HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cynthia Murney
Applicant
-and-
1627074 Ontario Limited, Marc Sayer and Valerie Sayer
Respondents
DECISION
Adjudicator: Alan Whyte
Indexed as: Murney v. 1627074 Ontario Limited
INTRODUCTION
1In this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges discrimination on the basis of disability in her employment with 1627074 Ontario Limited (“the company”) against the company, Marc Sayer (“Mr. Sayer”) and Valerie Sayer (“Ms. Sayer”).
2A hearing was held in Windsor on June 17, 2009 and September 24, 2009, at which time I received evidence from the applicant, Mr. Sayer, Ms. Sayer and Karen Hart, an employee of Manulife Financial.
3The applicant's allegations of discrimination can be broken down into two areas; first, the applicant’s employment with the company of approximately 3 years duration, and secondly, the termination of the applicant by the company in September, 2008.
BACKGROUND
4The applicant started her employment with the company on August 1, 2005, on the basis of a letter of agreement between her and the company dated July 15, 2005. One of the terms of that agreement was that the applicant's regularly scheduled hours would fluctuate depending upon the needs of the company, but generally would be Monday, Tuesday, Wednesday and Thursday from 9 AM to 3:30 PM. Those were the hours that she worked from the commencement of her employment until July, 2006.
5The applicant was employed as a “marketing assistant” for the company, which involved such duties as answering the phone, greeting customers, maintaining customer files and generally supporting the administrative operations of the company.
6The company, which operates under the name “Horizon Financial Group”, is operated by Mr. and Ms. Sayer and functions as a financial advisor for its clients. It represents and has a significant volume of business with Manulife. Although the company has had (and now has) other financial advisors and employees in the office, in the timeframe relevant to this case, only the applicant and Mr. and Ms. Sayer worked in the office.
July 2006 - May 2008
7In late July 2006, the applicant was diagnosed with breast cancer. She underwent surgery and radiation treatment and from mid August, was confined to bed for a number of weeks, and received care from both her husband and home care. During August and September, there was occasional contact between the applicant and Mr. Sayer about her status.
8By late September, the applicant was advised that she would be required to undergo chemotherapy approximately every Friday between the end of September and early January, 2007. The applicant advised Mr. Sayer of this. The applicant alleged that Mr. Sayer told her that if she was not able to return to work by October 15, he would have to replace her. She said that she felt that her job was threatened and that she had no choice but to go back to work as required by Mr. Sayer. As of late September, the applicant had a number of weeks of E. I. sick benefits available to her, and she had been advised by her physician to not return to work as of mid October.
9Mr. Sayer denied the statements attributed to him and indicated that he was sympathetic to the applicant's situation, and that in fact he understood that the applicant wanted and needed (from a financial point of view) to return to work in mid-October. He pointed out that he had interviewed some replacement employees through a “temp agency” in the expectation that the applicant would be off work for approximately 2 to 3 months.
10Mr. Sayer also noted that his sister had been diagnosed with cancer and had gone through similar treatment as the applicant was experiencing. As such, he was very aware of the toll that the disease and the treatment of the disease would take on a person, and he was therefore very sympathetic to the applicant’s situation.
11The applicant returned to work on October 16, 2006. On that day, Mr. Sayer advised her that her hours were going to be changed to 9 AM to 2 PM, Monday to Friday. She would be afforded every second Friday off in order to permit her to receive her chemotherapy treatment. The applicant stated that she felt that this change in her hours of work was done intentionally in order to make her quit.
12Mr. Sayer stated that the reason that he changed the applicant’s hours was that the office required coverage on Fridays, as the fall season is typically busier compared to the summer. He also pointed to the term of the applicant’s employment that indicated that her scheduled hours would fluctuate depending on the needs of the company.
13The applicant was in considerable pain in the weeks following her return to work in mid October. She was required to take daily injections to maintain her immune system which was being compromised by the chemotherapy treatment. She was not able to take her prescribed pain medication to relieve her pain and suffering which affected her greatly each and every day that she was at work. It was all that she could do to stay at work and when she went home she could do nothing other than go to bed.
14Her evidence was that despite the fact she was obviously uncomfortable and in pain, neither Mr. nor Ms. Sayer (who was only in the office occasionally) inquired as to her well-being, and generally did not appear to be concerned about her.
