Was it discrimination? Employer points to shortage of work, worker's periods of unavailability
A worker’s complaint that her age or gender played a role in her failure to gain seniority or apprentice hours, as well as the termination of her employment, has been dismissed by the Ontario Human Rights Tribunal.
The worker, 55, was trained as a heavy equipment operator and worked in the Alberta oil fields from 2013 to 2015. She relocated to Ontario due to a shortage of work in Alberta, entering an apprenticeship program for operating engineers in 2016. Over the next two years, she took on various roles as an apprentice in pursuit of the 6,000 hours required to successfully complete the apprenticeship program.
In October 2018, the union of which she was a member dispatched her to work at Sarens Canada, a national crane and equipment rental company for the construction industry, in its southern Ontario operations as a first-year mobile crane operator. The worker was one of eight apprentices dispatched to Sarens and her first scheduled shift was Nov. 15.
The collective agreement with Sarens provided for laid-off apprentices to be recalled at any time if they were employed for more than 90 working dates. It also stipulated that she would be paid 50 per cent of the licensed journeyman base rate for her first 2,000 hours worked and would become a junior hoisting engineer upon reaching 6,000 hours worked, provided she had a certificate of qualification.
Apprentices who reached 120 working days within one year would be defined as a regular employee with their seniority dating back to their start date and would be given priority for work over apprentices without seniority.
Apprentice hours
The worker usually received information on her scheduled shifts through texts from Saren’s branch manager, as apprentices worked on a part-time, on-call basis. She received steady, full-time hours from Nov. 15 to Dec. 23, when Sarens shut down for the holiday season.
When the holidays were over, the worker was unable to work for health reasons and wasn’t available until Jan.13, 2019. She was offered 20 apprentice hours in January, but then none until March 3, when she worked full-time hours for nearly four weeks until March 27. The branch manager sometimes texted her to say that there was low demand for apprentice crane operators when the worker complained that she wasn’t getting enough hours.
The worker enrolled in a six-week course and wasn’t available from March 28 to May 10. After that, Sarens didn’t offer her any apprentice hours. The worker inquired about a potential layoff for the purpose of filing for unemployment insurance, and Sarens eventually terminated her employment on June 24 for lack of work.
The worker filed a human rights complaint alleging that Sarens failed or refused to provide her with sufficient apprentice hours, preventing her from achieving the required 6,000 hours for certification and the 120 working days of seniority, at least partly because of her age – 49 at the time of dismissal - and gender. She said that the majority of apprentices were male and younger than her. She also claimed that her employment was terminated as a reprisal for complaining.
Sarens denied the allegations, stating that apprentice hours were assigned based on several factors including job availability, seniority, availability for work, and performance issues.
Discrimination test
The tribunal noted the three-part test for prima facie discrimination established by the Supreme Court of Canada – the worker had a protected characteristic under the Ontario Human Rights Code, she suffered a disadvantage or adverse impact, and the protected characteristic was a factor in the disadvantage or adverse impact.
The tribunal also noted that the worker’s availability for work was limited due to illness and the six-week training course, which impacted her total hours worked. Saren’s records showed that the average number of hours worked by the eight apprentices sent to Sarens was 406 hours, while the worker worked 375 hours – fourth out of the eight and the equivalent of more than nine weeks of full-time employment.
The worker’s overall hours were consistent with other apprentices with no significant differential treatment, said the tribunal, adding that the branch manager regularly communicated that there was a low demand for work.
It was helpful to Sarens that there was a union involved that was responsible for a lot of the scheduling, with a collective agreement that set out specific rules about seniority and priority, according to David Fanjoy, an employment and labour lawyer at McMillan LLP in Toronto.
“That was what really helped Sarens defend the claim and clearly show that it wasn’t related to either sex or age – it was following the collective agreement,” he says. “And the evidence was pretty clear that the worker wasn't able to get seniority because of her lack of hours and her own scheduling conflicts - she didn't really have much evidence that she was treated differently than the other seven apprentices.”
Performance issues
The tribunal also accepted evidence from Saren’s witnesses regarding concerns over the worker’s job performance. Two crane operators, including one who directly supervised the worker, testified that she exhibited ongoing performance issues related to safety and skill development. One supervisor characterized her as a “below average apprentice” and expressed concerns about working with her onsite.
Given this evidence and considering that Sarens had a general practice of prioritizing work assignments for apprentices without performance concerns, gender or age wasn’t a factor in scheduling the worker’s hours, the tribunal said, adding that its role wasn’t to assess fairness or accuracy of performance reviews.
The tribunal also found no evidence that the worker’s termination was an act of retaliation for her complaints about work hours. Instead, the decision to terminate her employment was based on a shortage of work, a fact supported by text message exchanges between the worker and the branch manager, said the tribunal.
“The key piece of evidence that there was just a shortage of work was the text message conversation where the worker almost asked to be placed on layoff or get a record of employment so that she could get employment insurance,” says Fanjoy. “[Sarens] had such good evidence that the lack of hours was a systemic issue – it wasn’t limiting her hours, there was a lack of hours across the board.”
The tribunal noted that both the worker and Sarens’ witnesses were credible, but it appeared that the worker “had very high and unrealistic expectations with respect to her goal of becoming a hoisting engineer” based on her limited success in obtaining apprentice hours before joining Sarens and having to relocate from Alberta due to a lack of work.
“The tribunal sympathized with the worker’s disappointment over her belief that she was going to be making $100,000 a year and never be subject to a layoff, which didn’t seem to be grounded in reality,” says Fanjoy. “Meanwhile, Sarens put forward witnesses that that were clearly well prepared to show what that reality was.”
No discrimination or reprisal
The tribunal determined that the worker didn’t meet the burden of proof required to establish discrimination or reprisal under the code and Sarens was able to establish sufficient non-discriminatory reasons for the worker’s scheduling and termination. The worker’s complaint was dismissed.
This case highlights the importance of having strong evidence and well-prepared witnesses for discrimination claims that are heavily focused on the inference of discrimination, says Fanjoy.
“One of the biggest challenges employers face in defending these claims is how slow, unfortunately, the tribunal moves, but the fact that [Sarens] had evidence from what would have been five years earlier, and they preserved it properly in accordance with their obligations, it was a huge advantage,” he says.
“It came down to the evidence, and there were probably not too many complicated legal arguments because [Sarens] was able to clearly point to that evidence and use it to rebut the allegations of discrimination and any inference.”
“There’s a twofold element to this type of claim - it's proving that there wasn't discrimination and then also getting over the tests of whether there could be an inference of discrimination,” adds Fanjoy. “Given the high bar for proof of discrimination and reprisal under the code, [Sarens] did a really good job with their evidence and witness statements in defending the claim.”
