HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jennie Charbonneau
Applicant
-and-
Atelier Salon & Spa, Enzo Rubino and Scott Mirren
Respondents
decision
Adjudicator: Mary Truemner
Indexed as: Charbonneau v. Atelier Salon & Spa
AppearanceS BY
Jennie Charbonneau, Applicant ) Wayne Pitterson,
) Representative
Atelier Salon & Spa, Enzo Rubino and ) Christopher Scott,
Scott Mirren, Respondents ) Counsel )
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O 1990, c. H.19, as amended (the “Code”), filed on March 23, 2009. It alleges discrimination in employment based on sex and disability. The applicant confirmed at the hearing that both grounds were cited in the Application because the alleged discrimination was related to her pregnancy.
Decision
2For the reasons that follow, I find that it is more probable than not that the applicant’s pregnancy was a factor that contributed to the respondents’ decision to refuse the applicant employment. The respondents therefore discriminated against the applicant on the basis of her sex. The applicant is entitled to compensation for loss of earnings and for injury to her dignity, feelings and self-respect. Having found discrimination on the basis of sex, there is no need for me to address the applicant’s position that pregnancy is a disability.
Facts
3Many of the facts were not in dispute. Scott Mirren and Enzo Rubino, the personal respondents, are partners who own and manage the salon and spa where the applicant and approximately 20 other stylists worked. The applicant was hired as a student in 2002, and continued to be employed by the respondents in hair or make-up, mostly part-time, until she quit her job at the end of the summer of 2008 in order to begin a new job in Florida. When her new job did not work out, she contacted the respondents in October 2008 from Florida to ask if they would rehire her, and she told them that she was pregnant. The respondents refused to rehire her.
4The parties did not agree on the facts with respect to how the respondents reacted to the applicant’s request to be rehired; therefore, the applicant and the personal respondents gave evidence, focusing on the applicant's request to return to work and the response that she received from the personal respondents. I deal only with the facts that are relevant to the allegation of a violation of the Code.
The Applicant’s Evidence
5The applicant testified that she spoke with a friend in August 2008 about a job in Florida, and then provided the respondents with approximately three weeks notice that she was terminating her employment. She testified that the personal respondent, Mr. Mirren, encouraged her to contact the salon if she were ever to decide to leave her new job in Florida.
6The applicant became pregnant in September 2008 with a due date of June 12, 2009. In part, she wanted to return to Canada in order to be close to family, to have health coverage, and to work a sufficient number of months to qualify for employment insurance to cover a maternity leave after the baby was born. She called the salon on October 20, 2008 from Florida when she realized that she wanted to return to Canada. The applicant spoke on the phone with Mr. Rubino’s wife. She told Ms. Rubino that she was pregnant, and that she wanted to come back to the respondents’ salon. Ms. Rubino said that she would have to speak with one of the two personal respondents.
7On October 21, 2008, Mr. Mirren returned the applicant’s call. The applicant told Mr. Mirren that she wanted her job back, and that she was pregnant. She testified that Mr. Mirren was very rude to her and that he hung up the phone, saying, “No, it doesn't work for us because you will be going on maternity leave." The applicant testified that Mr. Mirren called her back ten minutes later, and she told him that she thought she could trust the respondents and not have to lie to them about her pregnancy. She testified that he said, “Under any other circumstance, we would love to have you back," and then he started explaining business matters to the applicant about the effect her expected maternity leave might have on clients. She tried to assure him that her maternity leave would not prejudice the clients, but the conversation ended quickly, and she was very upset. She asked him to take time to reconsider.
8On October 28, 2008, Mr. Mirren called back and said that they had reconsidered and decided not to take her back to work. It was a short conversation.
9On November 10, 2008, the applicant was back in Canada and received a call from Mr. Rubino. She testified that he appeared to be apologetic on the telephone, and told her to give them a call after she had the baby. He said that they would reconsider then.
10The applicant testified that she was unable to find work before the birth of the baby so that she never qualified for employment insurance to provide an income after the baby was born.
