Jessie Guay v. 1481979 Ontario Inc. and Michael Angst, 2010 HRTO 1563

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jessie Guay

Applicant

-and-

1481979 Ontario Inc. and Michael Angst

Respondents

decision

Adjudicator: Brian Cook

Date: July 19, 2010

Citation: 2010 HRTO 1563

Indexed as: Guay v. 1481979 Ontario

APPEARANCES BY

Jessie Guay, Applicant ) Suzanne Guay, representative ) ) 1481979 Ontario Inc. and ) Geoff Laplante, counsel Michael Angst, Respondents )

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Jessie Guay, the applicant, alleges discrimination on the grounds of sex and specifically, that her employment was terminated when she told her employer that she was pregnant.

2Michael Angst is the personal respondent and the owner of a numbered company which operates a Ministry of Transportation license office franchise. The office is privately owned and is a place that members of the public and car dealers go to register and transfer ownership of vehicles and license plates. The applicant was hired as a Customer Service Representative on or about June 4, 2008. Her employment was terminated on June 24, 2008. She told people at work that she was pregnant on or about June 10, 2008.

3I heard testimony from the applicant, the personal respondent and six witnesses called by the respondents. Christine Barton and Deann Crawford were co-workers and are still employed by the respondents. Ginette D’Aoust, Andrea St. Amond, and Joe Legare represent car dealerships who had dealings with the respondents in June 2008. Julie Belanger was employed in the respondents’ office for various periods prior to the applicant’s employment.

Decision

4For the reasons that follow, I find that it is more probable than not that the fact that the applicant disclosed she was pregnant was a factor that contributed to the decision to terminate her employment. The applicant is entitled to compensation for loss of earnings and for injury to her dignity, feelings and self-respect.

Background

5The applicant was referred to the respondents by an employment agency called YES. The agency provides a wage subsidy for a period of months, as a way of encouraging employers to hire people who may not have work experience. The personal respondent testified that he used YES before and since the applicant was referred.

6The applicant was interviewed and started her employment on or about June 4, 2008, within a day or two of the interview. Approximately one week after she started working, the applicant discovered that she was pregnant after taking a home pregnancy test. She was very excited because she had been told by a doctor that she would not be able to become pregnant. She told people at work, including the personal respondent, at some time in the second week of her employment.

7The applicant testified the personal respondent’s attitude towards her changed after she told him she was pregnant. He began to criticize her more and fired her at the end of her third week of employment. She alleges that when he fired her on June 24, 2008 he used vulgar language and told her that he would not be firing her if she was not “prego”. She alleges that he was upset because the time that had been spent training her would be wasted when she went on pregnancy leave.

8The personal respondent denies the allegations. He testified that the applicant’s employment was terminated because of performance issues. In particular, she was slow to learn the procedures and processed transactions slowly. As well, she was soft-spoken and there were complaints from customers that they could not hear her. In his Response, the personal respondent indicated that he warned the applicant “at least three times (if not more) prior to her pregnancy that if she does not do a major turnaround I would have to terminate her position”. In cross-examination, he indicated that he warned the applicant twice about her performance prior to terminating her employment. One warning was about her speed and the other was about her soft voice. There were no written warnings or written confirmation of the verbal warnings.

9All the witnesses agreed that the license office is a busy place. Large numbers of transactions are processed every day. Some of the customers or clients are members of the public, but many are car dealerships who come on a regular basis, sometimes daily. People who come from dealerships typically bring a number of transactions at a time. There are a large number of types of transactions that are done, some commonly and some less so. The regulations and license requirements are subject to frequent change and even people who have done the job for many years still may need to consult about some transactions. The office is small, about 600 square feet. There are four workstations. Customers line up in one line and go to the first workstation that comes available.

