Lavender v. 944369 Ontario Ltd. (No. 2), 1998 CanLII 29788

Lavender v. 944369 Ontario Ltd. (No. 2)

1998-09-01

Ontario Board of Inquiry

BOARD OF INQUIRY (Human Rights Code)

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended;

AND IN THE MATTER OF the complaint by Solange Lavender dated February 1, 1996, alleging discrimination in employment on the basis of sex.

B E T W E E N :

Ontario Human Rights Commission

• and - Solange Lavender

Complainant

• and -

944369 Ontario Limited (Operating as Cochrane Station Inn Restaurant) and John Polizogopoulos

Respondents

DECISION

Adjudicator: Mary Anne McKellar

Date: September 1, 1998

Board File No: BI-0129-97

Decision No.: 98-015

A P P E A R A N C E S

Ontario Human Rights Commission: Roger Palacio, Counsel

Solange Lavender: on her own behalf

944639 Ontario Limited (Operating as Cochrane Station Inn Restaurant) and John Polizogopoulos: David Lanthier, Counsel

INTRODUCTION

Pursuant to s. 36(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("the Code"), the Ontario Human Rights Commission ("the Commission") referred the complaint of Solange Lavender ("the Complainant") dated July 29, 1994 and amended February 1, 1996 to the Board of Inquiry ("the Board") for a hearing. The Complaint alleges that John Polizogopoulos ("the Personal Respondent") and 944369 Ontario Ltd. ("the Corporate Respondent") infringed the Complainant's right to equal treatment in respect of employment by discriminating against her on the basis of sex.

THE ISSUE

At issue is whether the Complainant quit her employment with the Corporate Respondent, or was terminated. If the latter, then there is a further issue as to whether she was terminated on the basis of her pregnancy.

THE DECISION

I find that the Complainant's employment was terminated because she was pregnant, contrary to sections 5(1), 9 and 10(2) of the Code. The Respondents are jointly and severally liable. My remedial orders are found at the end of this decision.

THE FACTS

These findings of fact are based on the testimony of and the documentary evidence adduced through the following witnesses: the Complainant; Dr. Donovan Gray; Donna Searles; Jennifer Roberge; Isabelle Bruneau; Robin Lavender; Lynne Parent; Johanne Girard; and Christine Tessier. In addition to testifying, affidavit evidence was also tendered in respect of the following witnesses: Sandra Gravel; Christina Recoskie; Mona Cheff; and Debbie Chapman. In addition to his testimony, an unsigned document entitled "Statement and Submissions of John Polizogopoulos and 944369 Ontario Limited" was filed on behalf of the Personal Respondent.

The Corporate Respondent owns and operates restaurants in Cochrane, Ontario. The Personal Respondent is the sole shareholder of the Corporate Respondent.

The Corporate Respondent successfully tendered a bid to operate the Cochrane Station Inn Restaurant ("the Restaurant") for a three-year period commencing in February 1994. The Restaurant premises are owned by the Ontario Northland Railroad, which also operates a hotel located in the same building.

The Personal Respondent hired 15 staff to work at the Restaurant, approximately 10 of whom were hired to wait on tables. One of them was the Complainant. All of them commenced work on February 5, 1994. Although there were disputes as to the position for which the Complainant was originally hired, as well as the exact scope of the duties she actually performed, their resolution is immaterial to the disposition of the case. I find that her duties primarily involved waiting on tables.

After her shift on April 17, 1994, the Complainant attended at the emergency department of the local hospital because she was experiencing severe vaginal bleeding. She was advised to keep off her feet and to attend for a pregnancy test the following morning.

The results of the Complainant's pregnancy test were positive. Because of the continued bleeding, however, the Complainant was advised to get complete bed rest until it could be ascertained whether the pregnancy was viable, was in danger, or indeed, whether a miscarriage had already occurred. A further pregnancy test was scheduled for a few days later.

