HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sui-Fun Chan
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Tai Pan Vacations Inc.
Respondent
Decision
Adjudicator: Eric Whist
Indexed as: Chan v. Tai Pan Vacations
APPEARANCES
Sui-Fun Chan, Complainant ) Avvy Yao-Yao Go, Counsel
Ontario Human Rights Commission ) Bay Ryley, Counsel
Tai Pan Vacations Inc. ) Natalia Chang, Counsel
Introduction
1The complainant, Sui-Fun Chan, also known as Fanny Chan (“Ms. Chan”), alleges that the respondent, Tai Pan Vacations Inc., (“Tai Pan”) discriminated against her for having filed a previous complaint with the Ontario Human Rights Commission (the “Commission”) and on the basis of her sex contrary to sections 8, 5(1) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2Ms. Chan’s previous complaint was filed with the Commission on February 24, 2006. It alleged that Tai Pan subjected the complainant to differential treatment after she told Tai Pan in December 2005 that she was pregnant. This complaint was settled by the parties approximately one year later on March 12, 2007. On April 3, 2007, approximately three weeks after this settlement, Tai Pan terminated Ms. Chan. Ms. Chan contends that her termination was in reprisal for her earlier complaint. She further contends that her termination was related to her stated intention to become pregnant again and thus her termination is an act of discrimination based on sex.
3Ms. Chan also states in her current complaint of April 22, 2007 that, prior to her termination, Tai Pan subjected her to a number of reprisals, threats of reprisals and further discriminatory acts based on her interest in becoming pregnant. These alleged actions or incidents all took place in the twelve month period between the filing and settling of her first complaint. According to Ms. Chan, the reprisals included the withholding of a financial bonus and two salary increases as well as the opportunity to attend a number of special events that were relevant to her job. The threats of reprisal included a warning that she would cease to work for Tai Pan if she was to become pregnant again and a warning that if she wanted to receive her bonus and a salary increase she would have to withdraw her human rights complaint.
4The respondent denies that Ms. Chan’s termination was an act of reprisal or discrimination based on sex. The respondent submits that Ms. Chan’s termination, which was without cause, was within Tai Pan’s prerogative given that the company met its obligations under relevant employment law.
5The respondent further argues that Ms. Chan’s first complaint was settled in good faith and that the conditions of the release contained in the minutes of settlement concluding this complaint are a bar to Ms. Chan now asking the Tribunal to consider actions that occurred prior to this settlement as acts of reprisal or discrimination in the context of her current complaint.
6In the alternative, the respondent argues that these actions identified by the complainant in her current complaint are not acts or threats of reprisal or acts of discrimination based on sex. The respondent contends that the issuing of bonuses and salary increases and the sending of staff to special events were discretionary management decisions. The respondent argues that there were issues related to the complainant’s job performance. The respondent argues that there was no discrimination when Ms. Chan made known that she intended to get pregnant noting that pregnant employees of Tai Pan who need accommodation are assigned to office work, usually in the respondent’s call centre.
The Complaint and Proceeding
7The current complaint was filed with the Commission on April 22, 2007 and referred to the Tribunal on April 16, 2008. In an Interim Decision dated October 24, 2008 the Tribunal determined that the personal respondent, Fion Tran, was to be removed as a party to the proceeding (2008 HRTO 191).
8A hearing to deal with the merits of the complaint was held over three days. The Commission called Ms. Chan as a witness; the respondent called Stella Tran, Tai Pan’s Vice-President, and Wendy Chan, Tai Pan’s Director of Human Resources, as witnesses. The parties disclosed documentary evidence related to the complainant’s employment with Tai Pan including job descriptions, performance evaluations, work schedules and documents related to the complainant’s salary and bonuses and her termination. Other disclosed documents related to Ms. Chan’s previous human rights complaint and her efforts to find employment after she left Tai Pan.
