Khiamal v. Greyhound Canada Transportation Corporation

Khiamal v. Greyhound Canada Transportation Corporation
Collection
Canadian Human Rights Tribunal
Date
2007-08-09
Neutral citation
2007 CHRT 34
File number(s)
T1099/8005
Decision-maker(s)
Pannu, Alex G.
Decision type
Ruling
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
SURESH KHIAMAL
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
GREYHOUND CANADA TRANSPORTATION CORPORATION
Respondent
REASONS FOR DECISION
2007 CHRT 34 2007/08/09
MEMBER: Kerry-Lynne D. Findlay, Q.C.
I. INTRODUCTION
II. BACKGROUND FACTS
III. OVERVIEW OF THE COMPLAINANT'S ALLEGATIONS
IV. THE LAW
A. Prohibited Grounds of Discrimination
B. The Complainant's Burden and the Respondent's Burden
C. Section 7
D. Section 14
E. Section 10
F. Evidentiary Assessment
V. ANALYSIS OF THE COMPLAINANT'S ALLEGATIONS
A. ALLEGATION NO. 1 - THE NIGHT SHIFT MAINTENANCE FOREMAN JOB POSTING OF JULY 2002
B. ALLEGATION NO. 2 - HISTORIC AND ONGOING HARASSMENT BY CO-WORKERS AND MANAGERS
C. ALLEGATION NO. 3 - DENIAL OF TRAINING AND COURSES
VI. DECISION
I. INTRODUCTION [1] On August 15, 2003, Suresh Khiamal (the Complainant) filed a complaint under Sections 7, 10, and 14 of the Canadian Human Rights Act (CHRA) against Greyhound Canada Transportation Corporation (the Respondent). The Complainant alleges that the Respondent has engaged in discriminatory practices on the grounds of race, national or ethnic origin, colour, age and disability in a matter related to employment.
[2] Both the Complainant and the Respondent were represented by legal counsel. The Canadian Human Rights Commission (the Commission) was not present.
II. BACKGROUND FACTS [3] The Complainant, born December 4, 1948, is 58 years old. He is a Canadian citizen of East Indian origin. He immigrated to Canada in 1979 from South Africa. He worked as a licensed mechanic in South Africa from 1970 to 1979, and commenced work with the Respondent on February 20, 1980 as a second class mechanic. Within a few months, the Complainant obtained his license in Canada and was promoted to first class mechanic. Throughout the hearing, his position was referred to as one of a heavy duty mechanic.
[4] The facts giving rise to the complaint took place at the Respondent's Edmonton, Alberta Garage (the Edmonton Garage). There are two areas at the Edmonton Garage where heavy duty mechanics perform their employment duties. The first is the Service area, where Greyhound buses are serviced in terms of being inspected for roadworthiness, washed, gassed up, and generally maintained. The second is the Hoist area, where buses are mechanically overhauled and literally put up on a hoist for more substantive mechanical repairs such as brake repair, wheel alignment and the like. Heavy duty mechanic work in the Hoist area is more physically demanding.
[5] There have been many management changes in personnel and style in the time the Complainant has worked for the Respondent. At times, there has been more than one Foreman, and at times there have been none. The role of Supervisor, and the employees who have performed as supervisor, have also changed over time.
[6] Throughout his employment with the Respondent from 1980 forward, the Complainant was appointed to the Lead Hand position often, and for long continuous periods. His pay stubs show that when he performed Lead Hand duties, he was paid an extra $1.00 per hour. Although he worked in both the Service area and the Hoist area, he has primarily worked in the Service area particularly in recent years.
[7] The Lead Hand's duties are similar to the Foreman's in that the Lead Hand supervises other mechanics to ensure that the work that needs to get done is completed, allocates resources and assigns mechanics to certain duties, corresponds with the dispatcher, uses the MCMS computer maintenance system, and handles the responsibility for the buses being ready for and keeping to their schedules. The primary distinguishing differences between the two positions is that a Lead Hand does not discipline, nor does payroll, nor deals with supervisors in a greater managerial sense. Leadership skills are essential.