15This evidence was rebutted by both Mr. and Ms. Sayer who indicated that they were quite concerned about the applicant, again because of their experience with Mr. Sayer's sister and her bout with cancer.
16On October 18, 2006, Mr. Sayer met with the applicant in order to counsel her with respect to two performance issues that he had identified during her absence and which related to work performed by her prior to her absence commencing in late July. She stated that she had never been counselled or disciplined on any previous occasion. The applicant indicated that she felt that she was being targeted and that again, efforts were being made by the respondents to have her quit.
17Mr. Sayer confirmed that he had provided the counselling session to the applicant in order to reinforce the need for her to be thorough in her handling of the clients’ paperwork, as otherwise the company could be exposed to liability if an error was made.
18The applicant alleged that as of the end of October, she had lost all of her hair and her face and head were swollen from the steroids that she was required to take to prevent nausea. She related an incident where Ms. Sayer came into the office, saw the applicant for the first time, smirked and then went into Mr. Sayer's office and shut the door. The applicant felt that Ms. Sayer was laughing at her but put Ms. Sayers’ conduct down to the fact that she was ignorant about what people suffering from cancer had to go through and that Ms. Sayer probably found the applicant to be “scary” in her appearance.
19Ms. Sayer categorically denied this incident in her evidence and indicated that she was fully sensitive to what people suffering from cancer experienced as a result of her exposure to Mr. Sayer's sister and her experience with the disease. She also stated that there was nothing unusual about the fact that she and Mr. Sayer were in his office with the door closed, as they often met behind closed doors in order to discuss personal or confidential business matters.
20The applicant alleged that on the same day, Ms. Sayer said to Mr. Sayer in the applicant’s presence that if Cindy (the applicant) could get back to work, then why couldn't Mr. Sayer’s sister. The applicant stated that this was the first time that she had heard about Mr. Sayer’s sister having cancer.
21Both Mr. and Ms. Sayer did not recall the incident as described by the applicant. They pointed out that Mr. Sayer’s sister had in fact worked virtually the entire time that she was receiving treatment for her cancer, and he denied that they would ever compare the applicant’s situation to that of Mr. Sayer’s sister, as they clearly understood that different people respond differently to cancer treatment.
22The applicant continued to experience severe physical symptoms as a result of her ongoing chemotherapy. In November, 2006, the applicant's bowels were so affected by the chemotherapy that they let go while the applicant was in the office. The applicant alleged that Mr. Sayer came out of his office, sprayed air freshener around the office, and said “it's musty in here”.
23Mr. Sayer did not recall any incident of this nature, although he did say that from time to time he sprayed air freshener around the office.
24The applicant said that she had told Mr. Sayer that as a result of her ongoing cancer treatment, her immune system was compromised and that she could not be around people who were sick. In her evidence, she alleged that Mr. Sayer came into the office on one occasion when he was suffering from a cold, drank a cup of coffee and read the paper for about 15 minutes, and then went home as he was too sick to work.
25Mr. Sayer did not recall being told by the applicant that she could not be around sick people, and he did not recall the incident related by the applicant, although he did say that if it occurred, he certainly did not come to the office in order to intentionally infect the applicant.
26The applicant received radiation treatments from January to March, 2007. Thereafter, she developed severe radiation burns in a sensitive area, requiring her to wear a burn net in this area. As she required some time off work, she contacted Ms. Sayer (as she felt more comfortable dealing with her on this issue than Mr. Sayer), and advised her of her need for time off. She alleged that Ms. Sayer told her that she could have a couple of days off only, as it was RRSP season.
27Ms. Sayer recalled the call from the applicant but had a different recollection as to its content. She said that she advised the applicant that she should take all the time that she needed to get better, but that the applicant said that she “should be back on Monday”.
28In August 2007 Mr. Sayer developed throat cancer and lived in Toronto in the fall of 2007 where he received treatment. During this time the applicant was often the only person in the office (as Ms. Sayer only came into the office occasionally) and kept the business going from an administrative point of view.