9Although most of the evidence and submissions of the parties focussed on the alleged acts of reprisal and discrimination that took place in the 12 month period between when Ms. Chan filed and settled her first complaint, my decision on whether there is a violation of the Code is based only on a finding in relation to Ms. Chan’s termination.
Decision
10I find that Ms. Chan’s termination is an act of reprisal for the complainant having filed an earlier complaint with the Commission. I am of the opinion that Ms. Chan’s termination is a wilful and egregious violation of the Code and I award compensation and restitution accordingly and make orders to ensure future compliance with the Code. I do not find there is sufficient evidence to conclude that the termination also constitutes an act of discrimination based on Ms. Chan’s sex under section 5(1) of the Code.
11I have not made findings in relation to the alleged acts of reprisal and discrimination that occurred prior to the settling of the complainant’s first complaint. I am of the opinion that these acts should not form part of the current complaint. I find that they are precluded by the conditions of the written settlement signed by the parties to resolve the complainant’s first complaint. Specifically, the wording of the release included in the minutes of settlement and the nature of the settlement itself suggest to me that, at the time the minutes of settlement were signed in March 2007, Ms. Chan was agreeing to settle all known issues in dispute and release the respondent from any further human rights complaints based on these issues.
Background
12The complainant began working for Tai Pan as a customer service representative (“CSR”) on October 13, 1999. Tai Pan is a travel company that operates in the Metropolitan Toronto area. The company’s principal business is operating tour buses to the Casino Rama casino. Ms. Chan’s duties included accompanying customers to Casino Rama, facilitating customers’ entry into the casino and generally being hospitable in a manner that would help build customer loyalty to Tai Pan.
13In December 2005 the complainant told Tai Pan management that she was pregnant. Ms. Chan asked for a transfer to an office position but was told by the respondent that no such positions were available and that she would have to be put on unpaid leave. In February 2006 the complainant suffered a miscarriage and shortly thereafter returned to work in her CSR position. She filed her first complaint with the Commission on February 24, 2008 alleging that Tai Pan’s decision to put her on unpaid leave during the period of December 2005 to February 2006 was discriminatory.
14This complaint was settled on March 12, 2007. A copy of the minutes of settlement were adduced as evidence by the respondent and the complainant had no objections to the specifics of this settlement being disclosed. The minutes include a provision that the complainant be paid for seven weeks of lost wages during the period of December 2005 to February 2006 and for the bonus she did not receive from Tai Pan in June 2006.
Evidence
15In her evidence, Ms. Chan provided a history of her overall work experience at Tai Pan which included a detailed account of the seven specific actions or incidents which form the basis of her current complaint. Six of these incidents or actions took place in 2006, between the filing and settling of Ms. Chan’s first complaint. While ultimately my decision centres on a finding in regard to the seventh action – Ms. Chan’s termination in 2007 – it is helpful to provide a brief summary of the evidence related to all of these actions or incidents.
Meeting with Fiona Tran
16Ms. Chan testified that in May 2006 she was asked to meet with the then vice president of Tai Pan, Fiona Tran. The complainant testified she was asked by Fiona Tran why she had made her human rights complaint before Ms. Tran went directly on to say that it did not make sense for Ms. Chan to work for the company. According to Ms. Chan, Fiona Tran then stated that if the company was to raise wages it would not include the complainant. Ms. Chan testified that when she then told Fiona Tran that she planned to get pregnant again and asked whether the company would again prevent her from working. Fiona Tran allegedly stated that Ms. Chan would not be allowed to work if she became pregnant.
Awarding of Bonus
17Ms. Chan testified that in June 2006 she did not receive the annual bonus notwithstanding that she had regularly received this bonus in the past and that she was an excellent employee (of note, the bonus awarded in June 2006 would have been for work done from July 2004 to June 2005). Ms. Chan testified that the bonuses at Tai Pan were tied to job performance. Ms. Chan stated that prior to 2004 staff were informally evaluated on an “A” “B” or “C” scale with those receiving an overall “A” being awarded a 5% bonus, those receiving a “B” being awarded a 2.5% bonus and those receiving a “C” not being awarded a bonus. Ms. Chan testified that she had always received a bonus and produced documents showing that she had been issued bonuses in both 2004 and 2005.