[8] The Edmonton Garage is a unionized environment. The Complainant is a member of the Amalgamated Transit Union (the Union), and held the position of shop steward for many years. During his term of employment, the Complainant filed many grievances, some of his own and several for other workers, and was thereby familiar with the grievance process. A collective agreement, as amended from time to time, has been in place throughout the subject period.
[9] At the time of the filing of this complaint, the Complainant was the most senior mechanic at the Edmonton Garage. Seniority is a factor in holiday time choices, and may be a factor in whether a person is given training and courses by the Respondent or through the Union, and is a factor but not determinative in obtaining a promotion from heavy duty mechanic to a foreman position.
[10] When a mechanic is promoted to the position of Foreman, he loses his Union membership, and is not allowed to touch mechanic's tools except in the case of a real emergency. Under the collective agreement in place at the time of the complaint, a Foreman could return to his mechanic's duties with his seniority intact if he was laid off from that position, but not if he was terminated by the Respondent.
III. OVERVIEW OF THE COMPLAINANT'S ALLEGATIONS [11] The complainant's allegations can be organized as follows:
Allegation #1 deals with the complainant's application for the position of Night Shift Maintenance Foreman, and the respondent's decision not to hire him for this position. The complainant alleges that the respondent's decision was tainted by discrimination on the ground of disability, age, race, colour, or national or ethnic origin. Allegation #2 deals with a series of incidents, or aspects of his workplace experience, that in the Complainant's view constitute harassment on the ground of race. Allegation #3 focuses on one of the above incidents (i.e. the respondent's refusal to approve training and courses for the complainant), and asserts that this refusal constituted adverse differentiation and the denial of employment opportunities, based on race.
IV. THE LAW A. Prohibited Grounds of Discrimination [12] Section 3 of the CHRA designates race, national or ethnic origin, colour, age and disability as prohibited grounds of discrimination.
B. The Complainant's Burden and the Respondent's Burden [13] The Complainant has the initial burden of establishing a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the Complainant's favour in the absence of an answer from the Respondent. Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (O'Malley)
[14] The Federal Court of Appeal has established in Lincoln v. Bay Ferries Ltd., 2004 FCA 204, that the Tribunal must not take into account the Respondent's answer in determining whether a prima facie case has been made out.
[15] In the event that the complainant establishes a prima facie case of discrimination, it is incumbent upon the respondent to provide a reasonable explanation for the otherwise discriminatory practice that is not a mere pretext for discrimination. (Lincoln at para 23).
C. Section 7 [16] Under s. 7, it is a discriminatory practice, directly or indirectly, to refuse to employ any individual (s. 7(a)), or in the course of employment, to differentiate adversely in relation to an employee (s. 7(b)), on the basis of a prohibited ground of discrimination.
[17] According to the Ontario Board of Inquiry's decision in Shakes v. Rex Pak Ltd. (1982) 3 C.H.R.R. D/1001, where it is alleged that the respondent's refusal to employ the complainant was discriminatory, a prima facie case of discrimination can be made out by presenting evidence that:
the Complainant was qualified for the particular employment; the Complainant was not hired; and someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.
[18] That said, the Shakes approach is not a rule of law, but merely an illustration of the principle established in O'Malley. Shakes should not be applied in a rigid or arbitrary fashion in every hiring case. (Lincoln, para. 18; C.H.R.C. v. Canada (A.G.) 2005 FCA 154, paras. 25-26).
D. Section 14 [19] Under s. 14 of the CHRA, it is a discriminatory practice, in matters related to employment, to harass an individual on a prohibited ground of discrimination.
[20] Where an allegation of harassment is made under s. 14, the complainant must demonstrate that the impugned conduct:
related to a prohibited ground of discrimination; was unwelcome; and was persistent or serious enough to create a negative work environment.
(See Morin v. A.G. Canada, 2005 CHRT 41, para. 246)
E. Section 10 [21] Section 10 of the CHRA is engaged where an employer pursues a practice that tends to deprive an individual of an employment opportunity on a prohibited ground of discrimination.
F. Evidentiary Assessment [22] Discriminatory considerations need not be the sole reason for the actions at issue in order for the complaint to be substantiated. It is sufficient that the discrimination be one of the factors in the employer's decision (Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 at para. 7 (F.C.A.)).