29Mr. Sayer returned to work in January 2008. In late January, the applicant developed blood clots in both her lungs and was hospitalized for one week. The applicant returned to work on February 4 as it was RRSP season and she felt that she had to return in order to keep her job. In the weeks following her return to work, she was required to receive treatment every morning at an urgent care center, which would from time to time cause her to be late in reporting to work. She advised Mr. Sayer that she would be late from time to time and he required her to send him an e-mail on the day prior to any day that she would be late. She had trouble complying with this as she did not know from day to day whether she would be late, which she tried to explain to Mr. Sayer, however he appeared to be annoyed by the fact that she was going to be late occasionally.
30The applicant also indicated that she underwent regular testing between January and May, 2008 related to her lung capacity, and that although she tried to schedule these appointments around her work hours, some appointments occurred during the work day. She felt that Mr. Sayer was irritated by her absences from the office. This allegation was not directly addressed by Mr. Sayer in his evidence, although he indicated that in general he was accommodating of the applicant’s need for time off to seek medical treatment.
Temporary layoff
31The applicant stated that in mid-May, 2008, Ms. Sayer asked her in the office one day when she was going to receive her “all clear”, to which the applicant responded that she would never receive an all clear due to the nature of cancer. The applicant was laid off two days later.
32Ms. Sayer vigorously denied that she had ever asked the applicant as to when she would be all clear, and she explained that she knew that there was no such thing in relation to cancer.
33By early 2008, the financial effect of Mr. Sayer's prolonged absence from the office in the latter half of 2007 was being felt in the company's business. During Mr. Sayer's absence, there was very little new business written, and as there is a three month delay between the time that the new business is done and the time for payment related to that business, the company's cash flow was severely affected in the first few months of 2008. A summary of the financial results of the company for the years ended August 31, 2007 and 2008 prepared by the company's accountant was entered into evidence. It demonstrates that there was a 52% decline in revenue in 2008 versus 2007, and that there was a loss of $50,000 in 2008 (versus a profit of $29,000 in 2007), resulting in a total decline in net income of approximately $78,000 from 2007 to 2008.
34Because the applicant was involved in the administration of the company's client files, she was aware that the volume of business of the company was significantly down in early 2008. She indicated that there were discussions between she and Mr. Sayer about the company's business situation. Although she said that she had suggested that she be laid off, the applicant also said that she was surprised when she was laid off on May 15.
35The applicant was provided a layoff letter dated May 15, 2008 which stated as follows in part:
As discussed, this letter represents your official notice of layoff effective May 15 due to a significant decline in company revenue while Mark was receiving and recovering from cancer treatments. Your last day of work will be Friday, May 15, 2008. This layoff will be for an indefinite period of time as we have decided to re-evaluate how we are conducting our business.
Despite this terminology, the applicant understood that the layoff was temporary until the company's business returned as a result of Mr. and Ms. Sayer both working in the office.
36Mr. Sayer's evidence was that he and the applicant had two or three discussions within the 3 to 4 weeks prior to the applicant's layoff on May 15 about the possibility if not probability of that layoff occurring. He indicated that the applicant brought it up first, and that she had told him that she wanted it to happen sooner than later because of advice that she had received from a friend who worked at E.I. to the effect that her claim would be maximized based on the hours that the applicant worked in 2007 when Mr. Sayer was absent from work. He said that the applicant received about one week’s informal notice of his decision to lay her off temporarily.
Termination
37The next contact between the applicant and Mr. Sayer occurred in early August. The applicant’s evidence was that she and Mr. Sayer had a lengthy telephone conversation about the needs of the company's business and the fact that he wanted to have a licenced marketing assistant who could perform some marketing/sales functions, within the regulations set by the Mutual Fund Dealers Association. The applicant stated that she told Mr. Sayer that she was interested in becoming licenced, and that Mr. Sayer had pointed out how hard it would be for her to get licenced, and that he asked her if she thought she was up to it both physically and mentally. According to the applicant, the result of that conversation was that Mr. Sayer was going to contact Manulife to determine the process that would have to be followed for the applicant to become licenced. The applicant felt that she was capable of securing the necessary licence because she had received a diploma from the Academy of Learning in the accounting clerk course in 1998 and had taken credit courses from Manulife related to certain software programs utilized in the insurance industry.
