Jennifer Di Francesco v. Maranello Motors Limited, 2009 HRTO 1756

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Di Francesco

Applicant

-and-

Maranello Motors Limited

Respondent

DECISION

Adjudicator: Eric Whist

Date: October 23, 2009

Citation: 2009 HRTO 1756

Indexed as: Di Francesco v. Maranello Motors

APPEARANCES

Jennifer Di Francesco, Applicant ) Megan Burkett, Counsel

Marinello Motors Limited, Respondent ) Mark Mendl and Lisa Stam, Counsel

1The applicant, Jennifer Di Francesco, alleges in her Application that the respondent, Marinello Motors Limited, discriminated against her in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing took place over two days and I heard testimony from the applicant; the applicant’s parents, Katia and Terry Di Francesco; and six employees for the respondent: Steven Venturin, John Bianchi, Romi Masucci, Michael Venneri, Susan Ferri and Patrizia Beltran.

BACKGROUND

3The applicant was in a serious motorcycle accident on Saturday, May 24, 2008. At the time she was a probationary employee with the respondent, having been hired on March 17, 2008. On Tuesday, May 27, 2008, three days after the accident, the applicant’s employment was terminated by the respondent. The applicant’s principal contention is that her motorcycle accident and the fact she would be off work for an extended period of time were factors in the respondent’s decision to terminate her employment. The respondent argues that a decision to terminate the applicant because of poor performance had been made prior to the accident and consequently, the decision cannot be said to be tainted by any consideration of the applicant’s injury or disability.

DECISION

4I find that the there is persuasive evidence that the decision to terminate the applicant’s employment was made prior to her accident. I further find that there is no evidence that the respondents, having decided to terminate the applicant’s employment, decided to change the actual date of termination once they learned of her accident. Accordingly, I find there has been no violation of the Code and the Application is dismissed.

EVIDENCE

5The applicant was as employed by the respondent, a BMW car dealership, as its Customer Relations Co-ordinator (“CSR”). The applicant’s primary responsibilities were to book service appointments and to respond to customer complaints. I heard a great deal of evidence about the adequacy of the applicant’s work. The applicant endeavoured to show that she had carried out her job duties responsibly and argued that given her work performance had been good, the respondent’s decision to terminate her must have been, in some measure, a response to her accident and not wanting to accommodate the applicant and her injuries.

6The applicant adduced evidence to suggest that she had promptly and appropriately responded to customer complaints and had been able to fill the required data entry for customer service. She denied allegations that she swore in front of customers, was confrontational in her manner, or that she had planned personal activities on company time. The applicant’s parents testified that when they visited the respondent’s facility on May 9, 2008, they were told by Adrian Aragon, a senior manager for the respondent, that the company was fortunate to have the applicant and that the applicant was doing a good job.

7The applicant provided e-mails from Susan Ferri, the quality manager for the respondent that noted that “We are lucky to have you on board. I feel you have really grasped our procedures well” and “Your response was excellent, thank you for taking the time to respond in such a professional and sympathetic fashion. Excellent!”

8The applicant testified that she had never been disciplined by the respondent, had never been given written or verbal warnings and had never been told that her performance was less than acceptable prior to her termination.

9The respondent adduced evidence in an effort to show that the applicant’s performance had been inadequate, that she was poor at carrying out required tasks and ineffective in working with customers. The respondent also asserted that the applicant acted inappropriately by taking time for extended lunches and spending time on the Internet. The respondent did acknowledge that it had not communicated its concerns about the applicant’s poor performance to the applicant nor had it disciplined the applicant, stating that progressive discipline was not required by the company’s practices for dealing with probationary employees. The respondent argued that the three-month probationary period would not be long enough to institute discipline or progressive disciplinary measures and that the probationary period, by its very nature, is intended to be a period in which an employer can exercise greater flexibility in determining whether to keep an employee or not.

10I have provided only the briefest of summaries of what was a central focus of the hearing: the adequacy of the applicant’s performance. Ultimately, however, it is not necessary for me to come to any conclusions as to whether there were good grounds for the respondent’s assessment of the applicant’s job performance as this case turns for me on the evidence that the respondent adduced to show that the decision to terminate the applicant was, in fact, made prior to the applicant’s accident. I am satisfied that this evidence does indeed show that the decision to terminate the applicant’s employment was made before her accident and therefore could not have been influenced by that event.

11Steven Venturin, the respondent’s director of human resources, and John Bianchi, the respondent’s service manager and the applicant’s direct supervisor, both testified that they met on May 6, 2008, in order to review the applicant’s performance and determine whether they would keep the applicant past her probationary period. They testified that this type of review meeting is mandated by the company’s procedures and that the meeting generated a written report about the applicant’s performance and the company’s plans for the applicant.

