Beata Philip v. United Way/Centraide Ottawa, 2010 HRTO 1774

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Beata Philip

Applicant

-and-

United Way/Centraide Ottawa and Valerie Parker

Respondents

DECISION

Adjudicator: Brian Cook

Date: August 30, 2010

Citation: 2010 HRTO 1774

Indexed as: Philip v. United Way/Centraide Ottawa

APPEARANCES BY

Beata Philip, Applicant ) On his own behalf

United Way/Centraide Ottawa ) George Vuicic, Counsel and Valerie Parker, Respondents )

1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges discrimination in employment on the grounds of place of origin. The organizational respondent is a social service agency and the personal respondent is the Human Resources Manager.

2The applicant was employed by a temporary agency and was sent to the organizational respondent for what was to be a two-week contract. The respondents terminated the contract after less than one day on the grounds that the applicant was not working out. The applicant believes that the real reason for the termination of the contract was her place of origin. The applicant self-identifies as a person of European origin.

3The Application was heard on August 16, 2010. I heard evidence from the applicant, the personal respondent and Kelly MacDonald. At the relevant time, Ms. MacDonald was employed by the organizational respondent as an Administrative Assistant. She worked in that capacity from September 2008 to January 2009. She is now employed by the Government of Canada.

BACKGROUND

4The applicant testified that she has worked as an office worker for a number of different temporary work agencies over a period of about ten years. She registered with the temporary agency that sent her to the organizational respondent in November 2008 and the assignment with the organizational respondent was her first assignment with the agency.

5Ms. MacDonald testified that in November 2008 there was a staffing shortage because people were on leave. She needed some help to do the extra work that fell to her and it was agreed that a temporary worker was required for a two-week period starting November 20, 2008. The employment agency was contacted and the applicant was sent to fill the position.

6The applicant testified that when she reported to work she had to wait for about half an hour in the reception area. She had expected to be met by the personal respondent but she was tied up in a meeting. Ms. MacDonald came to meet her but she was delayed because of a meeting as well. Ms. MacDonald testified that the delay was approximately ten minutes. Ms. MacDonald testified that she apologized to the applicant for the delay, and that the applicant responded coldly and made a sarcastic remark about the delay. The applicant did not agree that she responded coldly but she did agree that she thought that the delay was inappropriate.

7Ms. MacDonald then took the applicant around the workplace showing her where the washrooms were and telling her about the kitchen facilities. She also introduced the applicant to people in the workplace. During this time, Ms. MacDonald asked the applicant questions that the applicant alleges were inappropriate and personal. For example, Ms. MacDonald asked her where she came from, if she was Polish and how she felt about Canada. She told Ms. MacDonald that she was Polish and that she liked some things about Canada but did not like other things.

8Ms. MacDonald agreed that she asked the applicant some questions about herself but this was in the nature of general questions and she was just making small talk. She testified that a family member is married to someone of Polish origin and so she is familiar with a Polish accent. She noticed that the applicant had an accent, and asked her if she was Polish. Ms. MacDonald agrees that she asked the applicant about her experiences in Canada. She was expecting some general response about things like Canadian winters and was surprised when the applicant replied that she was not enjoying life in Canada. She asked why this was and the applicant explained that she had experienced difficulties in places she had worked because some people were not nice and were judgemental. Ms. MacDonald testified that she assured the applicant that the United Way is committed to multiculturalism and that this was reflected in the workforce employed by the organizational respondent. However, she was surprised by the applicant's responses to her general small talk questions and formed the impression that the applicant was aggressive and somewhat rude.

9The first task that the applicant was assigned was opening and logging returned mail. This was mail sent to potential donors and the agency needs to keep track of returned mail in order to keep its donor lists up to date. The applicant was required to open the mail and enter the donor information on a computer. After doing this task for some time, Ms. MacDonald came by to see how she was doing. Ms. MacDonald noticed that the applicant was discarding the envelopes and told her that it was important to keep the envelopes. She was surprised when the applicant started to argue with her about why it was necessary to keep the envelopes. She testified that she found it strange that the applicant required an explanation for why the envelopes should be kept. She thought that as a temporary worker the applicant should accept that the organization needed the envelopes without requiring a detailed explanation. However, she explained why it was necessary to keep the envelopes. Even after this the applicant continued to express the view that it was not necessary to keep the envelopes. However, she did agree to keep the envelopes. In her testimony, the applicant confirmed that she expressed the opinion that it was not necessary to keep the envelopes. However, she noted that she did follow the instructions to keep the envelopes after she was told to do so.

