Broere v. W.P. London and Associates Ltd.
1987-05-13
Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE
Pat Broere
Complainant
v.
W. P. London and Associates Ltd.
and
J. McConvey and W. G. Brooks
Respondents
November, 1983
May 13, 1987
Place:
Niagara Falls, Ontario
Before:
Paula Knopf
Comm. Decision No.:
287
Appearances by:
Kim Twohig and John Rattray, Counsel for the Ontario Human Rights Commission and Pat Broere
John Broderick, Counsel for W. P. London and Associates Ltd. and J. McConvey and W. G. Brooks
FAMILY STATUS — mothers less likely to be long-term employees
Summary: The Board of Inquiry find that Pat Broere was discriminated against because of her family status when she was laid off from work at W. P. London and Associates Ltd. in November of 1983.
Ms. Broere had just returned from maternity leave when the company decided to cut back on staff because of a shortage of work. The Board of Inquiry finds that one of the reasons for laying off Pat Broere rather than other members of staff was that she had a small child at home, and it was considered that she was less likely than other women to be a long-term employee.
The Board finds that this lay-off decision constitutes a violation of the Ontario Human Rights Code and orders the respondents to pay compensation for wages lost between December 1983 and February 1984 when Ms. Broere was recalled. The Board also orders the respondents to pay $500 in general damages.
1This case involves the complaint by Patricia Broere that she has suffered discrimination in employment because of her family status. Mrs. Broere's employment with W. P. London and Associates Ltd. (hereinafter referred to as W. P. London or the company) was terminated shortly after she returned to work following the expiration of maternity leave which had been granted upon the birth of her first child. Mrs. Broere alleges that the birth of this child was the cause, or one of the contributing causes, for her termination.
2The history and background of the case can be summarized as follows. W. P. London is a consulting engineering firm which specializes in thermal power. It works largely with power companies and the petro-chemical industry. The company was founded in the early 1960s. By about 1974, the company received two large contracts or "mega projects" with large public utilities that necessitated the growth of the company to a staff of over two hundred, including engineers, draftsmen, and the attendant support staff. By the early 1980s, the company had close to three hundred personnel. However, by about 1982, the mega projects reached completion and were not replaced with others. This began a series of large layoffs, beginning with the draftsmen, then the engineers, and finally reaching the support and clerical staff. By 1983 or 1984, the company was reduced to about fifty people.
3In the fall of 1983, it was decided to lay off clerical and typing staff. There is really no dispute that legitimate business reasons prompted the layoffs at that time. Approximately six people were issued layoff notices. The only real dispute is whether the family status of Mrs. Broere was one of the contributing factors to the decision to terminate her employment as part of the cutback in clerical staff at that time.
4Mrs. Broere had worked with the company since 1976. She was a word processing operator. Her duties included the typing of proposals for new projects and making the necessary revisions. She was acknowledged by witnesses for both parties to be the best Micom operator in the company. In fact, when the company converted to the Micom system in 1980, it was Mrs. Broere who spent the year effecting that difficult conversion. She also did relief work in most of the other support duties in the office from the position of typist to switchboard operator. Even the management witnesses praised the quality of her work and her abilities. She has never received any criticism or discipline for any of her performance.
5In May 1983, she gave birth to her first child. She had worked up to just before the birth and had been given relief from the duty on the display terminal during her pregnancy by being reassigned to other duties at her doctor's request. After her child was born, Mrs. Broere took four months' pregnancy leave. She returned to work in September 1983 to her former duties as the Micom operator.
6On October 16 or 17, 1983, Mrs. Broere was called into the office of Mr. William Brooks, the Vice-President of Finance and Administration. Also present was Mr. John McConvey, the Personnel Manager for the company. Mrs. Broere testified that she was then told by Mr. Brooks that she was being laid off due to a shortage of work. Her immediate response was that the excuse was "ludicrous" because she said she was very busy on a full-time basis on the word processor doing the work of an associated company called London Nuclear whose business was increasing. She said she was so busy that she often worked through lunches and did not take breaks. In response to this, Mr. Brooks admitted in his testimony that he then agreed to speak to Gerry Smee of London Nuclear to check into Mrs. Broere's assertion. In the meantime, Mrs. Broere said that after she had discussed this alleged shortage of work with Mr. Brooks, Mr. Brooks then went on to say that there were other shortages of work in other areas and that people were going to be switched around. Mr. Brooks explained to her that he had decided on the layoffs on the basis of competence, versatility and ability to get along with others. Again, there is no dispute that Mr. Brooks mentioned to Mrs. Broere that she lacked the necessary versatility to be chosen as one that would be kept on. Mr. Brooks was concerned because he did not feel that she would be able to do such things as the switchboard. But at that point in their interview, Mrs. Broere reminded Mr. Brooks that she had done work on the switchboard in the past and he then admitted that he had forgotten about that.