10The personal respondent and the respondents’ witnesses testified that the key to the success of the business is the ability to process transactions quickly. This is particularly important for the dealerships that use the office on a regular basis. The personal respondent testified that there is another Ministry franchise in the city but most of the car dealerships prefer to come to his franchise, because he provides better and faster customer service. The witnesses from the dealerships testified that they prefer to do their business with the respondents’ franchise even though the other franchise is closer. The personal respondent testified that he could easily lose a dealer as a customer if delay by his staff meant that the dealer was at the office for longer than necessary.

11There is a training period for all new employees. The training may consist of working directly with the personal respondent or another senior employee, or at an adjacent work station so that the work of the new employee can be monitored.

12There was conflicting evidence about the learning curve. The personal respondent testified that he usually starts new Customer Service Representatives with simple transactions, usually involving members of the general public rather than dealers. Dealers usually have multiple transactions and these are often more complex. He testified that he did not assign the applicant to dealer transactions until the second week of her employment.

13The personal respondent testified that a new employee could not master every form of transaction in less than three weeks. Deann Crawford, who is currently working as a Customer Service Representative and has been in the job for over three years, indicated that it took her three to four months before she felt fully trained and ready to handle all the types of transactions.

14Julie Belanger worked as a Customer Service Representative from 2002 to 2005, and again from January 2006 to August 2006. She testified that she felt comfortable doing the job after about one month. When she returned in 2006, she needed refresher training for about one week. Ms. Belanger indicated that some people are suited to the job and some are not. In her experience, it becomes apparent within a few weeks whether a new employee has the ability to do the job well. She testified that she recalled at least one other employee who did not work out and who was fired within a few weeks of starting.

15Ms. Belanger left to take a different job in 2005, and when that job did not work out, she came back to work for the respondents in January 2006. At the time she returned, she was pregnant and disclosed this to the personal respondent. She then worked to August 2006 when she left and went on maternity leave. She testified that the personal respondent was very supportive of her in the time before she went on maternity leave. He purchased a special chair for her and a mat to stand on.

16There was an issue concerning the applicant’s method of keyboarding. She often held a document in one hand and used the other hand to enter the information on the keyboard. The personal respondent asked her to use two hands on the keyboard because he felt that this approach was more professional and was also a faster way of entering the data. He told the applicant on numerous occasions to always use two hands for keyboarding. The applicant recalled the issue coming up a few times. Deann Crawford, who is currently employed as a Customer Service Representative, and who was working in that position when the applicant was also employed, testified that every newly hired Customer Service Representative tends to use one hand just like the applicant and that the personal respondent tells them to use two hands. She herself used one hand to hold the paper and one hand to keyboard when she first started. The personal respondent explained that this was not efficient and after awhile she realized that he was right.

17Ms. Crawford testified that she noticed that the applicant was slow but that it is common for newly hired Customer Service Representatives to be slow. She confirmed that there were complaints from customers about the applicant’s slowness and she was not surprised when the applicant was let go. She recalled that she spoke to the applicant a few times about the need to speak louder.

18Christine Barton has been employed by the corporate respondent with the bureau for about six years and acts as an Office Manager when the personal respondent is not at the office. She testified that the applicant was slow and that her speed did not improve. She said that she noticed that the applicant was having trouble doing the job in the first week of her starting. She could not recall if she heard any complaints from customers.

19Ginette D’Aoust, Andrea St. Amond, and Joe Legare all testified that they went to the franchise on several occasions during the time that the applicant was employed. They each had transactions processed by her and found that she was very slow. On subsequent visits, they let others in the line go ahead of them so that they would not get her. They each testified that they complained to the personal respondent about the applicant’s slowness.

20Dylan Allison is a Dealership Sales Consultant. He provided a letter that was submitted with the Response although he was not available as a witness. He indicated that he had an initial encounter with the applicant and spent “what felt like an hour to have a transaction completed”. He then avoided her wicket “like the plague” until he again had her process transactions when it “seemingly took longer than the first time”. After this experience, he complained to the personal respondent.