38On August 11, the applicant sent a follow-up e-mail to Mr. Sayer as she had not heard back from him following their telephone conversation. On August 12, Mr. Sayer replied and indicated that he was waiting for an updated job description from Manulife. He went on to say that he and Ms. Sayer had decided to require their new marketing assistant to be licenced for both mutual funds and life insurance, and that the marketing assistant would be expected to generate a minimum of $3000 per month in commission revenue for the business. The e-mail finished by Mr. Sayer asking the applicant whether she wished to pursue the matter given her lack of experience with sales and prospecting, and he suggested that there was a need to discuss how the applicant would approach those new responsibilities. The applicant replied on August 12 to indicate that she was interested and she would like to know how the process would work.
39On August 19, Mr. Sayer sent an e-mail to the applicant indicating that he and Ms. Sayer felt that the applicant did not have the experience that they needed for a sales/admin support staff. He went on to indicate that they really needed a skilled financial advisor, and that they had identified a few candidates and as well had found two University grads who were already licenced and selling. Mr. Sayer pointed out that the applicant would need about one year just to get licenced and then another one to two years before she would be comfortable selling on her own without the Sayers’ help. He finished by saying that he would keep the applicant posted on how the interviews went, but that at that point in time, they would probably not be bringing her back.
40The applicant followed up with Mr. Sayer on September 5 by e-mail and he replied to her the same day. He advised her that an offer had been made to a father and daughter team, both of whom were licensed. He went on to explain the rationale for needing the marketing assistant position as a dual role selling and generating revenue as well as performing administrative functions. He stated that while the applicant did fulfill the administrative role well, they (the Sayers) needed a broader level of experience to fill the selling role that they had been lacking. The e-mail went on to express the fact that the Sayers had enjoyed working with the applicant, and a letter of reference was offered by them. At this time it was clear that the applicant’s employment was terminated and there was no possibility of recall from her layoff into the same or a different position.
41The applicant stated that despite the respondents’ promise in the September 8 e-mail to pay her two weeks termination pay and vacation pay on her next pay period, it was necessary for the applicant to file a complaint with the Minister of Labour to enforce the provisions of the Employment Standards Act. The monies owed to the applicant were ultimately paid at the end of October, 2008.
42Both Mr. and Ms. Sayer gave evidence about the May to September 2008 timeframe, and in particular, their deliberations and decision making related to the new business model that they decided to implement in their financial planning business operated by the company. Their evidence, which was consistent, was that they felt a new business model was required in light of the fact the business’ revenue fell significantly during Mr. Sayer's absence from the office due to illness. They also referred to the fact that they had a young family and Ms. Sayer wanting to spend as much time with the children as possible, and that the cancer scare that they had experienced with Mr. Sayer had given them a new outlook on life and in particular the importance of their children in their lives. They decided that in case either of them was afflicted by a lengthy illness again, they needed to have a third producer in the office in order to sustain the business. Although the model changed and evolved over time, they ultimately decided that they needed a full-time producer and a marketing assistant. The latter position would produce income of approximately $3- 4000 per month, and would also perform the administrative tasks which had previously been performed by the applicant.
43Although they interviewed a number of people, they ultimately settled on a father and daughter team who were known to them through Mr. Sayer's golf club. Both worked in a well-established income tax/accounting business with a stable of approximately 600 clients. The Sayers felt that there was a natural fit between their business and the Sayers’ business, in that the Sayers would benefit from referrals from the other business. In addition, the father, who was older, would at some point retire and the daughter, who was 23 years old and held a university degree, could move into the business. Mr. Sayer acknowledged that both at the time of their hire and at the time of the hearing in this matter, neither the father or daughter were licenced.
44With respect to Mr. Sayer’s statements in the e-mails referred to above to the effect that the father and daughter team were licenced, Mr. Sayer indicated that it was his intent to “let the applicant down softly” by making that representation to her. He acknowledged that it was probably a mistake to do it in that way.
