Firth v. Sidana, 2009 HRTO 340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danielle Firth

Applicant

-and-

Sidana Inc., Sidney Abram and Terry Taylor

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: David Muir

Date: March 23, 2009

Citation: 2009 HRTO 340

Indexed as: Firth v. Sidana

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

2This Case Resolution Conference was held in London on February 8, 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. I heard from the applicant, the two individual respondents as well as several employees and former employees of the respondent corporation.

Evidence

3The applicant alleges that she has been discriminated against in employment on the basis of sexual orientation. In particular it is alleged that the respondents, her employer; a supervisor; and the owner of the company, terminated her employment when they became aware, sometime in November, 2006, that she was involved in a same sex relationship. The applicant is candid that this discrimination was not apparent to her at the time. Only afterwards, when she began to piece things together, did she come to believe that the fact that she ceased working was because of her sexual orientation and was married to a woman.

4The respondents state that the fact the applicant was in a same sex relationship had nothing to do with the fact she ceased working for the respondent employer. The respondents state that there was less work available after the end of November and that they did attempt to contact the applicant to offer her shifts but she did not respond. The respondents also state the applicant had found work elsewhere and was not interested in working for the respondent employer any longer.

5Sidana Inc., the respondent employer, is a small industrial cleaning and maintenance operation providing cleaning and maintenance services to other enterprises in the manufacturing sector. Its workforce fluctuates depending on demand for its services. The respondent Abram is an owner of the company and is involved in the day to day operations. The respondent Taylor was, for a short time, the Production Manager of the respondent employer. He began work there in late November 2007 and has since left.

6The applicant’s employment with the respondent employer was casual. Work was assigned based on the amount of labour required taking into account any special skills required for a particular job. For example some work requires special training in the use of scissor lifts, or in confined space entry. The applicant has no special training or certification; accordingly there could be occasions when she would not be called in to work when others were working.

7The respondent employer and its labour force connected by telephone. Work was often scheduled and assigned at the last minute. A number of cell phones were used to contact employees with offers of a shift. On the other side, employees would often call in to enquire if work was available. Given the casual nature of the relationship employees often had second or third jobs. There would be occasions where employees would decline a shift because it was in conflict with another commitment. The respondent employer’s cell phone records were entered into evidence, but they are not particularly helpful.

8When the applicant began working in June 2007 business was pretty good and, while her hours fluctuated from week to week, they were generally what would be considered full-time work hours with the average work week of somewhere between 30 and 40 hours. She also worked almost every week from her start to the end of November 2007. The respondent employer valued the applicant because she was always available for work and, other than a brief absence in October, she rarely, if ever, declined a shift.

9Although there were allegedly some issues with her work performance, the applicant was a good employee. She testified that she was subject to unfair discipline in late November 2007 where she was berated by a supervisor for not following his directions. The applicant claimed that she did not know he was her supervisor. I am satisfied there is no alleged connection between this event and the fact the applicant’s sexual orientation had, or would soon, become known in the workplace. In spite of these potential workplace performance issues her pay rate was raised from $10 to $12 per hour in late November 2007.

10Her last shift worked was in late November, likely November 27, 2007. She testified that she called often to see if there was work, but was never able to speak with anyone. The respondents each say that they do not ever recall the applicant calling them after December 1, 2007. On the other hand both the respondent Abram and Mr. Eyndhoven testified that they called the applicant. Mr. Eyndhoven also testified that he began to turn over such responsibilities to Ms. Cassibo as he had significant personal issues to deal with in December 2007. It is unclear how his incapacity might have affected the ability of the applicant and respondents to connect during this critical period. Ms. Cassibo testified that she attempted to contact the applicant many times. While it is not clear when these calls would have been made, for reasons discussed below, I am satisfied these attempts likely would have begun after the end of December.

11The applicant did work at least one day in December assisting her father, a rural mail carrier. The respondents’ evidence was that there may have been two occasions when they called her for work in December and were told that she was at the “Post Office”. Whether one or two times in December is not hugely significant. Given the casual nature of the employment relationship most employees had other employment.

12It is not disputed the applicant began working regularly as a sub-contractor on rural mail delivery sometime in January. When she decided to pursue the opportunity with Canada Post is significant.

13The applicant’s records for the 2008 income tax year report earnings of $4,315 from Canada Post as an assistant to a rural carrier. She was paid $25 or, on occasion, $35 a day, for such work and, based on this, worked approximately 170 days. This is a far cry from her earnings with the respondent employer. Thus it makes little sense to conclude, as the respondents suggested, that she quit her employment with the respondent employer for less money and, at the time, less certainty in employment.

14However the material filed from the CRMS, the payroll services for Canada Post, also indicates that by, January 7, 2008 at the latest, the applicant had entered into a subcontracting relationship with an employee of Canada Post. This fact becomes significant because the applicant was adamant about connecting her decision to find alternative work with the filing of her human rights complaint and, consequently, her last attempt to contact the respondent employer. In her mind, once she made the complaint she could have no more contact with the respondent employer.

15Although the human rights complaint is dated January 28, 2008 the applicant stated that she had contacted the Commission before that date but could not recall when exactly. In any case I find that by that time the applicant had decided that she had to find alternative work as the relationship with the respondent employer was over. This decision appears to have been made well prior to the actual filing of the human rights complaint and more likely than not in the first week after an MSN chat with Ms. Cassibo (see below). This decision on Ms. Firth’s part may have impacted on the ability of her employer to connect with her after the New Year.