21Mr. Legare testified that the applicant and her mother came to his office asking him to give her a letter stating that the applicant had done a good job at the License Bureau. He said that he could not give her such a letter because he had complained to the personal respondent about her speed when she was working there. Mr. Legare testified that the applicant and her mother asked him to write the letter anyway but he refused. The applicant testified that she did go to Mr. Legare’s office to ask for a letter but he said that he did not want to get involved.

22After the applicant’s employment was terminated, she filed a claim with the Ministry of Labour, alleging that her employment had been terminated because of pregnancy in contravention of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended. The claim was investigated by an Employment Standards Officer. In a decision dated December 11, 2008, the Officer determined that there was no evidence of a contravention of the Act. The Officer indicated:

With respect to being terminated because the employee intended to take a leave, our investigation revealed there was no evidence to support this, but rather the employee, Jessie Guay was not suitable for the job.

23There is no information available regarding the nature of the investigation that was undertaken.

Documents from YES

24There are two documents from the YES employment agency that referred the applicant to the respondents. Both were the subject of some controversy at the hearing. The first is a YES form called “Early Termination”. This document was disclosed by the applicant as part of her pre-hearing document disclosure. The applicant’s representative obtained this document from YES. At the hearing, respondents’ counsel objected to this document, claiming that it was inadmissible because there was no witness present from YES who could provide information about the document.

25In the course of discussing the document, the applicant’s representative advised that she had received an additional document from YES. This document is a form called “Record of Monitoring”. Counsel for the respondent reviewed this document and submitted that it should be part of the record. He felt that it was improper for the applicant to have withheld the document. The applicant’s representative said that she had no objection to the second document forming part of the record and in fact now wanted it to be part of the record and regretted not submitting it earlier. After hearing from the parties, I determined that both documents would be admitted, subject to a determination of the weight to be given to them.

26On considering the evidence after the hearing, I determined that I required further information about the YES documents. I issued a Case Assessment Direction that directed the applicant to obtain further information about the documents. I indicated that I needed to know who created the documents, who provided the information recorded on them, when it was provided, and who entered that information on the documents. I directed the applicant to obtain a sworn statement from the maker of the documents and a typed transcription of the information set out in the forms.

27The applicant obtained the required information and forwarded it to the Tribunal and to respondent’s counsel. Initially, she provided only a signed statement from the author of the information recorded on the forms.

28Counsel for the respondents advised that he had “a number of submissions and questions on the issues raised by the unsworn documents”.

29In an Interim Decision, 2009 HRTO 2247, dated December 22, 2009, I found that the fairest and most expeditious approach was to reconvene the hearing in order to hear evidence about the YES documents. The applicant proposed that submissions could be made in writing. However, the respondents felt that it was necessary to have a reconvened oral hearing so that the representative from YES could be examined and cross-examined.

30The hearing reconvened on June 10, 2010. The applicant and her representative and the respondent and his counsel were present. Joe Conlon was present as a witness. Mr. Conlon is a Senior Job Developer with YES. He has been employed by YES since 1999. He testified that he filled in the two YES forms that had been introduced into evidence in this Application.

31Mr. Conlon testified that YES is a non-profit organization that is supported by the government of Ontario to assist unemployed people find employment. The agency provides a wage subsidy to the employer for a period of time. Mr. Conlon’s job involves contacting employers who are interested in participating in the program and who are looking for staff. The agency typically makes about 50 placements per month. The respondent in this case has used YES prior to and since the applicant’s employment.

32Mr. Conlon testified that he does not usually interact with the person who is employed. He does contact the employer periodically during the term of the subsidy. He usually makes this contact at the end of the first and second week, and again in the middle of the term and at the end. A different person at YES, called a Counselor, is responsible for maintaining contact with the employed person.