45Mr. Sayer had a slightly different version of events from that described by the applicant in relation to their contact to the August timeframe. Regarding the call that took place between them in early August, Mr. Sayer indicated in cross examination that he did not provide any information to the applicant about the process that she could follow in getting licenced. With respect to the August 12 e-mail sent by Mr. Sayer to the applicant, he explained that that e-mail only dealt with his efforts to provide to the applicant an updated job description from Manulife for the marketing assistant position, but did not deal with the requirement for the applicant to become licenced. He suggested that it was her responsibility to provide an “action plan” to him as to how and within what timeframe she would become licenced in order to fulfill the duties of the marketing assistant position. He also said that there was a second telephone discussion between he and the applicant, sometime between August 12 and 15, in which he indicated to her that he needed to receive her action plan by August 15, failing which he would have to move on with his efforts to recruit an outside person as marketing assistant. Mr. Sayer said that as he did not receive anything from the applicant by August 15, he assumed that she did not intend to pursue the licensing that was required for the marketing assistant position.
46The applicant vigorously denied that any such second telephone call occurred, and she produced her detailed telephone records for the timeframe in question. She pointed out that those telephone records do not reflect any phone call from the respondents’ phone number in the August 12-15 timeframe.
47Karen Hart, who is a Mutual Fund Branch Manager at Manulife Financial, provided evidence relating to the duties and responsibilities of a marketing assistant and described the process by which a marketing assistant would become licenced. A marketing assistant is not able to perform the full role of a financial advisor but is able to perform some selling activity in relation to the existing clients of the business. The licensing process involves an online course of self-study (which takes from one month to one year depending on the financial knowledge of the candidate), a background check which takes about one week, and approval by the Ontario Securities Commission which takes about one month.
ISSUES
48These facts give rise to the following issues to be decided:
Did the respondents discriminate against the applicant on the basis of her disability during the course of her employment with the company?
Did the respondents discriminate against the applicant on the basis of her disability in deciding to not hire her for the marketing assistant position?
If the answer to either question one or question two (or both) is yes, what remedies are appropriate?
ANALYSIS AND DECISION
49The law is clear that the initial onus is on the applicant to make out a prima facie case of discrimination, at which point the burden falls on the respondent to bring forward a non-discriminatory explanation of the events or to otherwise demonstrate that a violation of the Code has not occurred.
50This case has been difficult to decide because the credibility of the parties, which was with certain exceptions that will be noted, generally sound. In assessing the evidence of witnesses, the Tribunal has made use of the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):
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…
51Regarding the allegation that the applicant was forced back to work on October 16, 2006, I find that the respondents have not rebutted that allegation. It is clear that at that time, the applicant's medical condition was very poor and furthermore, her medical advice was against her returning to work in mid-October. In addition, she had a number of weeks remaining on her EI sick benefits claim during which she could have drawn benefits. These circumstances suggest that it was likely Mr. Sayer's requirement that the applicant return to work on October 16 that caused her to return to work on that date.
52The applicant alleges that the fact that her hours were increased on the day that she returned to work was discriminatory. I find that that allegation is not made out. The terms of the applicant's employment contemplated that the hours of work might be changed to suit the businesses’ needs. Although the timing of the discussion was perhaps unfortunate, it appears that Mr. Sayer considered the accommodation of the applicant’s disability in relation to his business need to have her hours of work increased at that point in time, by discussing with her how the business need could be balanced with her need for time off every second Friday in order to receive chemotherapy treatments.
53With respect to the applicant's allegation that Mr. Sayer's counselling of her on October 18, 2006 regarding her job performance was discriminatory, I find that it was not. It was an important part of the applicant’s job to ensure accuracy in the clients’ information and files in general, and Mr. Sayer had discovered during the applicant's absence in the summer certain areas which raised a concern in his mind. He did not overreact and discipline the applicant; rather, he engaged her in discussion about the importance of accuracy in her work. He did not discriminate against her by doing so.
54Regarding the applicant’s allegation of Ms. Sayer smirking on first seeing the applicant at work, and then going to Mr. Sayer's office and closing the door, having heard Ms. Sayer's evidence on this point I find that this allegation is not proven. Given Ms. Sayer's knowledge of how cancer affects people (through her exposure to Mr. Sayer's sister), I find it to be unlikely that these events occurred in the manner described by the applicant.
55The applicant also raised an issue with respect to Ms. Sayer's comment which compared the applicant’s ability to return to work to that of Mr. Sayer's sister. I find that comment was not discriminatory in nature in relation to the applicant, as it reflected on her in a favourable as opposed to an adverse way.