The Complainant testified that she made several phone calls on April 18, 1998 after receiving the news of her positive test results and the need for complete bed rest. Because the Complainant was scheduled to work the following day, she attempted to contact the Personal Respondent and her supervisor at the Restaurant, Kim Bryant, to advise them of the need to secure someone to replace her. When her initial attempts to contact them were unsuccessful, she contacted another staff member who agreed to cover her shift. Later that evening, the Complainant did reach the Personal Respondent at the Spinning Wheel Restaurant, which the Corporate Respondent owns and operates. The Complainant's and Personal Respondent's recollections of this conversation vary considerably.

The Complainant testified that she told the Personal Respondent that she was pregnant and that he congratulated her. She further testified that she indicated she needed some time off and that he responded "no problem", and that her job would be waiting for her. The Complainant also stated that she offered to provide the Personal Respondent with a doctor's note, but that he informed her that that would not be necessary.

The Complainant's husband, Robin Lavender, testified that he sat near the Complainant during her conversation with the Personal Respondent, and overheard all of her part of the conversation. Lavender was very insistent in his recollection that the Complainant indicated she would need a "couple of weeks" off, and that she never uttered the words "quit" or "resign".

According to the Personal Respondent's recollection of this conversation, the Complainant indicated that she had "good news and bad news". The good news was that she was pregnant. The bad news related to the necessity for bed rest. The Personal Respondent was adamant that the Complainant did not ask for time off of either definite or indefinite duration, but instead said "I quit". The Personal Respondent agreed that the Complainant offered him a doctor's note and that he indicated it was not necessary.

Sandra Gravel, a long-term employee of the Personal Respondent, whom he described as his "right hand", was present at the Spinning Wheel when the above telephone conversation took place on April 18, 1994. Gravel was working at the time, however, and did not hear the whole of the Personal Respondent's part of the conversation. She recalled hearing the Personal Respondent say "don't worry", but does not recall hearing him offer the Complainant any assurances with respect to continued employment. Gravel also testified that, upon hanging up the phone, the Personal Respondent threw his arms in the air and said, "she quit -- now I don't have to fire her". Both the Personal Respondent and Gravel testified that the Personal Respondent had already decided to fire the Complainant at the time the difficulties with her pregnancy arose. The reason given for the decision to terminate was the Complainant's poor performance on the job. I will return to this point later.

The following morning, April 19, 1994, the Complainant's husband, Robin Lavender, delivered to the Restaurant a doctor's note in respect of his wife's medical condition and inability to work. The Personal Respondent was not at the Restaurant, but Lavender left the note with a member of the staff, Mona Cheff. Cheff testified that she placed the envelope containing the note in the cash register and advised the Personal Respondent that she had done so. The Personal Respondent did not dispute that the note was provided to him, but he denied ever having read it. Cheff recalled advising the Personal Respondent that the note was in the drawer, and Lavender testified that Cheff had assured him it had been given to the Personal Respondent. The note, dated April 19, 1994 and signed by Donovan Gray, M.D., reads:

This is to verify that Solange Lavender has been advised by myself to remain off work from April 19 - 26, 1994 for medical reasons.

The Complainant had a further pregnancy test on April 21, 1994, which indicated that her pregnancy had miscarried. She testified that she was informed of the test results on April 22, 1994, and that she called the Personal Respondent to update him on her condition. Lavender testified that he was present when this call was made and that he recalled the Complainant indicating she would need a further 10 days off. The Complainant's vaginal bleeding continued. She was admitted to the hospital on April 24, 1994 and underwent a dilatation and curettage the following day. The Complainant testified that she spoke to the Personal Respondent by telephone from the hospital on the evening of April 25, 1994. The Complainant's testimony was that on each occasion that she phoned the Personal Respondent to inform him of her condition, he always advised her not to worry, to get better, and that her job would be waiting for her.

The Personal Respondent denied having spoken to the Complainant on April 22, 1994, and denied having offered her assurances with respect to her job during the conversation on April 25, 1994. His testimony was that the Complainant and Lavender showed up unexpectedly at the Spinning Wheel immediately after the Complainant's discharge from hospital on April 26, 1994, and made inquiries with respect to when she could return to work. That is the only reason he recalled for their visit. The Personal Respondent testified that the Complainant looked so frail and vulnerable that he felt sorry for her and when she asked to be returned to work he told her to call Bryant.