[23] An inference of discrimination may be drawn from circumstantial evidence, provided that the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses. (See Chopra v. Canada (Health and Welfare) (2001) 40 C.H.R.R. D/396 (CHRT) at para. 286.)
[24] Finally, in Kasongo v. Farm Credit Canada, 2005 CHRT 24, at paragraphs 29 and 30, the Tribunal underscored the need for an objective approach; adjudicators should be cautious in relying on perceptions of the parties that may be distorted because of personality characteristics, such as a high degree of sensitivity or defensiveness.
V. ANALYSIS OF THE COMPLAINANT'S ALLEGATIONS A. ALLEGATION NO. 1 - THE NIGHT SHIFT MAINTENANCE FOREMAN JOB POSTING OF JULY 2002 [25] The complainant alleged that:
his disability; his age; and his race, colour or national or ethnic origin played a role in the respondent's refusal to employ him for the above-noted position.
[26] To facilitate the analysis, each of the above grounds will be examined in turn, in order to determine whether the complainant has made out a prima facie case.
[27] Where a prima facie case has been established, consideration will be given to the respondent's explanation.
(a) Refusal to Employ Based on Disability - The Prima Facie Case [28] The Complainant testified that he has diabetes. His evidence is that he has neuropathy in his feet. However, no medical evidence was led at the hearing as to the severity of his diabetes and its impact on his health, nor the timing of his first diagnosis and consequent medical treatment.
[29] The Complainant testified that he believes Steven Watson and everyone at his workplace knows he has diabetes because they would have seen him taking insulin. However, he gave no specific evidence of when or where the two supervisors who interviewed him for the Foreman position (Chuck Seeley and Steven Watson) did, in fact, see him taking insulin prior to or at the time of the July 2002 job posting and interview process. He suggested they might have seen him in the lunch room or in the men's washroom. However, the evidence indicated that Mr. Seeley was in a wheel chair and rarely took his lunch in the lunch room, or used the same washroom.
[30] The Complainant further testified that he did not raise the issue of his diabetes during the interview process for the Foreman's position, nor in either of the brief conversations he had with Steven Watson about the job on the work floor. In other words, the Complainant did not self-identify as having a disability at the time period relevant to this complaint, nor did he ask the Respondent to accommodate him in this regard.
[31] The Complainant's evidence on this point was evasive, weak, and non-specific. Based on the foregoing, I conclude that he has failed to establish on a prima facie basis that his disability played a role in the respondent's decision not to hire him for the Night Shift Maintenance Foreman position in July 2002.
(b) Refusal to Employ Based on Age-The Prima Facie Case [32] At the hearing, the Complainant testified that he was born on December 4, 1948, and therefore was 53 years of age at the time of the July 2002 posting. Mr. Kenneth Mullan (the successful candidate) testified that he was born on January 19, 1959, and therefore was 43 years of age at the time of the July 2002 posting. Mr. Mullan's birth certificate was filed in the proceedings and corroborated his testimony as to his age.
[33] In the Complainant's letter of application, he did not mention his age or birth date, nor did he self-identify at the interview process or at any time relevant to this complaint as wanting to be accommodated for this reason.
[34] There was no evidence led that age was a relevant factor to the position of Maintenance Foreman at the Edmonton Garage. At age 53, the Complainant was still many years away from the normal age of retirement. There was no attempt by the Complainant to bring his age to the attention of the Respondent at the time of the job interview or other times relevant to this complaint. There was no evidence that age was a subject of discussion in either the Complainant's or Mr. Mullan's job interviews, nor that the age difference between the two men was apparent at the time.
[35] I find that the Complainant has not made out a prima facie case that his age played a role in the respondent's decision not to hire him.
(c.1) Refusal to Employ Based on Race, Colour, National or Ethnic Origin - The Prima Facie Case
[36] The Complainant testified that this was the first time that he had applied for a promotion to Foreman since arriving at the Edmonton Garage in 1980. He testified that this was because he did not feel that the Respondent was ready for a coloured foreman as yet, and that he was physically fit, could do the heavy duty mechanic's job easily, and he earned more money than a foreman because he worked overtime.