56Regarding the incident where the applicant's bowels let go in the office and Mr. Sayer sprayed air freshener, although I find that the incident occurred, I do not find, on the evidence before me, that there was discriminatory conduct. There was no evidence that Mr. Sayer was aware that an incident of this nature might occur or that on this occasion it had in fact occurred. In these circumstances, there is nothing that would allow me to draw a link between Mr. Sayer’s actions and the applicant’s disability.
57With respect to the allegation that Mr. Sayer came into the office with a cold when he knew that any exposure on the part of the applicant to illness could seriously affect her, I find that Mr. Sayer's conduct in the circumstances was not discriminatory. He came to the office feeling unwell, stayed for only 15 minutes, and when he continued to feel poorly, he left for the day. I am not satisfied that the applicant made it clear to Mr. Sayer that she was not to be in the company of anyone who had any degree of sickness, for any period of time. For that reason, I need not determine whether such a request would have been a reasonable or necessary form of accommodation required under the Code.
58Regarding the discussion between the applicant and Ms. Sayer about time off after the applicant revealed to Ms. Sayer that she had experienced radiation burns in a sensitive area, I find that the applicant has not proven this allegation. Ms. Sayers’ evidence, which I accept, was that the applicant indicated that she would be in to work in a few days.
59The applicant alleged that Mr. Sayer was annoyed about the fact that she had to take time off in early 2007 for medical treatments in the morning. Although he requested that e-mails be provided whenever possible by the applicant to alert him that the applicant would be late the following morning, there is no evidence that when such e-mails were not forthcoming, the applicant suffered any adverse consequences from Mr. Sayer.
60With respect to the allegation that Ms. Sayer asked the applicant whether she would be "all clear" and then the applicant was laid off two days later, I find that in all the circumstances this comment, even if it was made, did not lead to the applicant’s temporary layoff in mid-May. The applicant herself gave evidence that she had discussions with Mr. Sayer about the downturn in the company's business in early 2008, and that she had asked to be laid off sooner rather than later. Accordingly, the applicant has not proven any causation between Ms. Sayer's comment (if it was made) and the applicant’s temporary layoff. Consequently, I find that the applicant's layoff in May 2008 was unrelated to her disability and not discriminatory.
61That brings us to the question of whether or not the termination of the applicant in September 2008 constituted discrimination on the basis of her disability. The respondents have brought forward an explanation based on such business considerations as the need for a new business model, the desire on the part of Mr. and Ms. Sayer to focus more on their children (and the related desire on the part of Ms. Sayer to work only part-time), the fact that they had a new outlook on life as a result of Mr. Sayer's cancer scare, and the need for a third producer in the office to carry the business during any future downturns as a result of personal illness or otherwise. I accept that these were valid and proper considerations, however I have concerns about certain aspects of the evidence led by the respondents, both documentary and oral.
62Starting with the documentary evidence, I find that the exchanges of e-mails between Mr. Sayer and the applicant in August 2008 serve as the best evidence of their dealings at the time, given that their memories will have faded in the year since those events, and as well, will be affected by the usual self interest of parties to litigation. As background to the e-mail exchanges, it is clear from the evidence of both the applicant and Mr. Sayer that they had a lengthy conversation in early August about, from the respondents’ point of view, their future business needs, and from the applicant's point of view, her interest in being considered for any new positions that would be created by the company to address those future business needs.
63On August 11, the applicant sent an e-mail to Mr. Sayer advising that she hadn't received any information from him yet on the licence. From that it can be inferred that one outcome of the conversation in early August was that Mr. Sayer had undertaken to provide some information to the applicant about the licensing process that the applicant would have to undergo if she was to be hired as the marketing assistant. Mr. Sayer replied to that e-mail the next day and indicated that he was waiting for an updated job description from Manulife. He went on to indicate that he and Ms. Sayer had decided to require that their marketing assistant be licenced for both mutual funds and life insurance, and that that assistant would be expected to generate a minimum of $3000 per month in commission revenue. In this e-mail, Mr. Sayer asked the applicant to advise ASAP if she wanted to pursue this (i.e. the marketing assistant position), and he commented that they would have to discuss how the applicant would approach the new responsibilities of sales and prospecting in light of her lack of experience in those areas.