7Up to this point, there is very little factual dispute between the testimony of Mrs. Broere and Mr. Brooks. However, the factual dispute arises at this point. Mrs. Broere claims that Mr. Brooks kept saying that the company was looking for people who would be with the company on a "long-term" basis. Mrs. Broere claims that Mr. Brooks said that, since "you have a child at home . . . we assume you'll leave sooner than the other two [employees] to look after her." Mrs. Broere also claims that Mr. Brooks said, that having a child is a disadvantage over the other employees who are being kept because she would probably leave the work force sooner. The other two were said to be "very reliable." Mrs. Broere testified that up to that point, Mr. McConvey had said nothing. But when Mr. Brooks mentioned the child, Mrs. Broere said that Mr. McConvey looked upset and as if something wrong had been said. Mrs. Broere also said that Mr. McConvey then said that women with young children were more inclined to leave the work force and that she was not the only one in that position.
8Mr. McConvey was not called to testify. Mr. Brooks did testify and strongly disputed Mrs. Broere's claims. Mr. Brooks says that the family status of Mrs. Broere was simply never a factor in his decision to lay her off. He said he had to decide who to lay off so that the company would be left with three women who could best work together, in an unscrutinized and unsupervised setting who were versatile enough to fill in for each other. However, he admits that during the meeting with Mrs. Broere she had pressed him for reasons, not accepting the ones that he had initially offered. Mr. Brooks explained that he found giving notice to be a very difficult task. He wanted to reassure Mrs. Broere that his decision did not reflect on her competence. He denies mentioning her child as a factor. However, he admits that when Mrs. Broere pressed him for an explanation, he was "groping" for reasons to give to her. He does admit saying something about the fact that the people they decided to keep would be a core of people who would be there to go with the company if and when the company grew in the future.
9Mr. Brooks stressed that he did not consider that Mrs. Broere would be unable to do the job. He says it was just that he felt that the three people that he chose to keep would work out best or better for the company. Mr. Brooks did testify that he had considered Mrs. Broere's ability to get along with others as a factor. He cited one instance of a dispute with an engineer over the assignment of work priorities and a couple of instances when she had changed the language on some proposals. He mentioned these as examples that caused him concern about her ability to get along with others. However, he admitted that these never amounted to anything serious enough to speak to her about and that the one engineer in question was one that many people had trouble dealing with. Mr. Brooks also admitted that he never consulted with Mrs. Broere's supervisor or any other clerical staff regarding the compatibility of Mrs. Broere with other employees. He made the assessment of compatibility on his own, based on observation. However, he admits his office was located separate from that of the clerical offices.
10The evidence also establishes that around the same time that Mrs. Broere received her termination, five other clerical staff were also given layoff notices. Of the total of six of them, five had recently returned from maternity leave. One of these five was Audrey Gallowy, who had been Mrs. Broere's supervisor. Mrs. Gallowy gave testimony to this Board of Inquiry. I think it is fair to say that she impressed everyone at the hearing as being an extremely intelligent, ambitious and capable person. She had risen from switchboard operator with the company in 1974 to becoming a supervising secretary and in charge of mega projects with the company by 1983. She too did not accept the reasons for her termination that were given to her by Mr. Brooks and Mr. McConvey. She had been told by the company that they no longer required persons of her status and that she was too abrasive. In November of 1983, she approached Mr. McConvey directly to challenge the legitimacy of the reasons which had been given to her and asked him directly whether the fact that she had two children had anything to do with her being chosen for termination. She testified that Mr. McConvey agreed that her children were a factor in the decision to terminate. However, as things turned out, work was found for Mrs. Gallowy and her layoff notice never took effect. However, she chose to resign some months later to seek a more secure and advantageous position for her talents.
11Of the three clerical staff kept on after Mrs. Broere's layoff took effect, one had a child who was over one year old, one was single with no children and the third was divorced, with three children in their teens. Mrs. Broere had to train one of these women to take over the responsibilities on the Micom machine because none of them had Mrs. Broere's proficiency on the Micom.
12Mrs. Broere says that she never mentioned to the company that she had any intention of terminating her employment. She does admit speaking casually to Mr. Brooks in a social context outside of the work place and mentioning that she missed her child and envied women who could stay at home with their children and did not need to work. However, Mrs. Broere denied that she ever suggested that she had any intention other than continuing working with the company because she simply had no other choice.