11After the applicant's testimony, the respondents’ counsel made a motion for the Application to be dismissed on the basis that the applicant had failed to make out a prima facie case. A prima facie case is one which covers the allegations made, and which, if it is believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondents. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.) at para. 28. Upon establishing a prima facie case, the burden shifts to the respondents to provide a credible and rational explanation demonstrating, on a balance of probabilities, that their actions were not discriminatory.
12Through her testimony, the applicant made the case that the respondents refused to hire her for reasons which include that her maternity leave “doesn't work” for the respondents. If true, then a prima facie case is made out. Maternity leaves flow so directly from pregnancy and giving birth that treating a woman differently because she plans to take a maternity leave amounts to discrimination because of sex. I therefore denied the respondents’ request to dismiss the Application after the applicant’s evidence was presented, and advised the respondents that they needed to present their evidence.
The Respondents’ Evidence: Scott Mirren
13The next witness to testify was the personal respondent and owner of the salon, Scott Mirren. He testified that the applicant was an excellent worker who began working with the respondents in 2002. The respondents trained the applicant and she built up a good clientele.
14Mr. Mirren explained that the respondents routinely train young stylists as apprentices who are provided clients by the respondents, particularly if a stylist leaves or needs to go on a leave. He testified that the salon constantly has young people training and there is always potential for them to absorb the clients of other staff who might leave. For example, when the applicant broke her leg and was absent for several months, the respondents moved her clients to other employees at the salon who were at the applicant’s level of experience. When she came back, her clients were not returned to her, but Mr. Mirren implied that she could have built a clientele up again if she had been more committed to her work, and spent more time in the salon. Instead, he observed that “she didn’t really make an effort,” so that her earnings diminished considerably.
15In 2008, Mr. Mirren explained, the applicant was receiving minimum wage with commissions. Mr. Mirren referred to a list of the applicant's earnings in 2008 to show that when she came back from her leave once her leg had sufficiently healed, her biweekly salary was significantly lower than it had been earlier that year. The applicant does not allege that her reduced earnings flowed from her injury, nor allege discrimination on the basis of disability related to the injury. I therefore refer to Mr. Mirren’s testimony on the subject merely to describe the respondents’ evidence that clients could be easily transferred among the staff, and that a staff member might start with few clients, but increase the number with sufficient effort.
16In August 2008, Mr. Mirren told the applicant that he thought her idea to move to Florida was good because she would get other experience. Mr. Mirren did not challenge the applicant’s claim that he encouraged her to contact the respondents if her Florida job was not satisfactory so that she could return to work for them. He said that the salon had a cake for the applicant at a staff gathering, and wished her well before she left for Florida.
17During the last three weeks of her time in the salon, the respondents told the applicant’s clients that she was leaving, and the respondents found other staff to look after them. Mr. Mirren explained that the applicant’s clients would remain with the new staff even if the applicant had returned after quitting because the respondents try to minimize the disruptions to the relationships between the clients and the staff. The respondents did not hire anyone to replace the applicant, because their existing staff was able to handle client demand after the applicant quit.
18Mr. Mirren testified that when the applicant called him from Florida to get her job back, there was no position for her because the respondents had sufficient staff to serve the clients. He explained that the respondents only advertise for stylists when they have expanding client needs to justify an expansion in staff. The respondents were not advertising for stylists when the applicant called to be hired again. He explained that there would not have been any money for the applicant if she had returned to work because she would not have had any clients.
19Mr. Mirren testified that it was never in his mind not to rehire the applicant because she was pregnant. He omitted to say whether it was on his mind not to hire her on the basis that she would probably require a maternity leave some months later.
The Respondents’ Evidence: Enzo Rubino
20The personal respondent, Mr. Rubino, testified with respect to the training the respondents provide for young staff members including the applicant. The salon prides itself on providing apprentices and less experienced stylists with a good practical education, often in the context of government training programmes. He testified that if staff leave for some reason, then the respondents often hire them back unless they are not the “right fit.” In contrast to Mr. Mirren’s testimony, he did not say that staff will only be rehired if a surplus of clients requires more stylists. Mr. Rubino made it clear that there was significant flexibility in the assignment of clients to stylists because the salon was always looking for ways to “feed” clients to their learning employees.