33The first YES form is called a “Record of Monitoring” form. The first box on the form pertains to contact information. The second and third boxes pertain to Week 1 and Week 2 monitoring. There is a space for “Client Comments” and a space for “Employer Comments”. Information was entered only under the “Employer Comments” section for each of Week 1 and 2. Mr. Conlon confirmed that he had entered the information on the form. He said that his practice is to enter the information as he is talking on the telephone. Mr. Conlon testified that this showed that he had contacted the employer but that no contact was made by the Counselor with the applicant. Mr. Conlon testified that his contact was the personal respondent. However, he agreed that he could not say with complete certainty that the information recorded on the form came from the personal respondent because it is now two years since the form was completed.

34The first contact was on June 11, 2008. Under “Employer Comments” Mr. Conlon entered:

Very quiet – major concern

Doing well

Needs to be more outgoing

It is early though

35The comments for the Week 2 Monitoring read in part:

Still working through her quietness

Confidence is coming

All good

36The respondents submit that this document proves that there were major concerns about applicant’s performance within the first two weeks of her employment and with respect to week one, prior to the announcement of her pregnancy.

37The applicant submits that the document says nothing about her alleged slowness in doing the job or her alleged inability to learn the job as quickly as expected. She argues that if there really were significant performance issues as alleged by the respondent, then these surely would have been communicated to YES.

38The second YES document is an “Early Termination” form. It is used when a placement ends prior to the end of the wage subsidy. Under the heading “Termination-Related Feedback”, there are sub-headings pertaining to information from the employer and from the client. No information was recorded from the client (the applicant). Under the heading “Employer Comments”, the following was recorded:

Employer found out Jesse was pregnant and felt there was not enough time to properly train.

39Mr. Conlon confirmed that he entered the information on the form. He testified that to the best of his knowledge, the information came from the personal respondent. He agreed with Mr. Laplante that he could not be completely certain that the information had come directly from the personal respondent but it definitely came from someone at the License Bureau. He does not usually speak to the person who is placed with the employer (the client) as that is the job of the Counselor. The area on the form that he completed is the area for information received from the employer. There is a different area for information received from the client and this area is blank. Mr. Conlon testified that he does not recall ever speaking to the applicant. On cross-examination, he

agreed with Mr. Laplante that it is conceivable that the information had come from the applicant although he doubted that it had since it is not his job to speak to the clients whereas it is his job to speak to the employer. He said that to the best of his knowledge, the information came from the personal respondent.

40Mr. Conlon was asked why the form is dated August 15, 2008, which was almost two months after the applicant’s employment ended. He indicated that this is unusual as he would usually make the contact soon after the employment ends. He indicated that the agency must have known that the employment had ended because the parties are required to file weekly statements of hours worked. He was certain that the subsidy would not have continued beyond June 24, 2008, when the employment ended. He suggested that the contact with the employer could have been delayed because of his vacation schedule.

41The personal respondent testified that he called YES to tell them that he was terminating the applicant’s employment on the day that he discharged her. He testified that he did not mention her pregnancy at that time. He testified that he did not have any contact with YES about the applicant after her employment ended and did not talk to YES about her in August 2008, when the form was completed.

42Mr. Conlon testified that he did not know why the area on the form pertaining to information from the client was not filled in. He explained that the procedure is for the Counselor to decide whether to contact the client. He does not usually discuss files with the Counselor assigned to the case.

Analysis

43Section 5(1) of the Code provides:

5. (1) 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.

44Section 10(2) provides:

(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

45Applications under the Code are decided on a balance of probabilities. The applicant must show that it is more probable than not that the respondent discriminated against her because she was pregnant. To do this, she does not have to show that the only reason for the termination of her employment was her pregnancy. She can establish discrimination if she can show that her pregnancy was a factor that contributed to the decision to terminate the employment (see, for example, Holden v. CNR (1990), 1990 CanLII 12529 (FCA), 14 C.H.R.R. D/12; 112 N.R. 395 (F.C.A.) and Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252; 95 N.R. 81, 10 CHRR D/6205 (SCC).

46In this case, the question is thus whether it is more probable than not that the applicant’s pregnancy was a factor that contributed to the decision to terminate her employment.