[37] When asked what had changed to prompt him to apply in 2002, the Complainant responded, my health, my age, and said that he was unaware of any employment equity initiatives at the Edmonton Garage. He also testified that he would take the position today if it was offered to him, and that at the time of the hearing there was an open position for one foreman.
[38] The Complainant testified that when he applied for the position, he first asked Steven Watson questions about the wage, the benefits package, and everything else but that Mr. Watson did not know anything about it. He decided to apply anyway, as he felt that it would be much lighter work for him due to him getting older and his health not being up to par.
[39] A copy of the written application submitted by the Complainant was introduced into evidence, and the contents read out and confirmed by the Complainant in part as:
Equipped with 22 years of experience as a mechanic/lead hand I am applying for the position of maintenance foreman.
[40] In fact, at the time, the Complainant had 32 years of experience because he had 10 years' experience in South Africa prior to being hired by the Respondent.
[41] The written application also stated:
I have reviewed the qualifications needed for the position and have the qualifications for all items listed on the job posting. If any further information is needed, I will furnish it upon your request.
[42] The Complainant did not submit any further resume or proof of qualifications, nor was he asked by the interviewing supervisors, Chuck Seeley or Steven Watson, to do so.
[43] When asked about the lack of information he provided, the Complainant testified that the supervisors knew everything about him because he had been at the Edmonton Garage for 22 years, and that Mr. Watson knew all about his certifications.
[44] In my view, it would be surprising if Mr. Watson had full recall of the certifications the Complainant had shown him in 1989, thirteen years prior to the interview. Having said that, I find that Mr. Watson would have been fully conversant with the Complainant's job performance over many years as a heavy duty mechanic in both the Service and Hoist Areas, his relationship with co-workers and his ability as a Lead Hand.
[45] The Complainant also testified that his interview only took about three minutes, and that although Mr. Seeley had lined paper and pen in front of him (the supervisors and the Complainant were across the desk from each other), he took no interview notes in his presence.
[46] The Complainant called Mr. Mullan as a witness. In Mr. Mullan's testimony he stated that his interview was also not lengthy, less than half an hour. He recalled being asked about how he would conduct himself as a manager, but that it was an informal interview because he knew the supervisors having been working there for 5 years at the time. He vaguely recalled Chuck Seeley taking notes during the interview, but little was asked of him about his work experience. Like the Complainant, he testified that he felt that the interviewing supervisors knew him well enough that his expertise was not in question and was not the subject of discussion.
[47] The Complainant is of East Indian ethnicity. Mr. Mullan is white.
[48] As was mentioned above, under the Shakes approach, a prima facie case may be made out by demonstrating that the Complainant was qualified for the particular employment; that the Complainant was not hired; and that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.
[49] In that the Complainant was not hired in this case, and in that Mr. Kenneth Mullan, the successful candidate, lacks the distinguishing feature which is the gravamen of this complaint, the issue is whether the Complainant was qualified for the Foreman's position, and whether Mr. Mullan was no better qualified than the Complainant.
[50] Mr. Mullan testified that he was a union shop steward at the time of the application for the position, but had no Lead Hand experience in the employ of the Respondent. He testified that he commenced work for the Respondent in 1997, and worked there as a Class A1 mechanic only until his promotion to Foreman in August 2002.
[51] His experience as a licensed mechanic spanned only 5 years at the time of the posting as compared with the Complainant's thirty-two years. As a foreman, all were agreed that a person no longer does any mechanic duties. However, I accept evidence given by the Complainant that knowledge of mechanic duties is essential to doing the Foreman's job well as you are dealing with mechanics, drivers and dispatch all the time who need supervision, guidance, and assistance.
[52] Cooperation with co-workers and management was also, by all accounts, an important part of the Foreman's job. Numerous witnesses said that the Complainant worked well with his co-workers. He in fact was very friendly with some, and maintained appropriate business relations with others. With management, the only reported tensions were with his supervisor, Steven Watson. Gary Peach, who is now retired, but at the relevant time was the Dispatcher located in downtown Edmonton, dealt with the Complainant on the telephone on a daily basis as Lead Hand. He was very complimentary of the Complainant's cooperation, knowledge and helpfulness on an ongoing daily basis over years of interaction.