By contrast, the Complainant testified that she attended at the Spinning Wheel on April 28, 1998 at the request of the Personal Respondent. According to her version of events, she called the Personal Respondent on April 28, 1998 to inquire about picking up the pay already owing to her and to advise that she would be fit to return to work on May 2, 1994, but he said that he was reluctant to let anyone but employees themselves pick up their pay, which was paid in cash. He also indicated that he would like to see for himself that she was fit to return. At the conclusion of this conversation, the Complainant had her husband immediately drive her to the Spinning Wheel. Although she admitted in cross-examination that the Personal Respondent never expressly told her she would be returned to work on May 2, 1994, she nevertheless understood that she only had to call Bryant to be put back on the schedule commencing that date. Lavender's impression was similar, except that he thought Bryant would be initiating contact with the Complainant.

On May 1, 1994, the Complainant called Bryant, who indicated that she would have to check with the Personal Respondent before including her on the schedule, and promised to call her back after she had done so. Bryant never returned her call and the Complainant was never scheduled for another shift. She testified that she made many subsequent attempts to call both the Personal Respondent and Bryant, but that neither one ever returned her calls.

The Complainant's testimony was less than completely credible. For example, she clearly exaggerated the extent and importance of her duties, testifying that she was given some responsibility for opening and closing the restaurant, when the time cards she completed indicated that she was never the first employee to arrive, nor the last to leave. Additionally, she was somewhat evasive when questioned about the circumstances surrounding the cessation of two subsequent jobs. Nevertheless, on the issue of whether she "quit", I find her version of events more credible than that of the Personal Respondent. The uncontradicted evidence was that she needed her job at the Restaurant because her income was supporting herself, her unemployed husband and her daughter. It is unlikely that she would have quit unless convinced that it was absolutely necessary. Dr. Gray's evidence was that it was far from clear on April 18, 1994 that she would be unable to resume working after a period of bed rest. Additionally, "quitting" is inconsistent with the offer to provide a doctor's note, and the Personal Respondent should have realized as much when he spoke to the Complainant on April 18, 1994. At the time, he may sincerely, if illogically, have misconstrued her request for time off as a "quit", but once the doctor's note was delivered on April 19, 1994, his error should have been apparent. The Respondents' counsel argued that the Complainant and Lavender only decided to obtain the medical certificate after the Complainant had already quit, so that in the event she was able to resume working, that "quit" might be recharacterized as a request for medical leave. That argument is not persuasive for the simple reason that it is not the provision of the medical certificate that is inconsistent with an intention to "quit", it is the mere offering to provide it, an offer which, by the Personal Respondent's own admission, occurred during the very same conversation in which the Complainant allegedly "quit".

In addition to maintaining that the Complainant "quit" her employment, the Personal Respondent asserted that he intended to and had already instructed Gravel to terminate the Complainant by having her removed from the payroll. His actual testimony was, "next pay B she's gone". The reason given for the decision to terminate was that the Complainant was not "cut out for the job". A parade of witnesses was called to testify about the deficiencies of her performance: she was poorly groomed; she was rude to customers; she mixed up orders and made mistakes with the cash; she was bossy and fought with other employees; and she put her fingers in the glasses and in the food when serving people. The above deficiencies were noted by only some of the Complainant's co-workers. Generally, they described her as a "bad" waitress. Other of her co-workers, such as Donna Searles, the cook, who had no knowledge of any such deficiencies in her performance, described her as "an o.k. waitress". Another cook, Debbie Chapman, who was aware of the deficiencies in the Complainant's performance, and indeed testified that they should have been apparent during her first week of work, described her as "neither the best, nor the worst" waitress employed at the Restaurant.

Of the alleged deficiencies in performance recounted above, most were noted by the Complainant's co-workers, who may or may not have reported them to the Personal Respondent when they occurred. Cheff indicated that she told the Personal Respondent that the Complainant was poorly groomed and that her manner with customers led them to request service from other waitresses, but that she did not tell him about an incident frequently referred to in the testimony -- the Complainant serving a dinner plate to a customer with her fingers in the mashed potatoes and gravy. Obviously, the Personal Respondent cannot rely on incidents he learned about subsequent to the cessation of the Complainant's employment as justification for his earlier decision to terminate her.