47In my view, and for the reasons set out below, the evidence in this case establishes that it is more probable than not that the fact that the applicant disclosed that she was pregnant was a factor that contributed to the decision to terminate her employment.

48There is evidence to support the respondents’ contention that there were performance issues concerning the applicant’s employment. In particular, there is evidence that the applicant did transactions slowly and that she was soft spoken.

49The personal respondent testified that he spoke to the applicant two times about performance issues prior to the termination, once about her speed and once about her low voice. He also criticized her style of keyboarding, urging her to use two hands. He testified that the primary reason for the decision to terminate the applicant’s employment was her slowness and that there were numerous complaints from customers about her slowness.

50On the other hand, Ms. Barton, the senior employee who acts as the Office Manager if the personal respondent is not there, could not recall hearing any complaints from customers.

51Ms. Crawford did recall hearing complaints from customers that the applicant was slow. She recalled speaking to the applicant about the need to speak up so that customers could hear her but did not recall speaking to her about her slowness.

52The evidence indicates that any newly hired Customer Service Representative will likely do the job slower than experienced Customer Service Representatives. In part, this is because there is a lot to learn in respect of the types of transactions and how to process them. As well, there is evidence that there is a learning curve with respect to how to do the data entry.

53The three witnesses who are from dealerships testified that their impression was that the applicant was exceptionally slow, even for a beginning Customer Service Representative. After one experience of having her process a transaction, they each endeavoured to avoid having her for future transactions.

54The respondents submit that the YES “Record of Monitoring” form demonstrates that there were performance issues during the first two weeks of the applicant’s employment and before she disclosed that she was pregnant. However, as the applicant points out, the Record of Monitoring form indicates only that the applicant was “very quiet”. Nothing was documented on the form about excessive slowness, despite the fact that, according to the personal respondent, it was the applicant’s excessive slowness that was the main issue. Despite the concern about quietness, at the time of the first week contact, Mr. Conlon understood from the employer that the applicant was “doing well”.

55At the time of the second week contact, the information from the employer was that the applicant was “working through her quietness” with improved confidence. Mr. Conlon also recorded “all good”, which suggests that there were no significant issues other than the quietness, which was apparently improving.

56The applicant’s evidence is that the personal respondent told her that the reason for the termination was that the applicant was pregnant. This evidence is supported by the YES “Early Termination” form which indicates that the reason for the termination was that the employer found out the applicant was pregnant and there was not enough time to properly train her. In addition, there is no indication on the Early Termination form that performance issues were a factor.

57Taking the evidence as a whole, I find that there were performance issues that likely contributed to the decision to terminate the applicant’s employment. I accept the evidence from the personal respondent and the witnesses called by the respondents that the applicant was slow to learn the job and that she was soft-spoken and that both of these issues led to some complaints from customers. However, I also find that it is more probable than not that the fact that the applicant disclosed that she was pregnant was a factor that contributed significantly to the decision to terminate her employment.

58I therefore conclude that the respondents infringed the applicant’s right to equal treatment in employment without discrimination on the grounds of sex.

Remedy

59The 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:

1. 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.

2. 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.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.

Wage Loss

60An applicant who has experienced an infringement of her rights in an employment context is generally entitled to monetary compensation for the loss of earnings that the applicant experienced as a result of the infringement. The applicant is entitled to be “made whole” through compensation for the earnings she would have earned had the infringement not occurred, subject to her duty to mitigate these losses.

61In this case, there is some uncertainty about what would have happened if the infringement had not occurred. I have accepted that there were performance issues. While these might have resolved, as the applicant argues, the respondent submits that there was little improvement during the three weeks of the employment.

62Another factor in this case is that the respondents were receiving a wage subsidy from YES. The YES placement was for three months so the wage subsidy would have ended by approximately September 4, 2008.

