Dube v. Port Dental Centre, 2009 HRTO 2081

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Dube

Applicant

-and-

Port Dental Centre and Brian Stewart

Respondents

CASE RESOLUTION Conference DECISION

Adjudicator: Jim Dimovski

Date: December 2, 2009

Citation: 2009 HRTO 2081

Indexed as: Dube v. Port Dental Centre

AppearanceS BY

Laura Dube, Applicant ) on her own behalf

Port Dental Centre and Brian Stewart , ) Brian Stewart, on his Respondents ) own behalf and on behalf ) of Port Dental Centre

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges the respondents prevented her from returning to a job she held prior to her maternity leave. She also alleges she was subsequently “constructively” terminated from her employment on the basis of her family status and sex.

2The respondents allege that it was the applicant who proposed that she return to work, after the end of her maternity leave, to a new part-time position. Further, the respondents state that business considerations were directly related to the reduction in her hours, several weeks after her return to work, and not her family status or sex.

3A Case Resolution Conference (“CRC” or “hearing”) was held on June 11, 2009, 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. At the hearing, I heard testimony from the applicant and the personal respondent.

BACKGROUND

4Except as otherwise noted, the following facts are not in dispute.

5In June 2004, the applicant began her employment in the dual role of chairside dental assistant and receptionist. She earned approximately $22.50 per hour, and worked approximately 37 hours per week.

6On or about August 1, 2006, the applicant began her maternity leave and expected to return to work in August, 2007. Prior to taking her maternity leave, the applicant helped train CG, who had been hired to replace her while she was on leave.

7On or about May 24, 2007, after the birth of her child, the applicant approached her employer to discuss her expected return to work. The applicant advised the personal respondent (“Dr. Stewart) that she had enjoyed her pregnancy and anticipated conceiving again later that year. While she wanted to return to work she wanted to do so on a part-time basis, she alleges, as a transition back to her regular duties. In her testimony, she noted she had approached Dr. Stewart in May 2007, well before her expected return, so that he would have sufficient time to retain CG’s services.

8Dr. Stewart testified that prior to May 2007, his assumption was that the applicant would return to her pre-maternity job in August 2007. Instead, the respondents allege the applicant advised that she did not want to return to her previous hours of employment and proposed a change. He stated he was surprised with the applicant’s proposal. Nonetheless, he agreed that the applicant could return to work at reduced hours but at the same rate of pay. The respondents allege that this was done with the understanding that it would be on a trial basis in order to determine if the practice could support it.

9The applicant alleged that she proposed her return to work would include the performance of the same dual duties, same rate of pay, but at reduced hours. She stated that upon her return she shared the workload with CG. Shortly after her return to work in August 14, 2007, the applicant’s duties changed and she solely performed the dental assistant duties. She worked three days per week, five hours per day.

10In a letter dated October 15, 2007, the respondents confirmed an earlier discussion with the applicant the week prior, that effective November 1, 2007, her hours and rate of pay would be reduced to approximately ten hours per week, at $15 per hour. Dr. Stewart wrote the change reflected the slow down in the corporate respondent’s business which was caused by his dental partner’s medical leave. The applicant was also advised that her altered pay rate was to reflect the “normal” rate of pay for assistants.

11In a letter dated October 16, 2007, the applicant advised the respondents that she did not accept their proposal to become “permanent part-time” dental assistant. She noted that she was unhappy with the proposed arrangement and reminded them that she was entitled to her pre-maternity leave position as “stated through the labour laws”.

12By October 30, 2007, the applicant alleged that she had been constructively dismissed and as such she stopped working for the respondents.

13The applicant alleges that CG was kept on, and that she was denied a return to her pre-maternity leave position, that she was entitled to, because the respondents were aware CG would not take maternity leave herself because she “was no longer able to have children”. In her testimony, she also alleged that the respondents agreed that if the new position was not satisfactory that she could return to her pre-maternity leave position and replace CG.

14In her Application, the applicant pleads that she has been “discriminated against as a woman and as a mother of a young child who planned to have more children by being constructively dismissed…”

ANALYSIS

15After applying the applicable legislation and weighing the relevant evidence, including the parties’ testimony and submissions, I dismiss the Application for the following reasons.