18In 2004 Tai Pan established a formal job evaluation program consisting of an in depth annual review and less formal reviews every 4 months. The complainant’s annual review dated March 8, 2005 and a less formal review dated November 2004 indicate that Ms. Chan received an “A” grade; the first review describing the complainant as “Excellent”, the second describing her as “One of the best TP hosts”. Ms. Chan testified that these were the only written evaluations she possessed and hence the only ones she disclosed as Tai Pan did not generally give copies of performance appraisals to employees.
Salary Increases
19The complainant testified that she also did not receive a salary increase in either 2006 or 2007. Salary increases are also apparently linked to performance evaluations. The complainant testified that she had received regular salary increases from 1999 to 2005 and that in 2005 her salary went from $11.36 an hour to $12.00 an hour. She testified that she did not receive the salary increase that was awarded to CSRs in September 2006, a raise to $13.00 an hour, nor the raise that was issued in March 2007, a raise to $14.00 an hour.
20Ms. Chan acknowledged under cross-examination that she had been disciplined on two occasions in 2005 as a result of customer complaints: not appropriately greeting customers on March 30, 2005 and not handing out water and switching customer seats on March 19, 2005. The complainant testified that these were minor incidents and provided the written explanation she gave to Tai Pan in relation to the incident on March 30, 2005. Counsel for the respondent argued these customer complaints were significant – one resulted in a formal letter of discipline – and may have contributed to the decision by the complainant’s manager not to award the complainant her bonus and a salary increase.
Attending “Splinter Parties”
21The complainant testified that after her first complaint in 2006 she was also denied access to a series of regular parties held by Casino Rama for preferred customers. These “splinter parties”’ were, according to Ms. Chan, an opportunity for CSRs to mingle with an important clientele for the company and, as such, these parties were much sought after. The complainant testified that prior to 2006 she used to regularly attend these monthly parties including the largest splinter party which is held to celebrate Chinese New Year. She also testified that she also helped organize splinter parties including one scheduled for April 2006.
22The appellant testified that after she filed her complaint on February 27, 2006 she attended only one splinter party – on March 8, 2006. She testified that she then missed parties held on April 12 (the one which she states she helped organize), May 24, June 13, September 5 and December 13, 2006 as well as the Chinese New Year party held on February 27, 2007. Ms. Chan testified that on some of the days that splinter parties were held she was scheduled to work on buses that did not go to Casino Rama and on two occasions she was unexpectedly not even scheduled to work.
23Stella Tran testified that the CSRs were assigned to attend splinter parties on a random basis. In support she produced a scheduling sheet showing only a few CSRs and supervisors were scheduled to attend a splinter party on February 19, 2007.
Request Related to Doctor’s Appointment
24Ms. Chan testified that in October, 2006 she told her manager at the time, Stella Tran, that she wanted to change a day off in order to attend a doctor’s appointment for fertility treatment. According to the complainant, Stella Tran was angry about this request and demanded a written explanation for why Ms. Chan wanted to change her day off, a demand the complainant felt was unwarranted. The complainant was of the opinion that Stella Tran’s actions were evidence of the company’s hostility to her interest in becoming pregnant.
Meeting with Francis Wat
25The complainant testified that she met with the company president, Francis Wat, on November 10, 2006 at which time he told her that if she withdrew her human rights complaint she would receive her bonus and salary increase. Ms. Chan testified that she believed this to be a threat. She stated that she was fearful that if she was to settle as asked Tai Pan would be able to retaliate in some fashion and she would not be able to protect herself.