13Mrs. Broere claims that she was "devastated" by the notice of layoff. She found it difficult to work for the weeks after her notice leading up to the termination day. She also suffered from loss of sleep and appetite. She spent little time with her baby daughter and her husband and this was confirmed by the testimony of Mr. Broere himself. She clearly was very hurt and resentful about the layoff from the company for whom she had worked so hard. This reaction lasted for approximately nine months after she received the verbal notice in October 1983.
14The layoff actually took effect at the end of November 1983. She immediately contacted the Human Rights Commission and also retained a lawyer to pursue a wrongful dismissal action in the civil courts. That action was commenced in January 1984. In late February 1984, Mr. Brooks called Mrs. Broere in and asked her to return to work on the Micom machine. She then resumed full-time work and remained fully employed until October 1984 when she resigned. While this Board of Inquiry heard some evidence regarding the atmosphere of employment during this period and the circumstances regarding her resignation, that is not the subject of this complaint and has not entered into my considerations. The only relevance of that evidence is the fact that the company did call Mrs. Broere back to work within three months of the initial layoff.
15Mr. Brooks testified that after his discussions with Mr. Smee in October 1983 at Mrs. Broere's request, Mr. Brooks had foreseen that work may pick up in three months down the road. Because of this, he tried to find work for Mrs. Broere, in the meantime anticipating that she would be needed around the end of February. However, he had never been able to find this work and there is no evidence that he had told Mrs. Broere that she could expect to be recalled or hope to be recalled in February 1984.
16The evidence of the employer makes it abundantly clear that there was never any conscious corporate policy to discriminate against employees on the basis of marital status or otherwise. To the contrary, the evidence discloses that the company has employed and continues to employ people from many different countries, many different religious backgrounds, and of every conceivable marital status. Evidence was offered from Mr. Brooks as well as the controller in charge of financing and the president of the company during the relevant times. All testified that the company had never formulated a policy whereby marital or family status would be a factor for consideration and layoff.
The Argument
17Counsel for the Commission argued that the allegations of Mrs. Broere were not concerned with corporate policy or intention but with whether her marital status was a factor that made Mr. Brooks decide to choose her for termination. This Board of Inquiry was told that the key issue in the case was the content of the meeting between Mrs. Broere, Mr. Brooks and Mr. McConvey. It was submitted that Mrs. Broere could refute all the reasons that Mr. Brooks initially offered for the termination and that Mr. Brooks finally admitted that they were looking for people for the long term. It was said that Mrs. Broere's child put her at a disadvantage over the other employees. This Board was asked to prefer the evidence of Mrs. Broere over Mr. Brooks in this regard and to draw an adverse inference against the company because of its failure to produce Mr. McConvey to testify or to refute the allegations. It was conceded that there may well have been mixed reasons for deciding to terminate Mrs. Broere, but it was said the Human Rights Code would have been violated if the marital factor was even one of the factors which was considered. The Board was referred to the decision of Iancu v. Simcoe County Board of Education (1983), 1983 CanLII 4720 (ON HRT), 4 C.H.R.R. D/1203 (Ont.). By way of remedy, the Commission asked for lost wages from the period of December 1983 to February 26, 1984, plus a claim for mental anguish. It was suggested that $1,000 would be an appropriate figure.
18Counsel for the respondent vigorously disputed the Commission's claims. The financial difficulties of the company were stressed and it was said that this necessarily led to a series of drastic layoffs, affecting all of the company. It was submitted that the evidence established that Mr. Brooks had to decide who to layoff among the clerical staff and had a very difficult decision to make. It was argued that even if this Board of Inquiry disagreed with the criteria that Mr. Brooks claimed to have considered, it was the company's right to decide to lay off the employees it chose, so long as sufficient notice was given. Counsel suggested that it was Mr. Brooks' attempt to be humane and to lessen the brutality of the notice that may have led him to say things in the meeting with Mrs. Broere that created some misconceptions on her part about the company's motives. It was submitted that Mr. Brooks acted honestly and sincerely and made an informed decision as to which of the clerical staff to retain. While it was conceded that the statements attributed to Mr. McConvey had not been refuted, it was argued that the company ought not to be responsible for his words. Also, the fact that the company recalled Mrs. Broere within three months and also retained other employees at the same time who had young children were said to be factors that belie the claim. Finally, it was submitted that this was not an appropriate claim for damages for mental anguish because the conduct of the company could not be seen to be willful or reckless.