THE MAY 2007 ARRANGEMENT

The Applicant’s Return to Work

16I find that there is no dispute that the applicant called the May 2007 meeting with her employer in order to propose her return to work on a different basis. She admitted she did not want to return to work in August 2007 to the job she had performed prior to taking maternity leave.

17Further, I find that the applicant’s evidence clearly supported that the respondents expected her to return to her old job. Indeed, she testified that she called the meeting in May 2007, so that the respondents would have time to retain CG. It was on her own accord, however, that she pursued, by negotiating in essence, a new job which would change her hours allowing more time at home with her baby. In my view, in light of her admission, had it not been the applicant’s decision to seek a new arrangement which would allow her stay home more, her employer expected her to return to her pre-maternity leave position upon the end of her leave.

The Promise of Return

18It is clearly the applicant’s belief, as expressed at the hearing, that she maintained some kind of right to return to her full-time employment, even after her maternity leave expired, and that the law supports her position. In her testimony, she noted that Dr. Stewart had agreed that she could return to her pre-maternity leave job if the new arrangement did not work-out.

19Dr. Stewart denied promising the applicant that she could return to her pre-maternity leave position if the new arrangement did not work out. As such, at the May 2007 meeting, he asked that the applicant take some time to consider her proposal because if it did not work out, they would part ways. Dr. Stewart testified that he did not prevent the applicant from returning to her pre-maternity job but accepted her personal decision not to return to it. He had assumed she would return to her old job and was surprised that she did not want to. He stated he was committed to trying out the situation since another employee could not commit to her usual hours of employment. In his view, he tried to accommodate the applicant because she had been a good employee in the past and since he had always tried to accommodate the needs of his employees.

20Unfortunately, the details of these arrangements was not recorded in writing although Dr. Stewart submitted his personal notes dated May 24, 2007, and June 4, 2007, corroborating his version of events. The latter note confirmed that the applicant had stated she wanted to work reduced hours. Even if I placed no weight on those notes, I find that there is still no persuasive corroboration of the applicant’s testimony that there was a promise made that she could return to her original job as dual receptionist/assistant, 37 hours per week.

21In addition to the lack of written record supporting the applicant’s testimony of a promise, her own documents more contemporaneous to the events in question, do not support an inference in her favour. In her letter to the personal respondent, dated October 16, 2007, she made no mention of a “promise of return” but requested her old job back as she was entitled to it “through the labour laws”. Further, there is no mention of such a promise either in her former lawyer’s correspondence to the respondents dated October 30, 2007 or her complaint dated December 13, 2007, which was filed with the Commission.

22Instead, the latter two documents noted that the May 2007 meeting and the arrangement agreed upon, was that the applicant would “transition” back to full-time employment. However, I also find her testimony did not support that a promise to return to an old job or a promise to transition from part-time to full-time was likely made by the personal respondent. Indeed, I found her testimony contradictory. For example, it was clear the purpose for which she approached her employer in May 2007, was to spend less time working away from home and more time with her child with the hope of conceiving another child as soon she could. She admitted she was well aware that if she conceived while working part-time hours, she would not enjoy the level of benefits she had been paid in 2006 and 2007. Nonetheless, she affirmed that her plan was to become pregnant as soon as she could.

23Moreover, in September, prior to her October discussions to reduce her hours and pay, the applicant was excited about a new opportunity to work for a financial company, part-time, mainly from her home. She started working as an executive assistant for this other company on October 1, 2007, prior to the responding parties advising her of her reduction in hours. I find her new part-time job is consistent with my view that her intentions were not to return, on a graduated basis, to full-time employment with the responding parties, but rather to spend more time at home.

24Additionally, the applicant’s excitement over her new opportunity and its future implications did not persuade me that she had any future intention of returning to full-time employment with the responding parties. While it may have been the applicant’s intention to return to full-time work, some time in the undefined future, her own testimony, supports that she had no defined intention of returning to her pre-maternity leave job either in May 2007, August 2007, or in October 2007.