10On the basis of this encounter and the applicant's demeanour when they first met, Ms. MacDonald felt that the applicant might not be an appropriate person to fill the two-week contract. She spoke to a senior person in the office about her concerns and was advised to give the applicant a bit longer to see if things improved.

11While the applicant was doing the letter opening job, the personal respondent came by. She apologized to the applicant for not coming to see her earlier. The applicant testified that the personal respondent seemed to be in a hurry and somewhat flustered. She tried to reassure the personal respondent that she did not really mind that the personal respondent had not greeted her first thing that morning. However, the personal respondent "just shrugged". The applicant testified that this made her feel discarded, unwelcome and put down. In her view, the personal respondent reacted in this way because of discrimination against her based on her place of origin.

12The personal respondent testified that she has no recollection of this interaction as it was very brief and occurred almost two years ago. Ms. MacDonald testified that she did recall the interaction. She did not feel that the personal applicant was in any way flustered. The personal respondent had been having a busy morning and simply came by to say hello and to apologize for not seeing the applicant earlier. Ms. MacDonald testified that the personal respondent was quite sincere and did not shrug or otherwise indicate anything dismissive of the applicant.

13In the afternoon, the applicant was assigned another job, consisting of handwriting donor address labels. She had no difficulty doing this job. After awhile, Ms. MacDonald came by to see how she was doing. The applicant testified that Ms. MacDonald seemed very pleased with her labelling and complimented her on her writing. The only criticism was with regard to how she had written the numeral 9. Ms. MacDonald asked her to write it differently so it would not be confused with the letter g. The applicant testified that she did not agree with Ms. MacDonald that there was a problem but she did agree to try to write the numeral in a different way.

14Ms. MacDonald testified that she did compliment the applicant on her writing generally but she was concerned that the numeral 9 could be mistaken for a g. Ms. MacDonald testified that the applicant argued with her about this, maintaining there was nothing wrong with the way she had written the numeral. Ms. MacDonald was surprised and upset by this reaction. She indicated that, on the basis of the conversation with the applicant in the morning in which the applicant seemed to have some concern about how she might be treated in the office, apparently based on previous experiences, she had tried to be especially nice to the applicant. She couldn't understand why the applicant was being so argumentative. She went back to the senior administrator she had talked to earlier and explained that it seemed that the applicant was not working out. She also talked to the personal respondent who called the temporary agency to cancel the contract. The personal respondent did not talk to the applicant at that time.

15The employment agency needed to speak to the applicant to tell her that the contract was cancelled. The personal respondent told Ms. MacDonald to give the applicant a private office for this conversation so that she would have some privacy. Ms. MacDonald testified that the applicant seemed upset about the offer of the private office. The applicant argued with her about the need to speak to the agency and why the conversation had to be private. However, the applicant did speak to the agency in the private office. Ms. MacDonald testified that the applicant had a long discussion that lasted about 15 minutes. The applicant came out of the office and demanded to know from Ms. MacDonald why she was being asked to leave. Ms. MacDonald told her that she was sorry but it seemed that the applicant was not working out. The applicant was getting increasingly agitated and Ms. MacDonald decided that the personal respondent should deal with the situation. The personal respondent told the applicant to hand in her timesheet and leave the workplace. Ms. MacDonald testified that the applicant became quite aggressive and loud. The personal respondent was trying to calm the applicant who was "freaking out".

16The applicant testified that she became upset when she was told to call the agency from a private office. She felt this was inappropriate and that she should have called from her own desk. She agreed that she was upset but indicated that her upset was appropriate given how she was being treated. She believes that the basis for the treatment was discrimination on the basis of her place of origin.