[53] Nizar Dalla (an area maintenance manager out of Calgary), Richard Baker (at one time a Foreman at the Edmonton Garage), Steven Pejkovic, Gary Peach, and Jace Loewen all testified that the Complainant was highly skilled and conscientious at his job, interacted well with co-workers, and had leadership qualities. On the other hand, Richard Baker, Gary Peach, and Steven Pejkovic testified that Mr. Mullan was not as knowledgeable as the Complainant, nor as cooperative, nor as competent.
[54] Mr. Mullan had commenced work for the Respondent in 1997, and therefore had 17 years less seniority at the Edmonton Garage than did the Complainant. Mr. Mullan did have previous relevant work experience. At the time of the job competition, Mr. Mullan had been the Union Shop Steward for approximately 1½ years. The Complainant had also served as Union Shop Steward for several years previously.
[55] Based on the above, I find that there is sufficient evidence that the Complainant was qualified for the position of Foreman, and that Mr. Mullan was less qualified or no better qualified than the Complainant.
Improper Use of Discipline Record
[56] The Complainant also adduced evidence that, despite his equal or superior qualifications, his candidacy for the job was hampered by improper consideration of his past disciplinary record. In this regard, he testified about a conflict in the workplace that he feels was improperly considered by the respondent in determining whether he had the necessary interpersonal skills to be Foreman.
[57] On March 11, 1992, (ten years prior to the disputed Foreman job competition) an argument took place at the workplace between the Complainant and his supervisor Steven Watson. According to the complainant, there were words between the two of them, but there was no physical contact. At the time of the argument, the complainant had been using an exacto knife to scrape an inspection sticker off a bus window.
[58] Mr. Watson filed a formal workplace complaint against the Complainant arising out of the argument. The Complainant testified that, in the workplace complaint, Mr. Watson falsely accused the Complainant of threatening him, by poking Mr. Watson with his finger during the argument and having knives in his possession that Mr. Watson found intimidating.
[59] There was evidence that the incident was held against the Complainant ten years later during the Foreman hiring process, and that it was viewed as an example of the Complainant not getting along with his superiors in management. The evidence suggested that it was a factor in the respondent's decision not to hire the complainant, even though it should have been ignored because it had occurred so far in the past. It would seem to be the complainant's assertion that because of his race, the respondent dug deeply into his employment history to find a reason not to hire him. In this way, he could be passed over for the job despite his superior qualifications.
Conclusion
[60] I conclude, based on all of the above, that the Complainant has established a prima facie case of discrimination on the ground of race with respect to the 2002 Foreman job competition.
(c.2) Refusal to Employ Based on Race, Colour, National or Ethnic Origin - The Respondent's Explanation
[61] The Respondent has presented a number of explanations for why Mr. Kenneth Mullan was offered the position of Foreman in the July 2002 competition:
Mr. Mullan was, despite the complainant's evidence, the best candidate for the job; Hiring Mr. Mullan for the Foreman position allowed the Respondent to accommodate his physical disability; The decision to hire Mr. Mullan was made by individuals in the Calgary office who presumably had no personal knowledge of the candidates; To the extent that the Complainant was treated unfairly in the job application process, this was due to personal animosity between the Complainant and Steve Watson, that had nothing to do with discrimination.
[62] The Respondent also presented explanatory evidence in regard to the Complainant's allegation that the 1992 workplace conflict was used against him in the hiring process.
[63] All of these explanations shall be considered in turn.
Mr. Mullan was, despite the complainant's evidence, the best candidate for the job;
[64] In comparing the work experience of Mr. Mullan to that of the Complainant, the Respondent notes that the latter only submitted a short letter of application, with no detail given as to qualifications or experience, and stating that he had only 12 years of experience with the Respondent as a Lead Hand. Again, however, the evidence tendered at the hearing did not support this statement, as the Complainant had been appointed Lead Hand throughout the 22 years he worked there, and I have found that his experience as a Lead Hand in the employ of the Respondent exceeded 12 years.