12A “Probationary Review Report” dated May 6, 2008, and signed by both Mr. Venturin and Mr. Bianchi was before me. The report is essentially a form that allows for comments and recommendations. It identifies three specific performance concerns in relation to the applicant: “Not able to process cust. Survey info on timely basis”, “Planning personal activities on company time” and “Becoming confrontational with customers & concerns they had”. This suggests that the respondent did have performance concerns about the applicant.

13The form asks the subject’s manager to identify one of three recommendations: “I recommend confirmation of the employee’s permanent status”; “I do not recommend the employee’s confirmation as a permanent employee” or “I recommend an extension of the employee’s probationary period for a period of weeks/months”. The form indicates that the applicant was not being recommended as a permanent employee. Mr. Bianchi testified that it was he who made this recommendation and that this recommendation constituted a decision to terminate the applicant’s employment. Mr. Venturin similarly testified that Mr. Bianchi’s recommendation, as the applicant’s supervising manager, constituted a decision to terminate the applicant’s employment. Both Mr. Venturin and Mr. Bianchi testified that they signed this document on May 6, 2008.

14Both Mr. Venturin and Mr. Bianchi testified that a decision was then made to recruit for the applicant’s CSR position before formally terminating the applicant’s employment. Mr. Venturin testified that there was no need to advertise for candidates as the respondent’s human resources department was aware that Romi Masucci, a former employee, was looking for employment. Mr. Bianchi testified that he called Ms. Masucci to set up an interview, which was held over lunch on Friday, May 23, 2008, and that at the end of this interview he formally offered the CSR position to Ms. Masucci. Mr. Bianchi testified that Ms. Masucci immediately accepted the job with the proviso that she wanted to start on Monday, June 2, 2008, rather than Monday, May 26, 2008. This request was agreed to. Ms. Masucci formally signed her employee contract on Wednesday, May 28, 2008.

15Ms. Masucci testified that Mr. Bianchi called her in the first or second week of May asking her if she was interested in returning to work for the respondent and that an interview was arranged when she indicated her interest. She stated that the interview was delayed a week until Friday, May 23, 2008. She testified that the interview took place over lunch in a restaurant and that she agreed at the end of the interview to take the job providing that she could begin on June 2, 2008. She testified that she was told by a person in the Human Resources department, Norma Marino, and by Mr. Bianchi at the interview that there was someone currently in the job but that it was not working out.

16I had before me a bill for lunch on May 23, 2008, for two with the handwritten comment stating “meeting with pot. employ” and is signed J.B., which Mr. Bianchi testified were his signed initials. I also had before me an e-mail from Norma Marino to Adrian Adriano dated May 22, 2008, stating:

Sorry to bother you,

It’s regarding Jennifer- John would like to terminate her before ninety days. Date is June 10, 2008 (passing of three months).

She is not taking her job seriously-someone overheard her say on the phone “I can’t wait to get the hell out of here”

“I never last more than a couple of months anywhere”

“I’m so bored”

17I am satisfied, based on the consistent and credible testimony of Mr. Venturin, Mr. Bianchi and Ms. Masucci, and the documentary evidence of the Probationary Review Report dated May 6, 2008, that the respondent did have concerns about the applicant’s performance, did decide to terminate her employment and did recruit her replacement prior to May 27, 2008.

18The oral and documentary evidence was credible and reliable. For example, Mr. Bianchi and Ms. Masucci provided consistent details about Mr. Bianchi’s efforts to contact Ms. Masucci prior to the interview. I had before me the receipt for the lunch on May 23, 2008, and the May 22, 2008 e-mail described above that explicitly mentions the interest in terminating the applicant’s employment. There were passing references by all the witnesses to Mr. Aragon coming by at the end of the lunch to say hello to Ms. Masucci. There was consistent testimony from Ms. Masucci and Patrizia Beltran, the respondent’s warranty administrator and a friend of Ms. Masucci’s, that Ms. Masucci came by Ms. Beltran’s office on the afternoon of May 23 to tell Ms. Beltran that Ms. Masucci would be working for the respondent. This evidence, in its totality, leads to my conclusion that the decision to terminate the applicant’s employment and to hire Ms. Masucci had taken place prior to the applicant’s accident. I make this credibility finding mindful of the test for credibility set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) which states:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions…

Timing of the Termination

19There is a further significant issue to determine. The applicant contended that even if the respondent had decided that the applicant would not be kept past her probationary period it was possible that her termination was tainted by an inappropriate consideration of the fact that she had been injured. The applicant questioned whether the respondent might have simply initially decided that the applicant would be terminated at some point prior to June 17, 2008, the end of her probationary period, but chose to advance the actual termination date once the respondent came to know that the applicant had been injured. To support this argument, the applicant identified a number of concerns surrounding the events of Monday and Tuesday, May 26 and 27, 2008.

