Bryans v. 1297664 Ontario, 2009 HRTO 1023

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Bryans Applicant

-and-

1297664 Ontario Inc. o/a Caryl Baker Visage Inc., Helene Igneski and Angel Igneski Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: David Muir Date: July 13, 2009 Citation: 2009 HRTO 1023 Indexed as: Bryans v. 1297664 Ontario

AppearanceS BY

Nancy Bryans, Applicant ) On her own behalf

1297664 Ontario Inc. o/a Caryl Baker Visage Inc., ) No one appearing Respondent )

Helene Igneski and Angel Igneski, ) On their own behalf Respondents )

1This is an Application filed September 9, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A Case Resolution Conference (“CRC” or “hearing”) was held in this case on May 27, 2009 in Toronto in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from the applicant, her husband Mr. Nonva and the personal respondent Helen Igneski.

3At the outset of the hearing, the respondents advised the Tribunal that the corporate respondent identified in the Application was not the applicant’s employer but was the entity from which Ms. Igneski and family had purchased the business. Ms. Igneski, a principal of the new corporate entity and the applicant’s employer submitted corporate documents of the operator of the business in which the applicant worked. I am satisfied that the corporate entity named in the complaint and this Application was not the applicant’s employer.

4The complaint underlying the present Application was filed with the Ontario Human Rights Commission on August 5, 2007. The applicant is a mother of three children and alleges that she was discriminated against in employment on the basis of family status. The particulars of this general allegation are as follows:

a. On May 17, 2007, the applicant was unable to work her shift because her daughter was ill and required care. The applicant alleges that she called in to work, but the fact that she was away that day was relied upon by the employer in terminating her employment.

b. On July 4, 2007, the applicant was required to leave work early to attend to her daughter who had been injured at a day camp. The applicant alleges that this incident was relied upon to justify her dismissal.

c. The applicant alleges that on July 5, 2007 the employer said to her that “If you miss time and are unreliable you don’t get the sales reports”.

d. The applicant alleges that her taking the day off to attend to a sick child on July 13, 2007 was relied upon to justify her dismissal.

e. The applicant alleges that the decision to terminate her employment was finally made because she needed to take up to five weeks off work to attend to her daughter who had been injured in a motor vehicle accident on July 18, 2007.

Evidence

5Ms. Igneski states the applicant’s employment was not terminated due to her child care responsibilities. Rather, the applicant’s inappropriate and disrespectful behaviour, in particular two incidents in the weeks prior to July 25, caused Ms. Igneski to dismiss her. On June 30, the applicant created a scene in the salon in front of customers. On July 19, the applicant hung up on Ms. Igneski during a telephone conversation. There is not much dispute that both events occurred largely as described by Ms. Igneski.

6The first incident occurred when, as a result of a mix-up, it appeared that Ms. Bryans had not been paid for a pay period because the data necessary for a direct deposit payment had not been communicated to the payroll service in time. Ms. Igneski arranged to provide a manual cheque and Ms. Bryans was asked to come and pick up the manual cheque on a Saturday in late June. It was later discovered that the direct deposit had in fact been processed and Ms. Bryans was paid twice. When the applicant arrived at the salon as arranged, she had one of her three children with her. There were customers in the store who Ms. Igneski was attending to. Unbeknownst to Ms. Igneski, Ms. Bryans’ other two children were waiting in her vehicle unattended. Ms. Bryans became frustrated with what is agreed was a short wait and, according to Ms. Igneski, roughly grabbed her daughter and stormed out of the salon shouting loudly at her employer.

7The applicant downplays the seriousness of the event but does acknowledge that she became upset and this would have been apparent to everyone. She testified that she was upset because it seemed that Ms. Igneski was “taking her sweet time” in attending to her, and that this was frustrating for her because she had two young children waiting for her in her car. The applicant agrees that Ms. Igneski would not have known that her children were alone in the car, and also agrees that Ms. Igneski was serving customers at the time. She also agrees that Ms. Igneski warned her that such behaviour would not be tolerated and if repeated would be cause for dismissal.

8Ms. Igneski testified that when she learned about the applicant’s child’s day camp accident, she told the applicant to go and not to worry about work. The applicant assured her that she would return by 4:00 o’clock and this was important because otherwise Ms. Igneski would need to make arrangements to call in a replacement. When the applicant did not return, Ms. Igneski called her at home. The applicant said she was not going to come in and would remain at home. The applicant did not dispute Ms. Igneski’s version of events. Ms. Igneski did not mention this incident again, and states that it did not form part of the reason for her decision to terminate the applicant’s employment.

9On the evening of July 18, 2007, the applicant’s daughter was seriously injured in a motor vehicle accident. The applicant’s son left a message at the workplace, advising that she would not be in to work the next day. The store was closed at the time that this message was delivered so that the respondent did not receive it until the next day. On the morning of July 19, the applicant left a message shortly before store opening informing the respondent that she would not be able to open the store that day.