[65] The respondent sought to challenge the Complainant's suggestion that he was not accorded a fair interview. A piece of paper purporting to be questions asked of the Complainant during the interview process was introduced into evidence, and identified by Mr. Chuck Seeley as having been handwritten by him during the interview of the Complainant. It was similar in terms of the questions asked to other documents introduced purporting to be the interview notes of other interviews conducted of other candidates for the subject job posting and other Foreman job postings. Complainant's counsel challenged the authorship of the document, and challenged when the document was created.
[66] Ultimately, given the evidence as to both the Complainant's interview and Mr. Mullan's interview, I do not see anything turning on this point. I find that the piece of paper purporting to be a record of the Complainant's interview, was in fact authored by Chuck Seeley. It is possible that the notes were taken during the interview; however it is just as possible that they were written up afterward. Thus the paper does not serve as conclusive evidence of equal treatment during the interview process.
[67] The Respondent also tried to challenge the Complainant's qualifications relative to Mr. Mullan by impugning his computer skills. Several witnesses testified that about one year previous, the Respondent had introduced a new computer system called MCMS for maintenance purposes at the Edmonton Garage. All the mechanics had to learn to use it to complete orders, pull up their time, complete electronic time cards on it, and access some maintenance assistance manuals. It was necessary to use this system as both a Lead Hand and as a Foreman. Mr. Mullan testified that this was discussed during his interview, that the supervisors indicated that they felt he knew the system as well as anyone else working with the new program, and that if he had any difficulties they could help him.
[68] In Mr. Watson's testimony, he says he questioned the Complainant's competency with the MCMS system at the time, and felt he was slower and less capable with MCMS than some others. The Complainant had testified, however, that he was fully capable on the system as he used it daily as a Lead Hand. I accept the evidence of the Complainant on this issue, that he had sufficient competency on the MCMS system for the job of Foreman and his abilities at least equalled those of Mr. Mullan.
[69] Mr. Watson also testified as to Mr. Mullan's work experience. He acknowledged that Mr. Mullan was a Class A1 mechanic at the Edmonton Garage, and never a Lead Hand. He further testified that Mr. Mullan had been a heavy duty apprentice mechanic for his immediately previous employer, a general helper apprentice mechanic before that, and a service person at Edmonton Transit before that. In brief, the respondent was unable to demonstrate that Mr. Mullan was more qualified than the complainant, so this explanation must be rejected.
Hiring Mr. Mullan for the Foreman position allowed the Respondent to accommodate his physical disability
[70] The respondent also put forward the explanation that under the Employment Equity Act, it had an obligation to accommodate disabled workers. Placing Mr. Mullan, who suffered from arthritis, in the less physically demanding job of Foreman served to accommodate his disability.
[71] At the time of the job posting, Ken Mullan was absent from work on disability due to his arthritic condition. His arthritis was evident, as he had been off work several times for several months at a time. The Respondent was obviously aware of this. However, in Mr. Mullan's testimony at the hearing, he was adamant that his arthritic condition did not prevent him from doing full heavy duty mechanic duties, and specifically said that he did not self-identify as disabled, nor ask to be accommodated for the Foreman job posting. He testified that he really wanted the job, and that he emphasized his enthusiasm in the interview, because he wanted to advance himself.
[72] Mr. Mullan further testified that when he was terminated from the Respondent's employ after having been a foreman for about one and one-half years, he wanted to return to his heavy duty mechanic position. He stated that at that time, he felt fully capable of performing as a heavy duty mechanic, but he was not given the chance to go back `on the floor'. He has since changed his occupation on doctor's advice, but at the relevant time period, this was his mind set and his capability as he judged it.
[73] Mr. Mullan's evidence on these points was not controverted by either of the interviewing supervisors, Steven Watson or Chuck Seeley. No one from the Respondent's Calgary office gave evidence.
[74] As a result, I find this alternate explanation of the Respondent's-that it hired Mr. Mullan as Foreman in an effort to accommodate his disability-to be pretextual.
