Jeannette Flynn v. Varicent Software Incorporated, 2010 HRTO 191

Human Rights Tribunal of Ontario

Between:

Jeannette Flynn Applicant

-and-

Varicent Software Incorporated Respondent

Interim Decision

Adjudicator: Eric Whist Date: January 27, 2010 Citation: 2010 HRTO 191 Indexed as: Flynn v. Varicent Software

1This Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), alleges that the respondent discriminated against the applicant on the grounds of sex in respect of employment. The Application alleges that the respondent's decision to terminate the applicant's employment on June 9, 2009 was a result of the applicant's announcement on June 5, 2009 that she was pregnant.

2The respondent requests that the Application be dismissed on the basis that the applicant signed a Full and Final Release (the "Release") at the time of her termination that releases the respondent from any claims under the Code. The respondent has provided written submissions in support of this request as well as copies of correspondence exchanged between the respondent and applicant in relation to the Release and a copy of the Release purporting to be signed by the applicant.

3The respondent further submits that the decision to terminate the applicant's employment was made for non-discriminatory reasons. The respondent submits that a decision to terminate the applicant's employment was in order to replace her with someone with stronger skills and that this decision had been made prior to June 5, 2009. In support of this contention the respondent provides documents dating from January 7, 2009 to June 4, 2009 related to a confidential search for a new employee including e-mails related to the screening of resumes and job interviews, a formal job offer to the successful candidate and a signed acceptance by this candidate of a job offer.

4The applicant submits in her Reply that the Release was never completed. She states that as she did not submit to the respondent the original copy of the Release with the correct date the Release is invalid. The applicant further argues that the respondents never evaluated her job performance or communicated concerns about her performance. She argues that the contention that her job performance was poor is unsubstantiated and unmerited. She asks that her Application proceed.

Decision

5I am satisfied that to be fair, just and expeditious, the Application should proceed to a one day hearing. At the hearing the parties should be prepared to address both the issue of whether the Application should be dismissed on the basis that the applicant signed a full and final release and whether the respondent's decision to terminate the applicant's employment was a violation of the Code. Pursuant to the Tribunal's Rules of Procedure (see, in particular, Rule 1.7 (g)) it will be up to the Vice-chair presiding at this hearing to determine and direct the order in which the issues will be considered and determined.

6I am not seized of this matter.