Complainant’s Termination
26The complainant testified that she settled her first complaint on March 12, 2007. When shortly afterwards she was not issued a work schedule she suspected that she was about to be terminated. She testified that she was then asked to meet with Josephine Kwan, Tai Pan’s Human Resources Manager on April 2, 2007 at which time she was told she was being terminated. When she asked what was wrong she was told by Josephine Kwan that the company had the discretion to terminate anyone as long as it paid. Later Ms. Kwan was to write to Human Resources and Development Canada (HRDC) to explain why the company terminated the complainant. I will discuss this letter in more detail later.
27Stella Tran and Wendy Chan’s relatively brief testimony focused on management and administrative practices at Tai Pan. This included testimony about the job evaluation process at the company, the discretionary nature of issuing bonuses and salary increases, the expectation that CSRs be fluent in English and another language (e.g. Mandarin) and the company’s use of disciplinary letters. Stella Tran also testified that the company has a current practice of accommodating pregnant staff by assigning them to office jobs, usually in the company’s call centre.
Analysis
28The Tribunal has to determine whether there has been a violation of sections 8, 5(1) and 9 of the Code. However, in my opinion, the first issue to be decided is whether the minutes of settlement the complainant signed limit or preclude me from considering the six incidents of discrimination or reprisal Ms. Chan identified that occurred before she signed her minutes of settlement.
Significance of the Settlement of the First Compliant
29Ms. Chan’s first complaint was settled on March 12, 2007. The Minutes of Settlement included a release which appears to indicate that in exchange for receiving a financial settlement Ms. Chan agrees to release the respondent from any further complaint under the Code if such a complaint was based on matters that gave rise to the first complaint or that arose out of the fact situation of the first complaint. Specifically the release states:
In consideration of the payment of the sum of $5,343.84, the receipt of which is hereby acknowledged, for all claims, costs and interests, less applicable withholding as required by law, and the fulfillment of other remedies listed in the Minutes of Settlement as attached I, Sui-Fun Chan on behalf of my self, my heirs, executors, administrators, successors and assigns hereby release and forever discharge the Corporate Respondent, Tai Pan Vacations Inc. (Tai Pan Tours), its directors, employees, officers and agents including its successors and assigns and the Personal Respondents Fred Lam, and Fion Tran, from all present and future complaints, causes for complaint under the Human Rights Code, and to the extent permitted or authorized by law, from the Employment Standards Act, and Labour Relations Act, actions, causes of action, claims and demands of every kind existing up to the date hereof to the extent that such are arising out of the fact situation and matters that give rise to this complaint, in Ontario Human Rights Commission File No. SBHE-6LJL9.
The release also goes on to state that:
I agree that I have discussed or otherwise canvassed any and all human rights complaints, concerns or issues arising out of or in respect to this complaint against the Corporate Respondent and Personal Respondents.
30The respondent argued that the six alleged acts or threats of reprisal and discrimination dating from 2006 were claims arising out of the facts of the first complaint that occurred prior to the settlement and as such the release is a barrier to them forming part of the current complaint. Moreover, in signing the release Ms. Chan agreed that she had discussed all human rights complaints, concerns or issues arising out of her complaint prior to signing the minutes of settlement. Consequently, it was not open to her to now introduce her allegations from 2006 in a new complaint.
31The respondent further argued that the settling of the first complaint was actually based, in part, on a consideration of a number of the allegations making up the second complaint. It was argued that the financial settlement of Ms. Chan’s first complaint explicitly includes payment for the bonus that was awarded to staff in June 2006, the bonus the complainant was stating in her current complaint was denied her by the respondent in reprisal for her initial complaint. The respondent also referred to a letter from the Commission to Tai Pan dated December 1, 2006 concerning a possible settlement of the first complaint which raised the issues of the denied bonus, the denied salary increase, reprisal and a request for general damages. The letter states, in part:
This is further to our telephone conversation earlier today in which I advised you that the above-noted file [Ms. Sui Fun Chan and Tai Pan Vacations Inc. (Tai Pan Tours) et al File No. SBHE-6LYJL9] has been transferred to me for handling. You ask that I put the complainants counter offer in writing and I indicated to you I have been in contact with the complainant and she advised that her employer is subjecting her to reprisal.