25In my view, the balance of evidence does not support the applicant was promised a return to her old job if her new arrangement did not work out or that her arrangement included her return to her old job on a graduated basis. In this regard, I rely on her own documentary evidence more contemporaneous to the issue in dispute and on the contradiction outlined above in her testimony.

26The applicant submitted that she was entitled to her old job due to a Code enumerated ground. In this case, I find that the responding parties did not prevent the applicant’s return to her old position and that it was the applicant’s choice to return to work under a new arrangement. Accordingly, I do not find that the responding parties precluded her return to her pre-maternity leave job on the basis of her family status or sex.

TERMINATION DUE TO CODE ENUMERATED GROUND

27The applicant alleges her hours and pay were reduced because of her family status and sex. In particular, she alleged that she had been very forthright about conceiving another child as soon as she could and that the responding parties constructively dismissed her because of this, thus violating a Code enumerated ground. She noted that shortly after returning to work, she shared receptionist duties with CG but was then reassigned solely as an assistant. Also, she noted that CG was not capable of having children and it was on this basis that she was retained in the applicant’s pre-maternity leave job.

28In his testimony, the personal respondent related the decision to reduce the worker’s hours and pay directly to a slow down in business. From March 2007, the personal respondent and his partner (also a dentist), who normally worked together, were increasingly consumed with the health of their son. In addition to taking his time and focus away from his business, Dr. Stewart’s partner, also a dentist with the Respondent, took a leave of absence to be with their son which directly impacted business. By September 2007, as it became obvious his child’s condition would not improve, Dr. Stewart concluded that personal and business changes were required. Since business was slower, he stated he had less work for dental assistants and as a result he reduced the applicant’s hours by an additional 5 hours per week. He also noted that since she was solely performing the function of a dental assistant, she should be paid in accordance with the typical industry wage for that position, $15.00 per hour.

29In my view, the change in the applicant’s hours and wages were directly related to the respondents’ business considerations. This was not contested by the applicant. The applicant also admitted that $15.00 per hour was generally within the accepted industry wage range for a dental assistant. In her view, however, CG’s hours should have been reduced and not hers and since the “law” supported this, and since this did not occur, the reason for her reduced hours must have been due to discrimination.

30However, at the time, CG and the applicant did not perform similar positions. CG had taken over the receptionist area whereas the applicant performed assistant duties. In my view, this was directly related to the hours the applicant desired to work. While she testified that her arrangement included sharing some receptionist duties with CG, a week after her return, Dr. Stewart had her solely perform the duties of a dental assistant. She alleges that this was an example of differential treatment between her and CG.

31In my view, however, the applicant’s allegations relate to her belief that the “labour laws” supported her right to the job CG was performing, even after she changed the circumstances under which she was employed. The balance of evidence supports that the applicant was concerned with maintaining her rate of pay and her hours and it is only when those were threatened that she swiftly alerted her employer that she had entitlement to her old job. Indeed, she did not voice any complaints after the first week when she solely became an assistant.

32In any event, the new arrangement implied that the applicant could not return to the receptionist duties which she performed prior to her leave. It was also expressly acknowledged by Dr. Stewart that the new arrangement was agreed upon because another of his employees could not commit to a certain amount of hours. As such, I find that the applicant’s role of an assistant was consistent with the purposes behind each parties’ reasons for seeking and agreeing to the applicant’s new work arrangement.

33I do not find that both CG and the applicant performed similar duties thereby supporting that the reduction in the applicant’s hours were based, even partly, on the applicant’s family status and sex, as opposed to business considerations which impacted the entire office but most importantly, the applicant’s and CG’s positions differently. Indeed, the applicant’s position was directly affected by the amount of clients serviced by the responding parties. As such, with fewer clients the less need for the applicant’s service.

34Since I am not satisfied any specific arrangement or promise was made to have the applicant return, even on a graduated basis, to the position occupied by CG, which had been held by applicant previously, and since the applicant confirmed that the personal respondent was particularly understanding and supportive of her prior to reducing her hours, and that her hours and pay were reduced as a result of business considerations which impacted her new position directly, I am not satisfied that the respondents discriminated on the basis of family status and/or sex.

35In all the circumstances, after considering all the evidence, I am not satisfied the applicant can succeed. For all these reasons the Application is dismissed.