21Mr. Rubino testified that he had seen “a hundred girls like Jen [the applicant], and hundreds that have had babies.” He said that if employees want to come back to work after maternity leave, then the respondents accommodate their return, but the applicant’s situation was unusual because she had quit. He could think of no employee who had quit her job, had become pregnant and had requested her job back.
22Mr. Rubino was questioned about any reprimands he may have given the applicant while she was employed by the salon. He remembered that he had provided some reprimands, but could not remember what they were for, and he did not suggest that they were a reason for refusing to rehire her.
23When Mr. Rubino was questioned as to whether the applicant would be good for business, he replied, “I am not so sure she would," but he admitted that his partner, Mr. Mirren, thought the applicant was a very good employee. Mr. Rubino’s own explanations for why the applicant might not be good for business were very vague. They related to her resistance to his suggestion at an earlier stage in her employment that she register for a government programme for new stylists, but he let her decide for herself. They also related to her career aspirations in makeup when the salon did not ultimately have a client demand for makeup services. He said that he remembered that he had given her a few reprimands, but he could not remember what she did to justify them and had no records of them. He never had any occasion to discipline her. He said that when she requested from Florida that she be permitted to return to work, he and Mr. Mirren felt the shuffling of clients again would be a problem. He also said, “We really didn’t have the clients for her, and it wouldn’t have benefited any of us.”
24Mr. Rubino agreed that he called the applicant in November 2008 and that he said, “We can discuss this upon your return, after your pregnancy." He said that he chose “after the pregnancy" as the point in time to begin discussing whether the applicant should return to work, because “it would have been more seamless for the staff and clients, and customers are number one." He said that he would agree to bring the applicant to the salon after her pregnancy because he “was going along with [his] partner.” He also stated that he was more than willing to consider her employment after the pregnancy.
Findings and Analysis
25Section 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.
26Section 10(2) provides:
10(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.
27Applications under the Code are decided on a balance of probabilities. The applicant must show that it is more probable than not that the respondents discriminated against her because she was pregnant. To do this, she does not have to show that the only reason refusing her request to return to employment was her pregnancy. She can establish discrimination if she can show that her pregnancy was a factor that contributed to the decision to not to rehire her. 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).
28In 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 respondents’ decision not to rehire her.
29The parties presented divergent views of what was said to the applicant by the respondents in their telephone conversations, particularly Mr. Mirren’s initial telephone conversation with the applicant on October 21, 2008. If believed, the applicant’s version of that conversation would amount to discrimination on the basis of pregnancy. The respondents’ version of their justifications for not rehiring the applicant, if believed, amounts to a non-discriminatory explanation for their refusal to rehire the applicant.
30The task that falls to me is to determine which of the witnesses’ stories presented is in “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.” See Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A). There is evidence to support the respondents’ explanation for refusing the applicant’s request to return to work, that explanation being that there was not a sufficient volume of clientele to keep her busy in October 2008. In my view, for the reasons below, the evidence also establishes that it is more probable than not that the applicant’s disclosure that she was pregnant was also a factor that contributed to the decision to refuse to rehire her.
31There are several reasons that lead me to prefer the applicant’s version of the telephone conversations over the respondents’ version. First, the applicant was candid about not remembering the exact words that Mr. Mirren used when she quit in August 2008, but she was clear that Mr. Mirren encouraged her to contact the respondents if she decided to leave her new job in Florida. Mr. Mirren was vague about what he said to her before she left, and given no denial by him that he made the comment as she testified he did, I find that he did so encourage her. My finding is consistent with the circumstances surrounding her departure whereby he arranged for a staff gathering to wish her well. It is also consistent with the testimony of Mr. Rubino that Mr. Mirren thought the applicant was a good employee, and that employees who leave the salon but later seek to return will often be permitted to do so “unless they will not be the right fit.”