Ms. Chan states that in June 2006, all staff received a bonus except her. She also indicated that all staff received a salary increase in September 2006 except her. Ms. Chan is proposing a counter offer of an additional $1,500.00 to cover the bonus and retroactive salary increase to date. She would also like the employer to consider some form of damages for hurt to her dignity.
32A further letter from the Commission on December 12, 2006 to the respondent states, in part:
Thank you for your fax dated December 11, 2006. I have reviewed the settlement offer with the complainant and she has decided to accept it.
33There was no objection to the introduction of the above evidence about settlement discussions. It is clear to me that when the complainant was negotiating a settlement of her first complaint she was considering settlement proposals not only for events that gave rise to her original complaint – how she was treated during the period of December 2005 to February 2006 – but for events that took place after this. She received as part of the settlement the bonus given to staff in June 2006. She clearly negotiated the settlement of her first complaint in light of having been denied a bonus and a salary increase. She communicated with the respondent that she believed that reprisal measures had been taken against her. These settlement negotiations were taking place in December 2006, after the first six of the seven actions or incidents that form the basis of Ms. Chan’s present complaint had occurred. If these six actions or incidents remained an issue for the complainant it was presumably open to her not to settle her first complaint and to pursue them at the time of her first complaint, notwithstanding that they had arisen after the original filing of her first complaint.
34I find that I am now precluded from considering whether the six incidents or actions constitute reprisal or discrimination as part of the present complaint given the timing of these incidents or actions and the evidence that a settlement was reached in consideration of them. The complainant indicates, in signing the minutes of settlement, that she had discussed all human rights complaints, concerns or issues arising out of her complaint prior to signing and she was willing to release the respondent from any further human rights complaints. Therefore, the issue for determination in this case is whether the respondent has violated the Code in terminating the complainant.
35It is not necessary to decide whether I may nonetheless have regard to these actions and incidents from 2006 for the purposes of interpreting later events. I am satisfied that even disregarding the evidence relating to 2006 events, there is other evidence that persuasively establishes that Ms. Chan’s termination is an act of reprisal.
Reprisal
36Section 8 of the Code states:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
37The intention of section 8 is to allow complainants to pursue their rights under the Code without fear of reprisal for doing so. It is established human rights law that reprisal must involve a deliberate intent to retaliate and thus this intention must be demonstrated in order to show that a complainant’s rights under section 8 have been violated. (see, for example, Jones v. Amway 2001 CanLII 26217 (ON H.R.T.) and Jones v. Amway, [2002] O.J. No. 1504)
38The initial evidentiary burden in complaints of discrimination including complaints of reprisal before the Tribunal is generally on the complainant to establish that, on a balance of probabilities, a prima facie case of discrimination exists. (see Ontario Human Rights Commission v. Simpsons Sears. 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536). Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.
39Ms. Chan was terminated without cause on April 3, 2007. In terminating an employee without cause an employer must provide notice or pay in lieu of such notice as required by law. There was no dispute that Tai Pan met these requirements and it was Tai Pan’s principle contention that in so meeting these requirements its dismissal of the complainant was legal and within its prerogative. The respondent also referred to the fact that the complainant did sign a letter in February 2005 in which she accepted various terms and conditions of her employment including that she could be terminated without cause.
40However, the complainant argued that there was prima facie evidence that the termination was an intended reprisal for Ms. Chan’s past efforts to enforce her rights under the Code. The complainant stated this evidence could be found in a letter from Josephine Kwan, the Human Resources Director of Tai Pan, to HRDC.
41Ms. Kwan’s letter was in reply to a May 11, 2007 letter from HRDC asking Tai Pan to provide a reason for why the company had dismissed Ms. Chan. HRDC wanted this information in order to determine whether the complainant was entitled to receive employment insurance benefits. Ms. Kwan’s states in her May 14, 2007 letter:
In the letter you requested further reason for termination of Ms. Chan. As per our telephone conversation I indicated that Fanny Chan was terminated on a without cause basis upon payment in full of all statutory entitlements. Due to recent litigation between Fanny Chan and Tai Pan the employment relationship and employer/employee trust were affected to the point that it was impossible to continue her employment.