The Decision
19The evidence in this case establishes that the company decided to terminate the employment of an employee with seven years' seniority who was extremely competent and dedicated to her work. But she was not alone in this predicament. The company had suffered a severe slowdown in work resulting in drastic layoffs across the board from the executive level all the way through the employment hierarchy. There is no question that the company had the right to lay off an employee even without just cause. But this right is qualified by the requirement that sufficient notice be given and that the layoff is not the result of one of the factors prohibited by the Human Rights Code. The very question before this Board of Inquiry was whether the company's treatment of Mrs. Broere was in any way affected by discrimination on the basis of marital status.
20This Board of Inquiry is satisfied that the primary reason prompting Mrs. Broere's dismissal was a legitimate reorganization of the clerical staff to reduce the number of personnel. The reduction throughout the company inevitably led to the requirement to reduce the support staff as well. But that does not end the case. Once an inference of discrimination is raised, if only one of the reasons for choosing to dismiss an employee is her marital status, the Code has been violated, regardless of any other reasons for that decision. See Iancu, supra at paragraph 10618. Further, the explanation offered by the company to rebut an inference of discrimination must be credible on all the evidence, not just the offering of a rational alternative. See Mitchell v. Nobilium Products Ltd. (1982), 1981 CanLII 4319 (ON HRT), 3 C.H.R.R. D/641 (Ont., R. W. Kerr).
21So it must then be asked whether the complainant has raised an inference of discrimination in this case. She has shown that she was a competent and valued employee. She was dismissed within six weeks from returning from her first maternity leave. Around the same time, all but one of the other employees laid off had also just returned from maternity leave within a matter of months. While I accept Mr. Brooks as basically a sincere and honest witness, I must prefer the evidence of Mrs. Broere with regard to the statements made at their meeting in October 1983. Mr. Brooks admits that he was groping for reasons to give her and did mention wanting to keep a core group of employees for the future. He was vague on the language he used, whereas Mrs. Broere had a clear recollection of the meeting and recalled being told that in effect, the company felt her having such a young child meant she might not be available for the company as long as other employees. All this creates an inference that one of the factors considered in deciding who to retain and who to terminate was the age and numbers of the employees' children. This amounts to the creation of an inference that marital status was considered.
22This inference is strengthened by the undenied statements and conduct attributed to Mr. McConvey, the Personnel Manager. The evidence revealed that he admitted to one employee (Mrs. Gallowy) that marital status was a factor in her layoff around the exact same time that Mrs. Broere's termination was to take effect. It was also undisputed that Mr. McConvey told Mrs. Broere that he felt that employees with young children were more likely to leave the work force sooner. When this is considered together with Mrs. Broere admitting that they were looking to keep people who would form the core of the company if and when the company grew in the future, a very strong inference is raised that marital status formed at least part of their consideration in deciding who to terminate.
23The question must now be addressed as to whether the respondent has been able to rebut that inference with an explanation that is credible under all the circumstances. In this regard, while I accept the basic integrity of the company's witnesses, the explanations offered to Mrs. Broere and to this Board of Inquiry simply do not stand up to any serious scrutiny. Mrs. Broere herself was able to refute the initial explanations offered to her by Mr. Brooks at their meeting in October 1983. Mr. Brooks admitted this. Further, his claim to this Board of Inquiry that he also considered that she may have a problem getting along with others does not stand up to scrutiny when the examples he cites are of another employee who was notoriously difficult to get along with and other matters which were too trivial to even speak to her about. Also, his claim to have wanted to choose a team of three employees who would be most compatible makes little sense, because although he claims to have knowledge of the employees, he did not work in the same area, he did not consult their supervisor, and he could not possibly have understood the working dynamic of that group. While I accept that he sincerely believed he was making an informed and intelligent choice, the reasons he offered simply do not make a great deal of sense when they are viewed objectively.
24Given all that, it must be concluded that the complainant has been able to establish a strong inference or prima facie case that she suffered discrimination in her employment because marital status was one of the factors contributing to the company's decision to terminate her employment. This inference was strengthened by the absence of Mr. McConvey to refute the statements attributed to him or to corroborate the testimony of Mr. Brooks. The company's answers to the prima facie case do not withstand the test of credibility or reason. Hence, the claim must succeed.
25The complainant is entitled to an order of compensation for a loss of income from December 1, 1983 to February 26, 1984.
26While there was no corporate intention to discriminate, the company is responsible for the acts of its employees. See Iancu, supra. While Mr. Brooks may not have consciously wanted to discriminate, it is difficult to see how the decision can be considered anything other than willful because the discrimination was found to be a contributing factor. Hence, there is jurisdiction to make an award for mental anguish under section 41(b) of the Code. But under all the circumstances of the case, and taking into particular consideration the fact that the company did re-employ Mrs. Broere after the initial layoff, I shall only award $500.00 in this regard.
27This Board retains jurisdiction to deal with any matters arising out of the implementation of this decision.