Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases The in-person interview was conducted by three talent acquisition partners for Air Canada. The airline asked Pedroso to bring certain identification and security docu- ments, including his driver's licence, to the interview so they could confirm his identity, the information he had included in his ap- plication and his citizenship status. These documents were reviewed by Air Canada in- terview co-ordinators to confirm his identity and status, but the talent acquisition part- ners did not have access to them. The interviewers followed a questionnaire template with behavioural questions related to Pedroso's experience from prior jobs and education and his response to potential cir- cumstances he could find on the job. They found that Pedroso's answers were often vague and didn't show the skills they were looking for to fill the flight attendant posi- tion — Air Canada was looking for "enthu- siastic individuals to join its onboard team dedicated to creating a safe and highly en- joyable travel experience for our customers." Not hired after in-person interview Pedroso felt that he did very well in the in- terview. However, on Nov. 8, Air Canada sent him a letter stating that his application was unsuccessful. Given his successful telephone interview and language assessments and the fact Pe- droso believed his in-person interview went well, he thought the reason Air Canada didn't hire him was his age — he was 60 years old at the time. He wasn't asked his age in the interview, but it was on the identification documents he submitted. Pedroso submitted a complaint to the Ca- nadian Human Rights Commission alleging that Air Canada discriminated against him based on his age. The commission appointed an investi- gator to the case, who interviewed Pedroso and the three Air Canada interviewers. After learning the details of the in-person inter- view and the findings of the interviewers, the investigator was satisfied that the interview- ers had not seen Pedroso's identity docu- ments, were not aware of his age at the time of the interview or during their evaluation of his candidacy and their rejection of his ap- plication was based on legitimate grounds not related to Pedroso's age. The investigator also looked into statistics for Air Canada's hiring process during the time of Pedroso's application. There were 3,403 candidates for the bilingual flight at- tendant position and 742 were hired. Of those, 92 were 40 years old and older with seven aged between 50 and 59. Investigation found no discrimination The investigation report was completed on May 14, 2018, noting that the largest num- ber of applicants were between the ages of 20 and 29 and the position "may not have wide appeal to people who are older." It found Pedroso's complaint did not have merit and recommended that it be dismissed, stating that "given the above information, and the fact that the complainant did not provide evidence to support his claim that he was unsuccessful due to age, the evidence does not appear to support an allegation of fail- ure to hire based on age." The commission accepted the recommendation and formally dismissed the complaint on Aug. 9. Pedroso sought judicial review of the de- cision, appealing to the Federal Court. He claimed the investigation was flawed and the investigator should have reviewed the notes from his in-person interview. He maintained that he "aced" the interview with "perfect an- swers" and their account of it was false. The court noted that there was a "stark contrast" between Pedroso's account of the interview and that of the three Air Canada talent acquisition partners. The investigator indicated in the report that interview notes were "commercially sensitive" and Air Can- ada was concerned about potential public disclosure of the information by the com- mission, so the investigator was satisfied not to see the notes. In addition, Pedroso didn't provide any evidence or specific examples of his version of the interview, said the court. The court also pointed out that the role of the investigator included "exercising her discretion by applying her expertise" and the Canadian Human Rights Commission reviewed the report and didn't require any further investigation. The court found that the commission's role was to determine if there is sufficient evidence to refer the complaint to the Cana- dian Human Rights Tribunal for a hearing. Its investigation involved a review of the in- terview process, interviews with Pedroso and the Air Canada interviewers and obtaining statistics on applicants and successful can- didates. Pedroso, for his part, didn't provide any evidence supporting his claim that his interview went well. The court determined that the investiga- tion report and the commission using it as the basis to dismiss Pedroso's complaint was a reasonable outcome of the decision- making process. Since it fell within a range of reasonable outcomes, it was appropriate to defer to the commission's decision, said the court in dismissing the appeal. "The investigator's reasoning is clearly set out," said the court. "The report, being the reasons of the commission, meets the requirements of having a reasoning process that is transparent, intelligible and justified and an outcome that falls within the range of reasonable, acceptable outcomes defensible in respect of the facts and the law." For more information, see: • Pedroso v. Air Canada, 2020 FC 464 (F.C.). « from REJECTION on page 1 Applicant's perception of interview contrasted with interviewers The in-person interview involved questions related to experience and education and his response to potential circumstances he could find on the job. Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features such topics as wording of termination provisions, monitoring employees working from home, and returning employees to the physical workplace. You can view the blog at www.employmentlawtoday.com.

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