Ms. Chan testified that there was no civil litigation between herself and Tai Pan and that the only legal action of any kind was her complaint to the Commission.
42I am satisfied that a reasonable inference to be drawn from the language of Ms. Kwan’s May 14, 2007 letter is that Ms. Chan was terminated in response to her having filed a complaint with the Commission. As such this is, on its face, prima facie evidence, that Ms. Chan’s termination was an act of reprisal.
43In my opinion Tai Pan did not then provide a credible and rational explanation, in the face of this letter, to demonstrate that, on a balance of probabilities, the respondent’s decision to terminate the complainant was not an intentional act of reprisal for Ms. Chan having filed a human rights complaint. Essentially no explanation was put forward in oral testimony either by Stella Tran or Wendy Chan, both of whom testified that they were not participants in the decision to terminate Ms. Chan. No evidence was adduced as to why or how the employee-employer relationship between the respondent and complainant had been affected and why there had been a breakdown in trust. There was no evidence presented to indicate that Ms. Chan’s work performance contributed to the decision to dismiss her, that either of her two disciplinary incidents or her limited language skills (in light of the company’s policy about speaking two languages) were factors in the termination. It was simply the repeated position of the respondent’s counsel that the dismissing of Ms. Chan was within the prerogative of the respondent given Ms. Chan received her statutory entitlements from the company related to her termination.
44I find, based on the wording of the May 14, 2007 letter from Josephine Kwan and the absence of an alternative explanation for the complainant’s termination that the respondent’s decision to terminate Ms. Chan was because of her prior human rights complaint and the respondent objecting to the subsequent process to settle this first complaint. As such this is an act of reprisal and a violation of section 8 of the Code.
45I have no doubt that Ms. Chan’s pursuit of her rights under the Code by first filing a complaint and then negotiating with Tai Pan to settle it affected the nature of her relationship with the respondent in that it may have made the relationship more adversarial and less trusting in nature as Fiona Tran suggests in her May 14, 2007 letter. However, this change in the dynamics in the relationship between the complainant and the respondent as described by the respondent does not give Tai Pan the right to terminate the complainant. She had lawfully pursued her rights under the Code and cannot be summarily punished for doing so.
Sex Discrimination
46Section 5(1) of the Code states:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
47Both complainant and Commission counsel argued that when Tai Pan terminated Ms. Chan it was not just an act reprisal but one of sex discrimination. It was argued that Fion Tran indicated to the complainant in May 2006 that the company was adverse to Ms. Chan becoming pregnant again and that Fion Tran told Ms. Chan that if she was to become pregnant she would not work at Tai Pan. It was also noted that the company knew in October 2006 that the complainant was continuing her efforts to become pregnant based on a conversation between Ms. Chan and Stella Tran about medical treatment.
48However, even if I was to accept as true Ms. Chan’s accounts of her conversation with Fiona Tran in May 2006 and what transpired when she discussed her medical treatment with Stella Tran in October 2006 I cannot conclude that, on a balance of probabilities, this would be evidence that her termination, approximately five months later in March 2007 and three weeks after the settlement of her first complaint was related to her efforts to become pregnant or her potential pregnancy. Ms. Chan was not pregnant when she was terminated, and there was some evidence that Tai Pan had since Ms. Chan’s original complaint developed a practice of accommodating pregnant staff by deploying them in their call centre. The evidence for the panel is that Tai Pan was punishing Ms. Chan for her past actions, not potential future actions.