64The applicant replied almost immediately and said "yes, this is something I am interested in so let me know how this will work". Mr. Sayer did not reply to this e-mail until August 19, one week later. However, he said in his oral evidence that there was a telephone discussion between he and the applicant sometime between August 12th and 15th, in which he emphasized the importance of the applicant getting a plan to him about how she would become licenced by no later than August 15. He went on to say that as the applicant failed to provide her plan by that deadline, he decided to go in another direction. The applicant vehemently denied that any such conversation ever took place.
65I accept the applicant's evidence on this point. The applicant produced her phone records for the August 12-15 timeframe, and they did not reveal any call from the company’s business number (or the Sayers’ personal number for that matter). Perhaps even more telling is the content of the August 19 e-mail from Mr. Sayer, which is quite lengthy and which was obviously written by Mr. Sayer to explain to the applicant why she will likely not be getting the marketing assistant job. There is no reference in that e-mail to the applicant's failure to supply a plan regarding her becoming licenced (in fact, no such reference appears in any of Mr. Sayer's e-mails). The e-mail focuses on the applicant's lack of experience in the sales area and the fact that the company has found some possible prospects who Mr. Sayer wishes to interview. Most telling is the following sentence from this e-mail: "… we also have found two university grads who are already licenced and selling who are interested as well." The e-mail also said "The only thing you have against you at this point is that we need someone up to speed very quickly 30 - 60 days, and you are probably looking at one year just to get licenced and then 1 - 2 years before you will be comfortable selling on your own without our help”. Clearly Mr. Sayer is representing to the applicant that it is very likely that the successful candidate for the marketing assistant position will need to be licenced, and that the time the applicant will take to become licenced puts her at a competitive disadvantage. It is very likely that the reference to the two University grads mentioned above is a reference to the father and daughter team who were ultimately hired by Mr. Sayer.
66On September 5, the applicant e-mailed Mr. Sayer to ask him whether he had made a final decision yet. Mr. Sayer replied on the same day and communicated Ms. Sayer's and his decision to not hire the applicant in the marketing assistant role. The reasons that were given for that decision were that a father and daughter team have been hired and that both were licenced. He went on to explain that the daughter would spend about 70% of her time as a marketing assistant, and 30% of the time selling. He stated that they (Ms. Sayer and he) felt that they needed to have a marketing assistant position as a dual role selling and generating revenue as well as looking after the administrative needs of the business.
67Mr. Sayer's evidence at the hearing was that neither the father or daughter are currently licenced, that the father is in the process of getting licenced, and that the daughter will likely start that process after the busy season. Clearly, the requirement to be licenced which was represented to the applicant by Mr. Sayer to be a key requirement for the marketing assistant position is not in fact that key. Given Ms. Hart's evidence about the limitations on an unlicenced assistant in a business such as that of the company, the daughter cannot have been selling or generating revenue for the business as she has been unlicenced.
68I find that Mr. Sayer misrepresented the reasons for his decision to not hire the applicant for the marketing assistant position to the applicant . Mr. Sayer, in an effort to explain his misrepresentation to the applicant, said that he "wished to let the applicant down softly"; I view that to be an inadequate explanation. I also find that Mr. Sayer misrepresented to the Tribunal the reasons for proceeding as he did, in particular the suggestion that the applicant failed to provide a plan to him by August 15 as to how she would become licenced. Furthermore, the statement made by Mr. Sayer in the telephone conversation in early August about whether the applicant was up to the new job both physically and mentally raises a clear apprehension that the applicant’s health was on Mr. Sayer’s mind and casts doubt on his explanation. For these reasons, I have rejected Mr. Sayer's credibility on these key points, and I therefore cannot be satisfied as to the true reasons for Mr. Sayer's decision, and in particular, I cannot be satisfied that the applicant’s disability did not play a part in his decision making. Accordingly, I find that the company and Mr. and Ms. Sayer (as it appears from the e-mails that both participated in the decision-making pertaining to the applicant) personally discriminated against the applicant in not hiring her for the marketing assistant position.