The decision to hire Mr. Mullan was made by individuals in the Calgary office who presumably had no personal knowledge of the candidates
[75] The respondent also tried to portray its actions in a non-discriminatory light by asserting that the ultimate decision to hire Mr. Mullan over the Complainant was made by the Calgary office, and not by anyone at the Edmonton Garage. However, I find that the actual decision was really made by Steven Watson with Chuck Seeley's concurrence. The Respondent chose to only have Steven Watson testify as its representative, and no one from the Calgary office appeared to give evidence. It is clear from Mr. Seeley's and Mr. Watson's evidence taken together that they had made up their minds to offer the position to Mr. Mullan before calling the Calgary office, and that they presented their interview findings in such a way as to effectively direct that Mr. Mullan be hired.
[76] It is my view that this is not a satisfactory or reasonable explanation.
To the extent that the Complainant was treated unfairly in the job application process, this was due to personal animosity between the Complainant and Steve Watson, that had nothing to do with discrimination.
[77] The Respondent states that there is a history of conflict between Supervisor Steven Watson and the Complainant. It characterizes this as the Complainant having complained to other employees about Mr. Watson and his abilities as a manager, causing problems between the two men. The Respondent stresses that the conflict between Mr. Watson and the Complainant is not based on a prohibited ground, but rather is based on personal differences.
[78] The evidence of both Mr. Watson and the Complainant is that, at one time, they were close personal friends outside of work as well as at the workplace. Although Mr. Watson commenced at the Edmonton Garage in 1973, and the Complainant commenced in 1980, Mr. Watson worked his way up through the ranks. The Complainant arrived at the Edmonton Garage as a fully licensed mechanic. Mr. Watson was apprenticed to the Complainant and worked under him. The Complainant took his own time to assist Mr. Watson to gain his mechanic's certification. They worked on cars together at a friend's farm after work often, and went out to eat together. Their personal relationship soured, however, after Mr. Watson became the Complainant's superior.
[79] Given their previous close personal relationship, the preponderance of evidence suggests that the tensions that arose between them were non-discriminatory in nature.
[80] I find that the personal conflict between the Complainant and Steven Watson improperly influenced Mr. Watson's handling of the hiring process for Night Foreman in the Summer of 2002. Mr. Watson's and Mr. Seeley's interview of the Complainant was very brief. Mr. Watson asked the questions, and he did not explore the Complainant's qualifications adequately, nor ask him for further information that the Complainant offered to give. Mr. Watson exaggerated the qualifications of Mr. Mullan when he presented the interview outcomes to the Calgary decision-makers, with Mr. Seeley going along.
[81] Similarly, I find that Mr. Watson sought to undermine the Complainant's candidacy by using the 1992 workplace conflict against him. There was evidence from Steven Watson that any employee had the right to look at his own personnel records in Mr. Watson's office upon request. Upon a review of his personnel records, any employee has the right to destroy or cause to be destroyed any disciplinary or similar records after a five year time period. Accordingly, while it is true the workplace conflict occurred, it occurred ten years prior to the Complainant's application for promotion to Foreman; it was therefore remote in time and irrelevant to the job competition. Despite the foregoing, there was evidence it was an incident that Steven Watson continued to hold against the Complainant personally. In the context of their soured friendship, this is more than likely.
[82] The evidence supports the conclusion that Mr. Watson did not want to be dealing with the Complainant on a more frequent basis as supervisor to Foreman, due to the personal conflicts between the two men in the past and the consequent suspicion and animosity between them. The Complainant, for his part, felt victimized by supervisor Steven Watson's animus toward him, which would appear on the evidence to be justified.
[83] However, there has to be a nexus between the conduct under scrutiny and a prohibited ground of discrimination. The nexus can be inferred through circumstantial evidence, but the inference of discrimination must be more probable than other possible inferences. Failing that, there may be other workplace, union, and civil remedies open to the Complainant, but the standard needed to establish a human rights complaint will not have been met.
[84] Liability under the CHRA is not engaged where the complainant's negative workplace experiences are due solely to a personality conflict with a supervisor. (See Hill v. Air Canada (2003), 45 C.H.R.R. D/456 (C.H.R.T.), paras. 132, 164-165, 169 and the cases cited therein.)