49I have also considered whether if I was to accept that Tai Pan was, in fact, hostile to Ms. Chan becoming pregnant again and Ms. Chan was indeed continuing to attempt to become pregnant whether this might have contributed to the company’s conclusion, as expressed in Fion Tran’s letter to HRDC, that the “employer/employee trust were [sic] affected to the point that it was impossible to continue her employment”. In other words, is it probable that the retaliatory nature of her termination was linked with her interest in becoming pregnant and the company’s belief this would continue to complicate their employer-employee relationship with the complainant? I find this, under the circumstances, too speculative to rely on. Consequently, I do not find that there has been a violation of the Code under section 5(1).
Remedy
50The Tribunal’s remedial powers are set out in section 45.2 of the Code:
45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
51The remedial powers are not intended to be punitive but rather to provide a remedy for victims of discrimination, to remove discriminatory barriers and policies, where applicable, and to promote future adherence to the Code. Remedies can also serve to educate the parties and the wider public.
52I find that the respondent has discriminated against the complainant when it terminated her in March 2008. This termination was, in my opinion, a deliberate act of reprisal for Ms. Chan’s earlier complaint and the respondent not liking the efforts it had to make to respond to this complaint. The company’s decision to terminate the complainant a mere three weeks after Ms. Chan’s first complaint was settled goes beyond being wilfully blind or reckless, it was a calculated retaliation. The respondent mistakenly believed it could terminate Ms. Chan with impunity.
Compensation
53Persons have the right to be free from discrimination. Monetary compensation is awarded for having lost this right, for having been discriminated against. The Tribunal’s decision in Sanford v. Koop, 2005 HRTO 53, helpfully sets out a number of factors for consideration in the awarding of damages that include the complainant’s loss of self respect and dignity and the seriousness, frequency and duration of the discriminatory treatment. In Sanford v. Koop, the Tribunal also noted that the quantum of damages should not be set too low, “since doing so would trivialize the social importance of the Code by effectively creating a ‘license fee’ to discriminate”. (para. 34).
54After careful consideration of the facts of this case the Tribunal finds that awarding $15,000 to the complainant for monetary compensation is appropriate. This is a substantial award and one I find to be warranted given the serious nature of the discrimination and the humiliation and loss of dignity suffered by the complainant. I find the complainant’s termination to be retaliatory and callous and done when Tai Pan believed itself to be free to do so. Termination generally has a significant impact on a person and it did so in Ms. Chan’s case. She repeatedly stated during her testimony the pride she took in being a CSR and of being a good employee and the emotional and financial impact her termination had on her. She expressed her disappointment in the fact that she was unable afterwards to find a job in the travel business as she so hoped. Pre-judgement interest is payable on this compensation from the date of the complaint. It will be calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, (the “CJA”).
Restitution
55Where a breach of the Code has been found, a complainant is entitled to restitution for monetary losses suffered as a result. The question in this case is what would the complainant have earned if her discriminatory termination had not taken place. Complainants do have a duty to mitigate their losses and there is an issue of for what period of time they are eligible to receive compensation. Counsel for the respondent argued that the complainant should only be eligible for lost wages for a “reasonable notice” period but the principle of “reasonable notice” which is related to wrongful dismissal cases is not binding on the Tribunal. It is up to the Tribunal to determine the period of time required to reasonably compensate for these losses.
56Ms. Chan testified that after being terminated from Tai Pan in April 2007 she started to look for another job, initially with another tour agency. She testified that she looked for jobs in newspapers and on the internet and submitted resumes to a number of employers in the period of April 2007 to January 2008. Ms. Chan disclosed a document recording her job search efforts which states that she looked at ten different newspapers, seven different online websites, attended three different job fairs and submitted resumes to a total of 27 employers.
57Ms. Chan testified that she was eventually hired as a bus driver by York Region Transit on January 28, 2008. She testified that she initially went through a training period before beginning part time on March 25, 2008, earning $13.75 an hour which increased to $14.15 an hour in June, 2008. This part time work was generally 9 – 20 hours a week. Ms. Chan became a full time employee on November 18, 2008.