17There was then discussion about paperwork that needed to be sent to the employment agency so the applicant could be paid for the day. The applicant indicated that the package of information from the agency was eleven pages long. She sat at her desk to try to read it but it was hard to concentrate because it was noisy in the area. She had to phone the agency again to get the fax number. She testified that during this conversation, one of the organization respondent's directors came by and asked her not to speak so loudly as it was disruptive. She felt this was not warranted because everyone else in the area was talking loudly. The personal respondent suggested that the applicant could send the paperwork to the agency the next day. The applicant submitted that this was further evidence of discriminatory behaviour because the paperwork had to be faxed. She did not have a personal fax machine and wanted to use the machine at the office. She was allowed to use the office fax machine and then left the workplace.

Conclusions

18The applicant alleges discrimination in employment or contract on the basis of place of origin, contrary to sections 3 and 5(1) of the Code, which provide:

3. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

4. (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.

19The applicant self-identifies as European. She speaks English with an accent and wears a head scarf.

20The person the applicant had the most to do with during the day in question was Ms. MacDonald.

21In the adjudication of human rights cases such as this, the applicant must first make out allegations which, if they were accepted as truth, and without a response from the respondent, would show infringement of the applicant's Code-protected rights. The applicant has met that test. She alleges that what was to be a two-week contract ended after less than one day and that the reason for this was her place of origin.

22The onus then shifts to the respondents who must demonstrate a non-discriminatory basis for the matters alleged. The applicant must then show that the respondents' explanation is not valid and that there was in fact discrimination based on a Code-protected ground. The applicant does not have to prove that the alleged discriminatory event (in this case the termination of the contract) was entirely due to discrimination, but she does have to show that there is a connection between the event and a Code-protected right.

23In my view, the respondents have provided a complete explanation for why the contract was ended after less than one day. The explanation is that the applicant was argumentative and confrontational. The applicant believes that the termination of the contract must have been for discriminatory reasons because she did the tasks assigned well and was even complimented by Ms. MacDonald. I accept the evidence of Ms. MacDonald that the applicant was argumentative about how to do the envelope job and also argumentative concerning how the applicant wrote the numeral 9. The applicant agreed that she did argue about why it was necessary to keep the envelopes and also did not agree that there was any problem with the way she wrote the numeral 9. Since the applicant was a temporary worker on the first day of the contract, I can understand why Ms. MacDonald found the applicant's behaviour to be inappropriate, and in my view, this explains the opinion that she developed that the applicant was not working out. Since the purpose of the contract was to provide some temporary assistance to Ms. MacDonald, it is also understandable why the personal respondent accepted Ms. MacDonald's opinion and terminated the contract.

24In regard to anything specific that might have suggested discrimination towards her, the applicant identified, in particular, the personal respondent's demeanour during their brief midmorning conversation. According to the applicant, the personal respondent seemed in a hurry and was flustered and was then dismissive of the applicant's attempts to put the personal respondent at ease and shrugged. If the personal respondent was flustered and rushed, this would seem to explain why she was not more engaging in her interaction with the applicant. Even if she was dismissive and shrugged, I am not satisfied there is any basis to interpret this as discrimination on the basis of place of origin.

25The applicant's allegation that the suggestion that she phone the temporary agency from a private office was in some way discriminatory is also difficult to understand. The respondent's explanation that the applicant was asked to make the call from a private office in order to give her privacy when receiving the news that the contract was over seems very reasonable.

26With regard to the events after the applicant heard that the contract was over, the evidence is clear that the applicant was very upset. This is clear from the evidence of Ms. MacDonald and the applicant. I see no basis to agree with the applicant that the suggestion that she send the paperwork to the temporary agency the next day was improper and nor was the request that she lower her voice. Even if they were for some reason improper, the applicant provided no evidence to show that they were prompted by discrimination.

27For all these reasons, I find that there is no evidence to support the allegation that the applicant experienced discrimination on the grounds of place of origin.

ORDER

28The Application is dismissed.