REMEDIES
Special damages
69The applicant was terminated by the company on September 5, 2008. As of the date of the hearing on September 24, she remained unemployed, which is likely at least partly attributable to the poor state of the Windsor economy. She gave evidence as to the job search efforts that she made, which was not challenged by the respondents. She is entitled to be compensated for her lost wages from that date until September 24, 2009, at the rate of $13.80 per hour for 25 hours of work per week.
General damages
70The applicant is also entitled to an award of general damages. In addressing this, I have taken into account the following factors which were set out at paragraph 153 of ADGA Group Consultants Inc. v. Lane 2008 CanLII 39605 (ON S.C.D.C.):
Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.
71The applicant found her termination very difficult. She indicated that once that occurred, she went to her family doctor's office where she couldn't stop crying. She said that she had never been fired and in fact had never missed a day of work.
72She enjoyed working at the respondents’ company and she has found being unemployed very difficult. Much of her evidence as to the effect of the respondents’ actions on her related to the timeframe during which she was employed by the company (a period during which I have found the respondents engaged in only one act of discrimination) which is not surprising given that she was in a vulnerable state during that time as a result of her cancer and the treatment of it. Nevertheless, she was still a cancer survivor in the summer of 2008 when she sought to be re-employed by the company, and was therefore vulnerable. There is no doubt that her self-respect, dignity and confidence were adversely impacted by the respondent's decision to not hire her for the marketing assistant position. In addition, the fact that the respondents in effect forced her back to work in October, 2006 (shortly after a cancer diagnosis and subsequent treatment) would have had a significant impact on her and her health at the time.
73A factor which operates in the respondents’ favour is the manner in which the "termination" took place. The company did engage in a process with the applicant relating to the possibility of her moving into the marketing assistant position, and did not arbitrarily or abruptly cut off that opportunity. Thus this case differs from many others which have come before the Tribunal which have involved much more brutal facts than this case.
74In the circumstances, I assess the general damages at $10,000, which is in line with recent awards of the Tribunal involving similar facts.
Interest
75There is no reason why the applicant should not receive prejudgment interest on the special and general damages from the date of the Application to the date of this Decision, as detailed in the order set out below.
Future compliance remedies
76In her Application, the applicant sought the posting of the Code in a prominent place in the workplace, the provision of a copy of this Decision to any current or future employees, the development of an anti-discrimination policy (and distribution to all current and future employees) and a request was made for human rights training in the workplace.
77In addressing these requests, I have considered the fact that the company is a small family run business with few employees and that it is quite likely that the exposure to the Tribunal process (and the result of that process) has been a learning experience for Mr. and Ms. Sayer.
78I believe that the development of an anti-discrimination policy would be beneficial for the Sayers and the company going forward. I order that such a policy be developed at the company’s expense within four months of the date of this Decision with the assistance of a consultant or lawyer having expertise in human rights. Such policy should be provided to all employees of the company (current and future) within 14 days of its finalization in the case of existing employees, or within 14 days of the date of hire for new employees.
79The posting of the Code is not necessary in view of the development and distribution to all employees of this policy. Neither is the training in light of the fact that the principals of the business, Mr. and Ms. Sayer, are the persons who will continue to make the human resources decisions in the business. The distribution of this Decision to all employees is unnecessary as it is available on the internet to all those who are interested.
ORDER
80The Tribunal therefore orders the following:
(a) payment of loss of wages in the amount of $18,906.00;
(b) payment in the amount of $10,000.00 as compensation for injury to dignity, feelings and self-respect;
(c) payment of pre-judgment interest on the above sums from the date on which the applicant filed her Application, the interest to be calculated by reference to the rates set for each of the relevant quarters;
(d) payment of post-judgment interest on any accumulated principal and pre-judgment interest from the date that is thirty days after the date of this Decision, at the rate set for the quarter in which the accumulated principal and interest remains outstanding;
(e) an anti-discrimination policy be developed at the company’s cost within four months of the date of this Decision with the assistance of a consultant or lawyer having expertise in human rights. Such policy should be provided to all employees of the company within 14 days of its finalization for existing employees and within 14 days of the date of hire for any new employees.
Dated at Toronto, this 14th day of December, 2009.
“Signed By”
Alan Whyte
Adjudicator