[85] In this case, I find that the prima facie discrimination in the hiring process is satisfactorily explained by the personal animosity existing between the Complainant and Mr. Watson. This animosity is based on the interactions and respective career paths of the two men, and has nothing to do with the complainant's race, colour, or national or ethnic origin-or for that matter his age or disability. The inference of personal animus based on workplace history is more probable than any possible inference of discrimination on a prohibited ground.
[86] Since the respondent has provided a reasonable explanation, Allegation No. 1 is dismissed.
B. ALLEGATION NO. 2 - HISTORIC AND ONGOING HARASSMENT BY CO-WORKERS AND MANAGERS
[87] The Complainant has presented evidence of eight incidents or aspects of his workplace experience which he alleges form a pattern of harassment based on race, within the meaning of s. 14 of the CHRA. These eight incidents or aspects will be examined in turn.
(i) Workplace harassment by then foreman, Bruce Morrison, commencing 1984 [88] The Complainant gave evidence regarding workplace harassment by then foreman, Bruce Morrison, against him commencing in or about 1984 and continuing over several years. The Complainant made a formal human rights complaint against the Respondent in 1990 also based on age, race and disability, which was investigated and ultimately dismissed by the Canadian Human Rights Commission in 1994. The Complainant testified that Mr. Morrison was responsible for demoting him from Lead Hand, that he made racially based remarks behind his back, and denied him courses that white mechanics got.
[89] It is the Complainant's position that although his 1990 CHRA complaint was dismissed, it should still be looked upon in this hearing as evidence of discrimination dating back nineteen years previous to the filing of the present complaint. On this issue, I agree with the Respondent that this matter is too remote in time from the present matter to be properly adduced as a factor in the present inquiry. Therefore I cannot give it consideration as a single act of harassment, nor as part of a pattern of harassment.
(ii) False accusations of making threats against Mr. Watson on March 11, 1992 [90] As was mentioned earlier, on March 11, 1992, an argument took place at the workplace between the Complainant and Steven Watson. According to Mr. Watson, during this exchange the Complainant threatened him by angrily poking him with two fingers, while holding an exacto knife in the same hand. Steven Watson ultimately filed a formal complaint against the Complainant, which he said he agonized over somewhat as they had been good friends at one time. He states that he was influenced in his decision by others superior to him, who convinced him that he had to take these formal steps to promote respect in the workplace for him and his position. The formal complaint at the time stated that the Complainant had small knives in his possession that Mr. Watson found intimidating. However, during the hearing Mr. Watson confirmed that the Complainant had an exacto knife in his hand that he had been using for work, not small knives.
[91] With respect to this incident, two documents in particular were introduced. One document introduced by the Respondent was put forward as containing corporate records (referred to as Form 6s) indicating that the Complainant was disciplined for this incident, and reciting the incident as Mr. Watson had outlined it, except for the reference to the small knives in the Complainant's possession. The Form 6s are a commonly used form at the Edmonton Garage that are employed for a variety of reasons. On the form it shows to whom copies of the Form are to be sent. When it comes to disciplinary matters, the person being disciplined would normally receive a copy. The Form 6s introduced indicate that the Complainant would have received a copy.
[92] However, in the Complainant's testimony, he stated that he was not disciplined nor did he ever receive the Form 6 reprimand introduced into evidence. The Form 6 evidence was put to the Complainant during cross-examination, and Complainant's counsel objected to their introduction. She submitted that the Respondent was under an obligation to disclose all of the Complainant's employment records, and had not previously disclosed these particular documents.
[93] I allowed the documents to be put to the Complainant on the basis that Form 6 documents relating to a 1992 incident might not necessarily have been considered relevant prior to the hearing. In that the complainant gave statements under oath, that the documents tended to refute, I allowed Respondent's counsel to introduce them as credibility was an issue in the hearing. At the cross-examination stage, they were introduced as exhibits for identification only, as there was no evidence that the Complainant had seen them previously and he testified therefore that he could not identify them.
[94] Subsequently, the document