58The complainant would have earned $56,188.20 at Tai Pan between April 7, 2007 to November 16, 2008 (based on earning $14 an hour and working 87.79 hours every two weeks). When her earnings from York Region Transit and termination pay are subtracted from this amount, her lost wage claim amounts to $42,466.79.
59The respondent argued that the complainant did not take reasonable steps to mitigate her losses following her termination, that sending 17 applications to employers in the tour business and elsewhere did not constitute a sufficient effort to mitigate. The respondent questioned whether the complainant even looked for and received job counselling and job search advice as part of her efforts to find employment.
60I find that Ms. Chan has satisfied her obligation to mitigate by actively pursuing employment opportunities. Ms. Chan credibly stated that in addition to sending out applications to selected employers she attended job fairs and used multiple sources to identify possible employers. She testified that she received job counselling and job search advice from the “Y”. She did obtain employment with York Region Transit approximately 10 months after her termination from Tai Pan, albeit it took a further 10 months for this to become full time employment.
61I am satisfied that under the circumstances the complainant is entitled to a restitutionary award of $42,466.79 for wage loss from the date of her termination until she obtained full time work on November 16, 2008. This is approximately 20 months after her dismissal, a period of time I do not find to be unreasonable given the circumstances of this case. Pre-judgment interest is payable on the restitution. It will be calculated in accordance with section 128 of the CJA from February 22, 2008, a date halfway through the period of loss. Any post-judgment interest on the awards is payable pursuant to s. 129 of the CJA.
Orders for Future Compliance
62The Commission asked that:
Tai Pan draft an anti-discrimination, harassment and workplace accommodation policy with the assistance of an external expert in human rights and that the policy address all rights under the Code in relation to employment and the employer’s duty to accommodate;
Tai Pan provide this draft to the Commission for review and comments and that, once finalized, provide copies to current staff within ten days and new staff upon hiring;
Tai Pan provide training on this policy to all managers and supervisors within six months of the Tribunal’s decision and that the training be conducted by an external expert in human rights in employment; and
Tai Pan notify the Commission within ten business days of the completion of these actions.
63The respondent argued that there was no need for a human rights policy for the company noting that currently pregnant employees at Tai Pan are accommodated by being able to work in the company’s call centre. It was also argued that the cost of a human resources consultant to develop and implement any policies or training was unreasonable in the current economic climate.
64Having considered the facts of this case including the nature of the complainant’s termination I am of the opinion that to ensure future compliance with the Code Tai Pan should have a corporate human rights policy and supporting management training and that an expert in human rights should be employed to help develop and implement these initiatives.
Orders
65Having found that the respondent, Tai Pan Vacations Inc. violated section 8 and section 9 of the Human Rights Code the Tribunal makes the following orders:
- The respondent, Tai Pan Vacations Inc. shall pay the complainant, Sui-Fun Chan, the following amounts:
(a) damages in the amount of $15,000 for the complainant’s termination plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act from the date of the complaint;
(b) $42,466.79 which represents all wages and benefits the complainant would have received between April 7, 2007 to November 18, 2008 if she had not been terminated from Tai Pan Vacations Inc. less monies received from the respondent at the time of her termination and any monies earned elsewhere during that period, plus pre-judgement interest on this amounts payable in accordance with section 128 of the Courts of Justice Act, from February 22, 2008; and
(c) post-judgement interest on all amounts payable in accordance with the Courts of Justice Act.
The respondent, Tai Pan Vacations, Inc. shall, with the assistance of an expert in human rights, develop and adopt an anti-discrimination, anti-harassment and accommodations policy.
The respondent, Tai Pan Vacations Inc. shall, with the assistance of an expert in human rights, conduct a training program all for managers in order to support the implementation of the new policy.
No later than six months from the date of this decision, the respondent, Tai Pan Vacations Inc. shall submit a copy of their anti-discrimination, anti-harassment and accommodations policy and evidence that they have conducted their human rights training program, as required to the Commission.
Dated at Toronto, this 10th day of March, 2009.
“Signed by”
Eric Whist
Vice-chair