10Because the applicant was at the hospital all day, Ms. Igneski was unable to reach her until that evening. When they did finally speak that evening, the applicant alleges that the first thing Ms. Igneski said was that she was trying to run a business and this was the second Thursday she had needed to take time off. The applicant also testified that Ms. Igneski said that she had been more than fair in letting her have time off. The applicant told Ms. Igneski she was cold and insensitive and told her she was going to hang up the phone, which she then did. Ms. Igneski called back immediately and Mr. Nonva answered saying that his wife was not there. Ms. Igneski identified herself to Mr. Nonva and asked to speak to the applicant explaining that she had just hung up on her and that she needed to speak to her.

11Mr. Nonva testified that he answered the phone and he confirmed that Ms. Igenski wanted to speak to the applicant who had just hung up on her. He was unable to persuade the applicant to do this and he asked what he could do for her. Ms. Igneski complained to him about the applicant taking time off work so often. Ms. Igneski asked him to tell his wife that she could take a week off but that if she wanted to come back she would need to provide a police report of the accident or doctor’s note.

12Ms. Igneski testified that the first she knew that anything was amiss was when the applicant left a message at 8:55 a.m. that her daughter had been hit by a car and she would not be able to open the salon. Ms. Igneski agrees she did say that she had a business to think about but was then going to tell the applicant to take the time that she needed to take care of her daughter. She was cut off by the applicant who called her cold and insensitive and yelled that she was not going to waste any more time talking to her. Ms. Igneski called right back and spoke with Mr. Nonva, who tried to persuade his wife to take the call. Ms. Igneski testified that she told Mr. Nonva to tell his wife that she should take all the time she needed to, but that when she wanted to come back to give Ms. Angel Igneski a week’s notice to put her on the workplace schedule and to provide a letter from her daughter’s doctor or a police report from the accident.

13The applicant states that her daughter was hospitalized from July 18 to July 23, 2007 and was then laid up for about a month at home. She decided that she would need to remain home with her daughter for that period.

14The applicant attended a Service Canada office on July 24 to enquire about employment insurance benefits while she stayed home to care for her daughter. She was told that she needed to obtain a Record of Employment (ROE) from her employer.

15The applicant called Ms. Igneski on July 25. Ms. Igneski answered with her usual business greeting and the applicant identified herself. Ms. Igneski she said “Hi Nancy” to which the applicant rudely responded “I need my ROE”. Asked her why she would need an ROE, the applicant responded that she needed it to collect employment insurance child benefits while she stayed home to take care of her child. Ms. Igneski said she would send the ROE.

16Ms. Igneski did not understand the applicant to be asking for a leave of absence. She also testified that it was in that moment that she decided to terminate the applicant’s employment for her rude and disrespectful behaviour and terminated her over the phone.

17The applicant did not recall exactly what was said on the phone. She did agree that the respondent stated that the reason for the dismissal was for hanging up on Ms. Igneski on July 19and that basically she felt that Ms. Igneski had had enough of her. She did not recall whether she asked for a leave of absence.

18Ms. Igneski subsequently sent a termination letter to the applicant giving reasons for the termination largely as set out above.

Analysis and Decision

19The Application is dismissed. Although the applicant sincerely believes that the decision to terminate her employment was informed in part by her absences from work to attend to her children, I find based on the evidence presented that this was not the reason. Ms. Igneski terminated the applicant for what she perceived was her lack of respect and what she would characterize as misbehaviour. It is also likely that lingering unease over the direct deposit issue was probably a factor as well. To the extent that there was an obligation on the part of the employer to accommodate the applicant’s child care obligations, the employer more than met that obligation in its general treatment of her.

20It does not matter whether any of the reasons given by the employer for the termination would constitute just cause for dismissal, rather the question from a human rights perspective is whether the reasons offered by the employer are plausible, rational and are untainted by any consideration of any of the prohibited grounds in the Code. I find that Ms. Igneski’s explanation for her decision to terminate the employment relationship was plausible, based on real and largely acknowledged events and not informed to any degree by a concern that the applicant was taking too much time to care for her injured child.

21In large part the tension between the two women was informed by the applicant’s perception that Ms. Igneski was cold and insensitive and did not express appropriate concern for her daughter after the accident on July 18. This perception whether justified or not, affected her interactions with Ms. Igneski on July 19 and 25.

22The applicant was understandably upset over what had happened to her daughter and became frustrated with what she perceived was Ms. Igneski’s insensitivity when she made reference to the fact that she had a business to run. There is no dispute that she expressed that frustration to Ms. Igneski and hung up on her on July 19 before her employer could finish what she had to say. However, I accept that Ms. Igneski was going to tell the applicant that she should take time off work if she needed to, but she was unable to do so because the applicant hung up on her.

23However, at some point between July 18 and July 25, Ms. Bryans had learned that her daughter was out of the woods but would need close attention and care for a period of time. There is no evidence that she asked for a further leave of absence, or that if a leave was requested, it would have been denied. I find that instead of contacting her employer to explain her situation and ask for a further leave, she called and asked for an ROE without offering any explanation. In short, there is no evidence that the employer failed in the obligation that it might have had to accommodate this extraordinary circumstance.

24For all of these reasons the Application is dismissed.