63On the basis of the evidence called by the respondents, I accept that there were concerns about the applicant’s speed in doing transactions. On the basis of the same evidence and the YES documents, I also accept that there were concerns about the applicant’s soft voice. While I have found that the decision to terminate the employment was precipitated by the discovery that the applicant was pregnant, I do accept that there were legitimate performance issues that would have caused the employer to carefully review the question of whether to continue employing the applicant beyond the time when the subsidy was to end.

64While it is not possible to know what would have happened but for the pregnancy and the termination of employment after the pregnancy was disclosed, I conclude that it is more probable than not that the employment would not have continued past the three month period when the wage subsidy would have ended. I therefore conclude that it is more probable than not that the employment would have ended by approximately September 4, 2008, even if the Code infringement had not occurred.

65I conclude that the applicant is entitled to compensation for wage loss for the period from June 26, 2008 to September 4, 2008, a period of ten weeks. The applicant earned $9.25 per hour. Based on a forty hour work week, this comes to $370 per week and $3,700 for the period from June 26 to September 4, 2008.

66The applicant testified that she had some income from employment in the period following the termination of her employment with the corporate respondent. She worked on an occasional basis for cash at a small store and worked about one day a month as an occasional teaching assistant. The latter employment occurred only after the start of the school year, which would have been after September 4, 2008. The applicant was somewhat vague about her earnings from the store but indicated that she worked at the store about one day per week at approximately $9 an hour. I accept that the applicant likely earned no more than $100 for the ten-week period. This amount must be deducted from the compensation for wage loss. As a result, the applicant is entitled to $3,600 for wage loss resulting from the Code-related infringement.

Injury to Dignity, Feelings and Self-Respect

67Section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), the Divisional Court discussed the factors that should be considered when determining the amount of compensation for injury to dignity, feelings and self-respect. At paragraph 153, the Court said:

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.

68The applicant testified that she felt very sad and stressed after her employment was terminated. She felt vulnerable and shocked by the action of her employer. She consulted her family doctor but then required medical attention for an unrelated medical condition. This required treatment from a specialist. She testified that she did not receive any medical treatment or counseling in respect of the effects of the loss of her employment. The applicant is young and has limited experience in the workforce. I accept that the applicant experienced injury to her dignity, feelings and self-respect as a result of being fired after she disclosed that she was pregnant.

69This Tribunal has decided only a few cases in which it has been found that an employee’s employment was terminated because of pregnancy contrary to the Code. In Maciel v. Fashion Coiffeurs, 2009 HRTO 1804, the applicant was awarded $15,000 in compensation for injury to dignity, feelings and self-respect. In that case, the Tribunal found that pregnancy was the only reason for the termination. The Tribunal found that the applicant suffered from a lasting depression that required medical treatment.

70In Osvald v. Videocomm Technologies, 2010 HRTO 770, the applicant was awarded $10,000 in compensation for injury to dignity, feelings and self-respect. In that case, the Tribunal found that there were performance issues that contributed to the decision to terminate the applicant’s employment but that factors related to pregnancy had also contributed. The applicant had suffered a miscarriage and was immediately terminated. The adjudicator accepted the applicant’s evidence that she had been “traumatized by the experience” and made to feel “like garbage”. It took the applicant a long time to regain the confidence she lost and this delayed her ability to return to the workforce.

71In the present case, the applicant felt humiliated, sad and stressed. She consulted her doctor but received no counseling or treatment. There was then an intervening, unrelated medical condition that did require medical attention.

72On the basis of the available evidence I conclude that the applicant is entitled to compensation for injury to dignity, feelings and self-respect in the amount of $10,000.

ORDER

73The respondents are jointly and severely liable to pay to the applicant $3,600 as compensation for loss of earnings less statutory deductions and $10,000 as compensation for injury to dignity, feelings and self-respect.

74These payments must be made within 45 days of the date of this Decision. If the payments are not made within 45 days of the date of this Decision, the respondents shall pay post-judgement interest on the amount not paid in accordance with the Courts of Justice Act, from the date of this Decision.