16Ms Firth believes that she told Ms. Cassibo and another co-worker, Erica, on or about November 12, 2007 that she was a lesbian living in a same sex relationship. Ms Cassibo, who self-identifies as bisexual, testified that she had no recollection of such a conversation and stated that she had known the applicant was a lesbian for some time. The applicant’s evidence is also contradicted by the content of an MSN chat between the applicant and Ms. Cassibo which took place on December 31^st, 2007.

17The text of the chat was introduced in evidence. Both Ms. Cassibo and the applicant accept the text as accurate. It begins with a discussion about why the applicant had not been at work, because Ms. Cassibo had reason to believe that attempts had been made to contact her for work. The chat does tend to corroborate the applicant’s position that, up to this point, she was waiting for calls for work but not getting them. On the other hand, it also corroborates to some extent the respondent employer’s position that there were attempts to contact the applicant prior to December 31.

18Ms. Cassibo then asked how the applicant and her partner had enjoyed the holiday. It is clear from the question that Ms. Cassibo knew that the applicant was in a same sex relationship. Despite her claim that she had told Ms. Cassibo on November 12^th, the applicant questioned how Ms. Cassibo had learned this about her. Ms. Cassibo says in the chat that she had always known but when pressed by the applicant, Ms. Cassibo related to her a brief conversation amongst co-workers travelling to a job in Toronto which made it clear that these three or four workers were aware that the applicant was living in a same sex relationship. It is not clear when the conversation in the car would have taken place, but likely after November 12^th.

19Ms. Cassibo also testified that Erica had betrayed the applicant’s confidence and told her. Ms. Cassibo suspects although she does not know that Erica had told others in the workplace.

20The only other time the applicant’s sexual orientation was discussed was during a meeting between her and the respondent Taylor, the new Production Manager, on December 3, 2007. The meeting was in the nature of a meet and greet as well as to discuss the incident involving one of the supervisors described earlier. The applicant submitted Taylor’s contemporaneous notes of their discussion. These notes contain the following comment:

Danielle voluntarily discussed that she was married to a woman. I had stated to her at that time that this was not an issue. I clearly indicated to her that in my position I was bound by confidentiality laws.

21Mr. Taylor agrees it was possible the applicant might have been left with the impression that there would be steady work and if all went well perhaps regularly scheduled work for extended periods of time. They both agree there was a discussion of her personal life including the fact that she was married to a woman and that they had a child.

22Mr. Taylor was unable to say why he included the above comment in his note. He stated that he never discussed the applicant’s sexual orientation with anyone else or passed the information to Mr. Abram. He testified that, for him, the applicant’s sexuality was not an issue and in any case he had nothing to do with who was called for work on any given day.

23Mr. Eyndhoven was a supervisor at the corporate respondent and one of the individuals who would have contacted the applicant for work. He testified that he had known about her sexuality and marriage to a woman in some sense for months. He had been to her home and had met her partner on more than one occasion.

24Mr. Abram testified that December and January were slow months and that there was not much work. The documentary evidence introduced does tend to support this contention. Both personal respondents testified they had been pursuing contracts that might have provided the kind of stable, scheduled employment the applicant discussed with the respondent Taylor. However these efforts were not successful and, in fact, the opposite occurred as manufacturing in south-western Ontario slowed over the winter.

Analysis

25Although it was clear the applicant truly believes that the fact that she was no longer being offered work is in some way related to the fact that it became known that she was in a same sex relationship, the evidence does not confirm her perception.

26I find that the evidence is more consistent with the conclusion the applicant was upset by Ms. Cassibo’s revelation, in their December 31 chat, that her sexuality was known in the workplace. She believed, erroneously as it turns out, that the respondent Taylor revealed this information. I find, based on Ms Cassibo’s evidence, the applicant’s sexuality was common knowledge and confirmed, perhaps, by Erica’s betrayal of her confidence.

27The applicant connected the fact she was not getting called for work, after working fairly steadily for several months, to the disclosure of her sexuality. However the evidence does not support this connection. I am satisfied the evidence is clear that available work declined significantly from late November 2007 through January 2008. It is likely that there was very little work and therefore few calls, if any, for the applicant in the period from November 27 to December 31, 2007 and into January 2008.

28I am satisfied, based on the evidence of Mr. Eyndhoven and Ms Cassibo the persons responsible for calling employees for work, that the fact the applicant was in a same sex relationship was irrelevant and did not affect their treatment of her. I also accept as credible Mr. Abram’s testimony he had known this for a considerable period of time and that it did not affect his decision making in any way.

29In submissions the applicant suggested that the conversation in the car described in the MSN chat and her conversation with Mr. Taylor when taken together created a poisoned work environment. I do not agree. The evidence of what was said in the car is entirely devoid of content and context. The applicant was not party to it and it was not communicated to her other than through her as described by Ms. Cassibo. There is no evidence that it went beyond a brief moment of co-worker gossip. As regards the discussion in the meeting with Mr. Taylor, the evidence of the conversation the two had that day is the same, it was a friendly get to know you chat, nothing more. Mr. Taylor asked if the applicant was married – her truthful answer followed. The evidence is that the note was placed in a file and the information it contained was not shared with anyone. The applicant did not know of its existence until these proceedings.

30For all these reasons the Application is dismissed.