32Second, the applicant's testimony about the telephone conversations with Mr. Mirren in October 2008 was detailed and logical. Mr. Mirren did not testify with respect to her claim that he became angry with the applicant or hung up on her, nor did he deny saying, “No, it doesn't work for us because you will be going on maternity leave." Instead, he made general statements about how the respondents would not refuse to rehire the applicant because she was pregnant. Mr. Mirren's omission of responding to the applicant's testimony about what he said in the October conversations allows me to draw an adverse inference with respect to the words that he used in those conversations, and I prefer her evidence. Given the above, and in light of the other evidence discussed below, I find that Mr. Mirren did tell the applicant that she could not return to work because she would be going on maternity leave, and that she would be able to return in any other circumstances. This finding necessitates the conclusion that one of the factors for the respondents’ refusal to rehire the applicant was her pregnancy.
33Finally, when I place my finding in the broader context of the salon’s practice, it makes sense, unlike a finding that non-discriminatory reasons were the only factors for not rehiring the applicant. Mr. Mirren testified that the reason for refusing the applicant’s request to return was because there was insufficient client demand to justify it. While Mr. Rubino testified that there were no clients for the applicant so that her return would not have benefited her or the respondents, significantly, Mr. Rubino also stated that the general criteria for rehiring employees related to whether they “fit”. I find that the applicant did “fit” the salon with respect to her performance because Mr. Rubino testified that he was more than willing to take her back after the pregnancy, because he said that Mr. Mirren thought she was a good employee, and because it would otherwise make no sense for Mr. Mirren, if dissatisfied with the applicant when she quit, to send her off with a staff gathering, complete with cake, and to tell her to contact him if the new job didn’t work out.
34Mr. Rubino and Mr. Mirren described a work culture whereby the staff could be flexible, taking overflow or working reduced hours depending on the work volume. Their description of the flexibility in the salon for moving and assigning clients satisfies me that the respondents could easily have rehired the applicant and allowed her to try to build a clientele again, as they expected her to do after her return from the leave caused by her injured leg.
35In summary, taking the evidence as a whole, I find that there were clientele issues that likely contributed to the decision not to rehire the applicant. However, I also find that it is more probable than not that the applicant’s disclosure that she was pregnant was also a factor in the respondents’ decision. I therefore conclude that the respondents infringed the applicant’s right to equal treatment in employment without discrimination on the grounds of sex.
Remedy
36The 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 out to do to promote compliance with this Act.
37The applicant’s representative argued that the applicant is entitled to $20,000 in total “for loss of earnings, injury to feelings, self-respect and dignity” but the applicant provided no evidence for me to determine how to calculate any loss of earnings, and I therefore decline to do so.
38Section 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.
39The applicant testified that she felt very hurt and was very upset after Mr. Mirren told her that she could not return. She weighed her feelings of being treated badly against the respect she held for the respondents over the years of working with them, but after six months of deliberation, determined that she should file the Application. The applicant is young and experienced the discrimination at a time when she was particularly vulnerable because of her pregnancy and because she had no prospects of employment in Canada which would entitle her to receive employment insurance after the birth of the baby. I accept that the applicant experienced injury to her dignity, feelings and self-respect as a result of being refused employment after she disclosed that she was pregnant.
40Having reviewed other decisions by this Tribunal where discrimination because of pregnancy was found, I conclude that the applicant is entitled to compensation for injury to dignity, feelings and self-respect in the amount of $10,000. See Maciel v. Fashion Coiffeurs, 2009 HRTO 1804; Osvald v. Videocomm Technologies, 2010 HRTO 770; and Guay v. 1481979 Ontario, 2010 HRTO 1563.
Order
41The respondents are jointly and severely liable to pay to the applicant $10,000 as compensation for injury to dignity, feelings and self-respect.
42This payment must be made within 45 days of the date of this Decision. If the payment is 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.
Dated at Toronto, this 23rd day of August, 2010.
“Signed by”
Mary Truemner
Vice-chair