrimination because of family status. I find, however, that the evidence does not support this inference. Mr. Sampogna’s evidence, which I accept, was that Securitas has many shifts available, since it is a 24 hour operation, including night and weekend shifts and could accommodate the applicant’s shift restriction. The applicant worked on the night shift for TSM and also worked on weekends. Accordingly, I find that the applicant’s desire to avoid afternoon shifts was not an impediment to Securitas hiring him and I find that the applicant’s family status was not a factor in the decision to terminate his employment. Rather, the limiting factor was his wage, $18.57 per hour, which all agreed was high for the security industry. Mr. Sampogna’s evidence was that Securitas had no positions at a comparable wage and could not employ him at Sanofi. Therefore, Securitas terminated the applicant’s employment. Securitas did not offer the applicant work at a lower rate. The applicant also did not inquire about the possibility of working at a lower wage for Securitas and did not follow up when Mr. Goodspeed advised him that the work available at TSM would be guard work at about $13 per hour. In these circumstances, I find that the applicant was not interested in working at a lower wage.
43Regarding the General Motors location, I also note that Mr. Hiddink’s evidence was that he had no knowledge of any shift or family status related issues regarding the applicant, as he did not receive the applicant’s e-mail messages regarding shift preferences. Again, Mr. Hiddink also did not receive the applicant’s resume or employment application.
44Consequently, I find that the applicant’s family status was not a factor in Securitas’ decision to terminate the applicant’s employment.
45The Application is dismissed.
Dated at Toronto, this 21st day of April, 2015.
“signed by”
Douglas Sanderson
Vice-chair