Cinkus v. Diamond Restaurant and Tavern
1980-10-23
Ontario Board of Inquiry
CHRR Doc. 81-023
Elizabeth Cinkus Complainant
v.
Diamond Restaurant and Tavern
and
Mr. George Georgacopoulos and Elizabeth Moutoulos Respondents
Hearing Date: September 17, 1980
Date of Decision: October 23, 1980
Place: Toronto, Ontario
Before: Professor lan A. Hunter, Ontario Board of Inquiry
Appearances by: Mr. Peter Jacobsen, Counsel for the Ontario Human Rights Commission and the Complainant Mr. Chris Georgacopoulos, Agent for the Diamond Restaurant and Tavern and Mr. George Georgacopoulos
SEX DISCRIMINATION — position as chef denied — BONA FIDE OCCUPATIONAL QUALIFICATION — gender for chef — PROCEDURE — adjournment to allow respondent to retain counsel — COUNSEL — party without counsel
Summary: Ms. Cinkus, the Complainant, was refused employment as a chef at the Diamond Restaurant and Tavern. She alleged discrimination on the basis of sex under s. 4(1)(a) and (b) of the Code. The evidence supported her complaint and the Respondents were ordered to pay compensation of $1,350.00.
DECISION
(1) Appointment
1On April 15, 1980 I was appointed by the Honourable Robert Elgie, Minister of Labour, as a Board of Inquiry under the Ontario Human Rights Code to hear and decide the complaint of Ms. Elizabeth Cinkus of Downsview, Ontario alleging discrimination in employment by Diamond Restaurant and Tavern and Mr. George Georgacopoulos (also known as George Poulos) and Elizabeth Moutoulos, 1718 Jane Street, Toronto, Ontario.
2On September 17, 1980 a hearing was held in the City of Toronto. At the outset both Mr. Jacobsen, appearing for the Commission and the Complainant, and Mr. Chris Georgacopoulos, appearing for Diamond Restaurant and Tavern and Mr. George Georgacopoulos, indicated that they were ready to proceed. The first witness was called; he was examined in chief by Mr. Jacobsen and cross-examined by Mr. Chris Georgacopoulos. After cross-examination, Mr. Chris Georgacopoulos made a motion that the Board adjourn in order that the Respondent might have an opportunity to retain counsel. Not until this motion was the Board aware that Mr. Chris Georgacopoulos was not himself a lawyer.
3In opposition for an adjournment, Mr. Jacobsen contended that it would cause serious inconvenience to the Complainant and to six other witnesses, all of whom had been subpoenaed to attend the hearing on September 17, 1980. His position was that the Respondent had had adequate opportunity to retain counsel and had been advised in fact to do so on more than one occasion by Commission personnel, and that in these circumstances the hearing should proceed.
4After noting that the Respondents had had a copy of Ms. Cinkus's complaint since May 1979, and that the Commission had attempted to persuade the Respondent to retain counsel in preparation for the hearing, and that the Notice of Hearing was dated July 23, 1980, I concluded that the Respondents had had ample opportunity to retain counsel in advance of this hearing had they wished to do so and that, given the balance of inconvenience to witnesses, to the Complainant, to counsel for the Commission, and to the Board, the matter should be decided and the hearing proceed on September 17. Accordingly, Mr. Chris Georgacopoulos's request for an adjournment was denied.
(2) The Complaint
5On April 19, 1979 Ms. Elizabeth Cinkus attended at the offices of the Ontario Human Rights Commission at 400 University Avenue in Toronto and there filed a complaint alleging discrimination in employment against Diamond Restaurant and Tavern because of her sex contrary to the Ontario Human Rights Code.
6An amended complaint, identifying the Respondents with greater particularity, viz., "Diamond Restaurant and Tavern, its agents and servants, 1718 Jane Street, Toronto, Ontario and George Georgacopoulos, also known as George Poulos, and Elizabeth Moutoulos" was signed by the Complainant on January 17, 1980 and introduced and filed as an exhibit at the Board of Inquiry. This complaint alleges a violation of sections 4(1)(a) and (b) of the Ontario Human Rights Code.
7The clear, uncontradicted evidence at the Board of Inquiry was that Diamond Restaurant and Tavern is owned by George Georgacopoulos. Elizabeth Moutoulos is a daughter of George Georgacopoulos, the owner, who from time to time works in the restaurant as a waitress. She was not called as a witness by either side. On the evidence before me, I find that Elizabeth Moutoulos was neither an owner nor an agent of the owner and the complaint in respect of Miss Elizabeth Moutoulos is therefore dismissed.
(3) The Facts
8The Complainant Elizabeth Cinkus was trained in food preparation and cooking in Yugoslavia; she received three years' training in a cooking school in that country. She completed the cooking course in 1957. For the next nine years she worked in food preparation and cooking, first of all in a hospital in Yugoslavia, and then briefly in an itinerant settlement camp for immigrants in Germany. She came to Canada in 1966 and has worked as a cook or a chef since that time.
9From 1973 to 1978 she was employed by Mr. Harold J. Martin at the Nosherai Restaurant in the Yorkville Shopping Centre. Mr. Martin was called as a witness and gave evidence as to Ms. Cinkus's performance of her duties; she was in charge of banquets and he described her as "... a very good banquet chef" (transcript, p. 4). Filed as an exhibit was a reference which Mr. Martin had written for Ms. Cinkus (a letter written before Ms. Cinkus had any contact with Diamond Restaurant giving rise to this complaint).
10The letter reads:
To Whom It May Concern:
This is to certify that Elizabeth Cinkus has been in our employ from the 12th of June, 73 to the 13th of August, 78. She was employed as our Banquet Chef handling the preparation and decoration of all kinds of ethnic and Canadian foods. Mrs. Cinkus is an excellent cook and handles her duties to our full satisfaction. Mrs. Cinkus left of her own volition.
11Ms. Cinkus explained that she left this employment when the restaurant moved from its Yorkville location to 6900 Airport Road because daily transportation from where she lived was too difficult, apparently necessitating five bus transfers. After Nosherai, she was briefly employed as a cook by T. Eaton Company, and then by Diana Sweets, in each case leaving because the salary was not commensurate with her expectations.
12There was considerable evidence led to establish that Ms. Cinkus was a skilled cook and a conscientious employee. In addition to Mr. Martin's oral evidence and letter of reference, additional letters of reference were filed from two previous employers (