According to the Complainant, only two problems with her performance were brought to her attention during the course of her employment. On one occasion, after having already served customers in a similar fashion, she brought juice to the Personal Respondent with her fingers in the glass, and he instructed her in the proper handling of beverage glasses. On another occasion, the Complainant and her co-worker Isabelle Bruneau, had a loud angry exchange of verbal insults in front of lunch-time customers when the former accused the latter of stealing her tips. The Personal Respondent had to be called in from the Spinning Wheel to straighten out the incident. A staff meeting was convened the following day and the matter was discussed. In both cases, the inappropriateness of the Complainant's behaviour was brought home to her, but she was not informed that her continued employment was in jeopardy on account of it. The Complainant herself testified about another mistake she had made in billing one of the hotel guests for a meal consumed in the restaurant, but this is immaterial because the Personal Respondent did not suggest that he knew about or relied on it in deciding to terminate her.

At Paragraph 8 of Statement and Submissions filed on his behalf, the Personal Respondent indicated that none of her performance deficiencies were brought to the Complainant's attention during the course of her employment.

During the course of the testimony it became clear that determining when the Complainant's fight with Bruneau occurred was critical to an assessment of whether the Personal Respondent had formed the intention to fire the Complainant prior to being informed of her pregnancy on April 18, 1994. Bruneau was fired by the Personal Respondent on two occasions. On the first occasion, she testified that he fired her for lateness or absenteeism, and then after he relented and took her back, fired her after she told him "to go to hell". The Personal Respondent did not deny that these were the circumstances precipitating Bruneau's termination, although he characterized the rationale for termination as her failure to show up for work. According to the payroll records and her Record of Employment, Bruneau's last day worked was April 12, 1994. None of the staff who testified could recall exactly when Bruneau's fight with the Complainant occurred, but it was obviously at least two days before April 12, 1994, since Bruneau attended the staff meeting on the day after the fight, and then subsequently worked with the Complainant. In her testimony Chapman said she could not comment on the post-fight working relationship between the two because she did not think Bruneau worked at the Restaurant again following the fight. In his final submissions, the Respondents' counsel seized upon this remark as definitively establishing when the fight occurred. All of the witnesses called by the Commission testified before Chapman did. Some of them commented on the post-fight working relationship of Bruneau and the Complainant and they were not cross-examined with respect to whether that working relationship actually subsisted after the fight. Chapman's casual remark simply cannot be relied on to establish that the fight occurred at the end of Bruneau's period of employment. The Personal Respondent himself testified that the fight must have taken place between April 3, 1994 and April 10, 1994. I conclude that it must have been closer to the beginning of that period, since other witnesses would presumably otherwise have recalled its proximity to Bruneau's termination, and would not have been able to comment on the Complainant's working relationship with Bruneau after the fight, if that relationship had only continued for a day or so.

The Personal Respondent in viva voce testimony stated that shortly after the fight, the Complainant served him juice with her fingers in the glass, and that this incident precipitated his decision to terminate her employment. Gravel testified that the fight itself was the precipitating incident. In either event, the Personal Respondent's instruction to Gravel to have the Complainant removed from the payroll should already have been effected by April 17, 1994 when her need for bed rest was first communicated. Pay periods were two weeks in length, running from Monday to Sunday, with employees paid in cash on the Thursday following the end of the pay period. One pay period ran from March 28, 1994 to April 10, 1994, and another ran from April 11, 1994 to April 24, 1994. In other words, had the Personal Respondent sincerely formed the intention to terminate the Complainant because of the fight and given Gravel the instructions that both of them recalled, the Complainant could have been terminated as of April 10, 1994, and would have received her last pay and separation slip on April 14, 1994.

