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This Canadian decision is in regard to the complaint dated 21st July 2006 by David Mills, as a Complainant, against J.E. Culp Transport Limited, as a respondent, claiming that he was discriminated by the respondent for failing to offer a working environment that is free from nuisance and prejudice on the basis of disability which concluded in the failure to hire and accommodate his requirements in contrast to the section 7 and 14 of the Canadian Human Rights Act. David asserts that the accused conduct happened after him becoming temporarily disabled and was not able to carry out his duty as a truck driver with the Respondent following a motorcycle accident outside of work (Canadian Human Rights Tribunal, 2006). This happened on 25th of September in the year 2005 when his leg was broken. He complains that the Respondent refused to hire him again due to his disability, despite the fact that he was willing to go back and work during the time that the Respondent had been advertising for and employing new drivers. Not even receiving both a note and a letter on 14th and 15th of March in 2006 from his physician clearing him to go back to work could change the Respondent’s mind about rehiring him.
Basing on the reason set below, I have concluded that the Complaint has not been confirmed and is therefore dismissed (David & Frank, 1974). The compliant quotes the above noted sections of the Act as the biased practices that the Respondent betrothed in on the source of the Complainant’s disability. The sections state as follows:
It is a discriminatory practice either directly or indirectly
It is an unfair practice, directly or indirectly to,
(i}To decline to employ or continue to employ any person or
(ii) In the period of employment, to distinguish harmfully in relation to an employee, on a forbidden ground of favoritism.
It is an inequitable practice in that:
(i) In the provision of commodities, services, equipments or housing habitually available to the common public,
(ii) In providing business premises or residential housing, or
(iii) In employment related issues, to pester a person on forbidden ground of unfairness.
The restricted view of discrimination mentioned in the Complaint is disability pursuant to section 3 (1) of the Act.
Relevant Issues related to Human Resource Management and Human Rights
Hill (1981) states that since 1985, the Respondent has managed a trucking business that is located in Beamsville, Ontario. The business operates a fleet of approximately 40 to 50 trucks that it owns. The business is in accordance to various contracts with persons, firms or organizations that need goods that are supposed to be hauled. We have long haul contracts for refrigerated goods and short haul contracts for solid waste commodities. In this case, the long haul contracts cover longer lengths and take quite a number of days of travel usually to the south of the United States. The short tour contracts are day journeys between waste shift locations around the Golden Horseshoe in Ontario and waste dumping sites just across the boundary in the United States. These contracts are mainly verbal and the business rises and falls considerably according to the requirements of the customers. It is very competitive and price motivated. The Respondent contracts include driving between United States and Canada.
The hiring of drivers is based on a needed non-union contractual employment basis where they pick up their Respondents’ trucks at the yards in Beamsville. The daily waste dumping routes drivers load the truck and from a waste transfer place in Ontario and offload the truck at the waste disposal facility in the United States and later return the truck to their Respondent’s yard on the very same day. They are employed and funded only by the trip or load really driven and there is no job guarantee daily or just any day for the workers because it is based on loads available (Howard, 1986). Even though drivers can refuse to work, they do not get paid for other reasons like temporary disability, sickness or being absent from work for any other reason. Normally there is a high degree of earnings among drivers who are hired in the business to drive owner’s trucks.
David began to drive his Respondent on 30th of July 2004. He mainly hauled waste between the Waste Operation Inc. facility in Toronto and the Pine Tree Acres Landfill site in Michigan. His Respondent’s contract with the Waste Management Inc. was ended in September in 2005. Among the five drivers that used to drive that route during that time the Complainant included, it was only one driver left with any job with the Respondent due to termination of contract. The left driver was shifted to part- time to a Barrie transfer facility by the Respondent who also hauled waste to waste dumping places in New York State (Seitz et al., 1977). Though, the Respondent claims that at the time the Complainant worked for him, he always declined to drive the routes to New York State and could not give reasons to the Respondent. He also claimed that he did not like long haul routes.
The Complainant was warned by the Respondent on two instances during his fourteen months of work. He was first given a letter on 15th December 2004 as a warning for driving at an excessive speed along a service road and overtaking another truck owned by the same Respondent. He caused the other truck to slow down in order to keep away from a possible accident. On the second occasion, he was given a warning on 7th of January in 2005 about an incident at the Waste Management Inc. yard in Toronto as he allegedly rejected to load a truck and returned the truck unloaded to the Respondent’s yard without informing the respondent for further orders. At the Hearing, evidence also confirmed that there further accusations recorded on dispatcher’s notes respecting low performances and stubborn behavior by the Compliant in his dealings with workmates, customers and fellow drivers. One incident concerning this case was when he spitted at a fellow driver.