20The applicant testified that her mother first called the respondent on the morning of May 26 to tell the organization of the applicant’s motorcycle accident. In the afternoon, the applicant called the respondent. The applicant testified that she spoke to Mr. Bianchi and said she was not sure how long she would be off work and that Mr. Bianchi told her to take care of herself, not to worry and to take all the time that she needed. She testified that that the next day, Mr. Bianchi called her to say that the respondent was going in a different direction and that they were letting the applicant go.

21Mr. Venturin testified that a decision had been made on May 23 to terminate the applicant’s employment on Monday, May 26 and that the respondent’s normal practice with terminations was to do them in-person at the office. Mr. Venturin testified that he was not able to meet with Mr. Bianchi until Tuesday, May 27 at which time they conferred about what to do, given that the applicant was absent from the office. Mr. Venturin testified that he told Mr. Bianchi to go ahead with the termination by telephone.

22Mr. Bianchi also testified that the plan had been to tell the applicant she was terminated on Monday, May 26. He testified that he called the applicant on May 26 and left a message but believed he only spoke to her on May 27 or May 28. Mr. Bianchi testified that he asked the applicant how she was feeling and told her that he had something important to talk to her about. He testified that he then told her that they would not be keeping her as a permanent employee and her employment was terminated. He testified that he had conferred with Mr. Venturin before calling the applicant to discuss the termination and that they had agreed about going ahead with the termination by telephone.

23The applicant argued that it was improbable that the respondent’s plan had been to fire the applicant on Monday, May 26, as claimed. The applicant contended that Mr. Venturin had not formally approved Ms. Masucci’s hiring following her interview on May 23 and that terminating the applicant on Monday, May 26 made no sense given that Ms. Masucci did not formally sign her employment contract until Wednesday, May 28. It was argued that firing the applicant on the Monday left the organization without a CSR for a week, given Ms. Masucci was not scheduled to begin until June 2, and that this did not make good business sense and was, therefore, not credible. It was further noted that there was no formal termination letter prepared for the applicant which would indicate that the termination was planned for May 26, and no other documentary evidence to show that May 26 was the intended date of termination. Finally, it was argued that Mr. Bianchi’s statement to the applicant on Monday, May 26 telling her to take care and take as much time as she needed did not make sense if a decision to terminate the applicant’s employment had already been made.

24The respondent argued that its witnesses Mr. Venturin and Mr. Masucci were credible in describing the events surrounding the termination as they had been in describing the earlier decisions related to the applicant. Mr. Bianchi testified that he only spoke to the applicant once (on Tuesday or Wednesday) and only asked the applicant how she was feeling. There was testimony from several respondent witnesses to state that the responsibilities of the CSR position would be covered by other staff for the week of May 26-May 30. Finally, the respondents argued that there was no identifiable motivation for the respondent to change the applicant’s termination date because the respondent was not responsible for paying the applicant’s short-term benefits. In other words, there was no financial benefit to the respondent to terminating the applicant on May 26 rather than any later date up to June 17, 2008, the last day of her probationary period.

25Having considered the evidence and the arguments of the parties I am not satisfied that the respondent accelerated the applicant’s termination date because of her accident. In making this decision in light of the conflicting evidence I had before me, I give particular weight to two considerations. One, I accept as credible and reliable the evidence that the respondent offered Ms. Masucci the CSR position on May 23 and that she was to start on June 2 (after indicating that she could not start on May 26 as had been discussed). I find it probable, given these facts, that the respondent intended to move quickly to make a change in the CSR position and that would have involved terminating the applicant’s employment soon after May 23. The testimony of the respondent’s witnesses that the intended termination date was May 26 is persuasive in this context. I also give particular weight to the fact that there was no identifiable financial motivation or indeed other identified benefit for the respondent to change an intended later termination date to May 26 or May 27. If the respondent had intended to terminate the applicant on, for example, June 17, why would it change the date, particularly if the applicant was not going to be in the workplace during this period at all?

26In summary, the evidence before me was that the respondent did not want to keep the applicant as a permanent employee. And while the applicant vigorously challenged the fairness and reasonableness of the respondent’s opinions that she was not an effective employee, I am satisfied that the evidence clearly demonstrates that the respondent chose not to continue her employment prior to her accident. I further do not believe that the respondent may have accelerated the intended termination of the applicant’s employment by potentially a few weeks given the evidence before me.

27For all of the above reasons the Application is dismissed.

28Given my decision I have not outlined the applicant’s request for remedy and its supporting rationale. I also did not need to rely on any of the case law that was presented in order to arrive at my decision and therefore have not referred to it in my decision.