In his written submissions, the Respondents' counsel suggested that I find that the Personal Respondent's instructions to Gravel B"next pay B she's gone" - meant that the Complainant's employment would cease as of April 24, 1994. The difficulty I have in accepting that those were the instructions, however, is Gravel's testimony that between the decision to terminate and April 17, 1994, she did not have time to instruct the bookkeeper to prepare the Complainant's Record of Employment, when it is clear that she would, in fact, not only have had the time (more than a week), but also the opportunity, when she communicated to the bookkeeper the hours of work on which pay should be calculated for the period that ended on April 10, 1994. If the Personal Respondent had already decided to terminate the Complainant, I find that the request for her Record of Employment would, in all likelihood have been made prior to April 17, 1994 and would have been provided to her when she received her pay on April 28, 1994. Similarly, even if the Complainant had quit, her Record of Employment ought to have been promptly prepared. In fact, the Complainant was not provided with this documentation until sometime after March 6, 1995.

Even absent the misgivings that the timing issues raise about the bona fides of the Personal Respondent's decision to terminate the Complainant, I find that such a decision would have been so extraordinary in the circumstances as to cast considerable doubt upon those bona fides. Bruneau was also involved in the fight, but she was not fired for that reason. Furthermore, with the exception of Bruneau, no one could recall anyone who had ever been fired by the Personal Respondent. Indeed, he testified that he did not like to fire employees outright, preferring instead to deal with inadequately performing employees by gradually reducing their hours until they quit. In this fashion, he testified, he managed to avoid making enemies and alienating customers in a small town. As well, Chapman testified that the Complainant was not the worst waitress in the restaurant, and that the extent of her abilities was apparent after her first week on the job. Her fellow cook, Searles, said the waitresses were a "pretty dozy bunch" overall. The one exception appeared to be Cheff, who was said to be an excellent employee. In other words, there does not seem to have been any overwhelming reason why the Complainant should have been singled out for termination.

No doubt there were deficiencies in the Complainant's work performance. For several reasons I am unable to conclude, however, that they were such that the Personal Respondent had decided to terminate her prior to being notified of her pregnancy on April 18, 1994. First, the Complainant had not been informed of many of the deficiencies alleged, and had certainly not been advised that they threatened her job, even though I heard evidence that the Personal Respondent was not shy about correcting his staff on the spot, even if that involved raising his voice at them in front of customers. Second, the Complainant had not been informed of any decision to terminate her. Third, her hours had not been reduced to provide her with an incentive to quit, which was the Personal Respondent's usual practice with under-performing staff. Fourth, Chapman, a witness called by the Respondents, said the Complainant was neither the best nor worst waitress, suggesting that she would not have been the first in line to be fired for poor performance. Fifth, the payroll records and the timing of the pay periods are inconsistent with the decision to terminate having already been made. In my view, Chapman characterized the situation properly when the Personal Respondent's counsel asked her if the Complainant's pregnancy had anything to do with the cessation of her employment and she responded that it was just "bad timing" and the Personal Respondent "took advantage of the situation". The legal question I have to decide is whether taking advantage of the situation amounts to discrimination contrary to the Code.

ANALYSIS

The Commission and the Complainant allege that the Respondents discriminated against her contrary to sections 5(1), 9 and 10(2) of the Code.

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

I should note that although I heard evidence with respect to the effect that the Personal Respondent's treatment of other employees who became pregnant, that evidence is irrelevant to the issue of whether he discriminated against the Complainant.

I issued an interim ruling in this matter on February 13, 1998. In it I wrote:

Respondents' Counsel in his opening statement said that this was not an employment law case. I agree with him. The object of my inquiry is not to determine whether the Complainant was an effective employee or whether the Respondents managed the employee relations aspect of their business in an appropriate manner. Simply put, the Respondents could have engaged in the worst possible employment practices, but still not have contravened the Code. And the Complainant may have been the world's worst waitress, but if the Respondent treated her differently from other employees because of her pregnancy, that would still amount to a contravention of the Code.

Having said that this is not an employment law case, however, the Respondents have legitimately raised the issue of the Complainant's work performance in order to explain why that treated her as they did. They hope that I will believe their denial that considerations of her pregnancy had anything to do with their actions if I can conclude that she was a poor employee.

Whether or not the Complainant's performance was objectively speaking "poor" enough to justify the Respondents' actions is not something I need to determine. Rather, I need to determine whether it was poor enough in comparison to the Respondents' own standards to justify their actions. Was the Complainant treated the way the Respondent [sic] treated other employees they considered to be performing poorly?