David, the Complainant was charged on 28th of July in 2005 with two driving mistakes when driving a load to Michigan. Driving without a seatbelt was one of his offences and another was driving without the load well protected. The Responded paid for the ticket in relation to the offence for the unsecured load. The Complainant as not permitted to drive briefly with accordance to this incident as the State trooper had taken away his license. Due to his record and underperformance, the complaint did not receive any extra and additional benefits during his employment period like unlike other drivers who received for their good performance and safety records on a quarterly and yearly basis (Seitz et al., 1977).
The letter of 29th Sept. 2005 was sent by the respondent to the complainant covering profits for the twelve weeks, just in the same way it was done earlier with many other drivers who didn’t attend work session due to injuries or illness, or due to other reasons and couldn’t come back to job for an elongated period of time of not less than twelve weeks. The drivers were re-employed in these previous cases when they went back to work incase that work was available and that they had satisfactory records of work. Furthermore, the respondent hired in the past a number of drivers with disabilities. The discontinuations of benefits alone were covered in the letter of 29th Sept. 2005 due to the fact that drivers were not paid in any case for any days which they actually didn’t attend to work (Argo, 1977). The respondent was given a piece of advice by the Federal Government Authorities asserting that its stand in this regard was acceptable under section 239(1) of the Canada Labor Code R.S.C., 1985, c. L-2 which states as follows:
239(1) Subject to subsection (1.1), no manager shall send away, demote, discipline, suspend or lay off a worker as a result of absence due to injury or illness incase:
- The worker has accomplished three consecutive months of nonstop employment by the employer before the absence’
- The duration of absence does not go beyond twelve weeks, and
- If the worker is requested in writing by the boss within fifteen days following his return to work, offers the employer with a certificate of an experienced medical practitioner confirming that the worker was not capable of working due to injury or illness for a specified duration of time, and that that duration of time corresponds with the absence of the worker from work (Argo, 1977).
There was no therefore proof that the complainant made a complaint under section 240 (1) of the Canada Labor Code that had been send away unreasonably as a result of the actions of the respondent under the Code s. 240 (1) of the Codes which states that:
240.1 (1) Subject to subsections (2) and 242 (3.1), any individual:
i) Who has accomplished twelve uninterrupted months of incessant by an employer, and
ii) Who is not an associate of the group of workers subject to a group agreement, can make complain by writing to an inspector incase the worker has been fired and thinks that the firing was unfair (Argo, 1985).
Nevertheless, the complainant let it be known while recovering that he was hopping to go back to work with the respondent when his injuries had healed even though the complainant had limited contact with the respondent. The respondent no longer had the Waste Management contract to tow waste to Michigan that had offered the complainant with work before his injury that had developed the basis of the complainant’s duties during this time (Argo, 1985).
Implications of this human Rights Case for Human Resource Management Practices
According to Argo & Cline (1985), this case of human rights has implications of great significance to the human resources management. This is due to the fact that it warns them against discrimination, harassment and poor working conditions and environment. It is observed in the case that there are quite a number of human resource management have been discriminating employees in accordance to their race, language, among many other in that they employ members of their race or community alone while exposing other employees under severe working conditions. Some human resource management has got habits of exploiting their employees and harassing and abusing them sexually and psychologically. The case reveals that many mangers force people who seek employment in their companies to have sexual intercourse with them so as to secure a job opportunity or be promoted to the next stage.
Argo & Cline (1985) assert that this case thus plays a significant role in regard to these issues since it warn them and educate the entire society about human rights. This human rights case prohibits strictly these sought of abuse and give room for gender equality, safe and humble working environment, and protects all works from any type of harassment with sexual harassment being protected strictly. The need our environment is also stressed by the case in that all companies including private, public, production and processing companies are required to ensure that they apply friendly techniques of production in their process of production. All human resources management is also called upon to ensure and maintain security of their workers under all costs. While this human rights case focuses on human resource management and their relationship to the employees, it also enable workers and all other people to be aware of their rights thus placing them in a position to report any case of discrimination, harassment, hatred or abuse to the offices of departments of labor which will take necessary action in return. Thus, it is all these facts that make this human rights case to be of great significance not only to the workers but all people and the environment under which they leave.