In his final argument, the Respondents' Counsel tried to persuade me that the analytical framework suggested in the above passages was not the correct one to apply.

He argued that the Complainant and Commission had not established a prima facie case of discrimination because they had not shown that the Personal Respondent had any intention to discriminate against the Complainant because of pregnancy. I do not accept that proposition. A prima facie case is established when evidence is led from which it would be possible to conclude, absent an explanation from the respondent, that a complainant was discriminated against because of a prohibited ground. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 (S.C.C.), at p. D/3108. Clearly it was possible to conclude from the case put by the Commission and Complainant here that the latter was pregnant, that this fact was communicated to the Respondents, and that her employment ceased, although she wished to continue working.

The Respondents' explanation was that although the Complainant happened to be pregnant, his intention to terminate her employment was not predicated in any way on the fact of that pregnancy. I have already rejected the notion that the decision to terminate predated the Complainant's communicating the fact of her pregnancy to the Personal Respondent, finding instead that the latter took advantage of the opportunity created by her pregnancy and the request for medical leave to terminate her employment. If she had not become pregnant and made a request on April 18, 1994 for medical leave, I find that the Respondents would have continued to employ her at the Restaurant. It is immaterial that the Personal Respondent may have had good and sufficient reason to terminate her. Absent her pregnancy and request for leave, I find that he would not have done so. Contrary to section 5(1) of the Code, she was not "treated equally" as compared to other poorly performing employees. Her only distinguishing characteristic was her pregnancy. There is therefore a causal nexus between her pregnancy and the unequal treatment she received. Pursuant to s. 10(2), I find that she was therefore denied equal treatment "because of pregnancy".

REMEDY

The Complainant obtained other employment on September 11, 1994. Her claim for specific damages in respect of loss of wages between May 2, 1994 and that date is $4,896.68, inclusive of wages and tips. She was not cross-examined with respect to these calculations, nor was their accuracy disputed by the Personal Respondent. Although I cannot conclude with any certainty from the evidence that the Complainant would have remained in the employ of the Personal Respondent during the entirety of this period, or that she would have continued to work unreduced hours and receive similar earnings, in the absence of any evidence from the Respondents indicating how poorly performing employees' hours of work were reduced, or what degree of turnover there was among the waitresses, I am not prepared to reduce the amount awarded on the basis of these factors. I award specific damages of $4,896.68 plus pre-judgment interest calculated in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, from May 2, 1994 to the date of this decision.

I assess the general damages in respect of the Complainant's loss of the right to be free from discrimination on the basis of pregnancy at $3,500.00, inclusive of pre-judgment interest.

I dismiss the claim for damages in respect of mental anguish on the basis that the Personal Respondent's actions do not demonstrate the requisite degree of wilfulness or recklessness. He did not deliberately intend to discriminate against the Complainant contrary to the Code.

The Personal Respondent and the Corporate Respondent are jointly and severally liable for the above amounts.

The Commission also sought the following non-monetary remedies: a letter of apology from the Respondents to the Complainant; a letter from the Respondents to the Commission assuring that they would abide by the Code in the future; and the posting of Code cards in the workplace. In my view, a compelled letter of apology is not an appropriate remedy. The requests for a letter of assurance and for the posting of Code cards are appropriate in the circumstances of this case.

ORDER

I order the Respondents to pay to the Complainant $8,396.68 plus pre-judgment interest on the specific damages portion ($4,896.68) calculated in accordance with the Courts of Justice Act, supra, from May 2, 1994 to the date of this decision. If the amount so determined is not paid within 45 days of the date of this decision, it will attract post-judgment interest calculated in accordance with the Courts of Justice Act, supra.

I further order the Respondents to provide the Commission with a letter of assurance, acknowledging their obligations under the Code and undertaking to abide by them in the future. I further order the Respondents to post Code cards in prominent locations where they may be read by patrons and staff in any restaurants they own or operate in Ontario, now or in the future.

Dated at Toronto this 1st day of September, 1998:

Mary Anne McKellar Member, Board of Inquiry