Michelle Ford v. Adriatic Bakery, 2010 HRTO 296

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Ford

Applicant

-and-

Adriatic Bakery, Elias Elhindi and Nahla Elhindi

Respondents

decision

Adjudicator: Brian Cook

Date: February 23, 2010

Citation: 2010 HRTO 296

Indexed as: Ford v. Adriatic Bakery

APPEARANCES:

Michelle Ford, ) Melissa Mark, Counsel Applicant )

Adriatic Bakery, Elias Elhindi and ) Nahla Elhindi ) G. Dewar Laing, Counsel Respondents )

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges discrimination and harassment in employment on the grounds of pregnancy.

2The applicant is Michelle Ford. The personal respondents are Elias Elhindi and Nahla Elhindi. The respondents called Lakte Bains, a caseworker at the Windsor Unemployment Help Centre, as a witness.

3The personal respondents own and operate the corporate respondent Adriatic Bakery (the “bakery”). The bakery produces baked goods that are sold on a wholesale basis to restaurants and businesses in the Windsor area. The operation includes a retail store where the baked goods are sold to the public. The baking is done in an area behind the store.

4The applicant was employed to help in the retail store. She started work on April 11, 2008. The employment relationship ended on September 10, 2008. The applicant became pregnant in July 2008. She experienced complications of pregnancy and it ended in a miscarriage on approximately September 3, 2008. The applicant alleges that the employment relationship ended because of discrimination and harassment on the grounds of pregnancy and complications of pregnancy. The respondents allege that the applicant quit work and deny any discrimination or harassment.

Decision

5For the reasons that follow, I find that the respondents did infringe the applicant’s Code-protected rights by telling her that her hours of work might be reduced and that she might be replaced. I find that the applicant has not established that she experienced harassment as she alleged and that the applicant’s employment was not terminated by the respondents.

Background Facts

6The applicant was referred to the respondents by the Windsor Unemployment Help Centre. The Centre helps unemployed people find work and offers a financial subsidy to employers. The applicant was hired at $9 an hour and the employer received a subsidy equivalent to the minimum wage for two weeks. For the remaining 14 weeks of the subsidy period, the employer received a subsidy of $4 an hour. The subsidy ended on August 14, 2008, about three weeks before the end of the employment relationship.

7The applicant was hired to help in the retail store and her regular hours were from 8:30 in the morning to 12:30 pm, six days a week. The product is baked by two bakers who work at night until about 3:00 am. Mr. Elhindi typically arrives at about 5:00 am and loads product into a van and makes deliveries. The applicant would arrive at 8:30 and open the retail store. Mrs. Elhindi usually came to the bakery at about 12:30 and took over the operation of the store. After Mr. Elhindi returned from making deliveries, he does various jobs in the store and the bakery and makes more deliveries.

8The respondents have two school age children. Mrs. Elhindi needs to be at home in the morning to make sure that they get safely off to school. She relied on the applicant to be available for work in the mornings. With advance notice, she could make arrangements for the children but she experienced a lot of inconvenience if the applicant did not report for work without giving advance notice.

9Prior to hiring the applicant, the respondents had hired other workers through the Unemployment Help Centre. Ms. Baines testified that there were never any complaints from those workers about their employment at the bakery.

10For the first three months of the applicant’s employment with the bakery there were no significant issues or problems except for a period of illness from June 10 to June 16.

11The applicant had a history of an etopic pregnancy about ten years earlier. In July 2008 she experienced symptoms that were similar to those she had experienced ten years earlier and so she was concerned. The applicant testified that she went to Dr. Belair, her family doctor, on about August 1. Dr. Belair did a urine pregnancy test which was negative. Dr. Belair referred the applicant for a blood test which was done on August 8.

12Some time after the blood test, Dr. Belair telephoned the applicant and told her that the blood test confirmed that the applicant was pregnant but that there was some concern about the pregnancy. The documents in this case do not include the August 8 blood test.

13The applicant testified that she talked to Mrs. Elhindi on or about August 8 and told her that she was pregnant and that there were concerns about the pregnancy. Mrs. Elhindi agreed the applicant told her this but not until later in August.

14The applicant testified that Dr. Belair telephoned her at home at about 7:30 in the morning on August 28 and instructed her to go to the hospital for further tests. She first went to work at 8:30 and reported to Mr. Elhindi that she had to go to the hospital and left work at 9:30. She testified that she had further blood tests at the hospital that showed that she was still pregnant but with complications.

15The results of this investigation are not part of the record but there is a report dated August 26 about a blood test that was done on August 25. It may be that it was this test result that prompted Dr. Belair to call the applicant on August 28.

16The applicant testified that she had an unpleasant conversation with Mr. Elhindi on August 28 before she left to go to the hospital. She testified that he asked “did the baby die inside you?” and said something to the effect that the baby would likely have had a bad life because she would have been a single parent. The applicant indicated that she was very upset by these comments but did not say anything for fear of losing her job.

17Mr. Elhindi denied saying such things to the applicant. He testified that at the time of the conversation on August 28 he did not even know the applicant was pregnant and that she only told him that she had to go to the hospital for tests. However, Mrs. Elhindi testified that the applicant had told her she was pregnant some time before August 28 and she had informed Mr. Elhindi. It therefore appears that Mr. Elhindi probably did know that the applicant was pregnant at the time of the August 28 conversation.

18The applicant came to work and worked her normal hours on Friday August 29 and Saturday August 30. She testified that she did not discuss her pregnancy or her health with her employers on those days. Monday September 1 was Labour Day and she was not scheduled to work. On Tuesday September 2 she woke up in pain and called in sick. She stayed off work until Tuesday September 9.

19The applicant testified that she called Mrs. Elhindi on Friday September 5 to ensure that Mrs. Elhindi had received a medical note authorizing her absence from work that had been delivered to the workplace by the applicant’s boyfriend. The applicant testified that Mrs. Elhindi confirmed that she had the note and told her that there were in the process of reviewing resumes with a view to hiring a new employee.

20Mrs. Elhindi testified that the applicant did not call on Friday September 5 but that she had called on September 3 to say that she would be off work until Monday September 8. She denied saying that they were looking to hire someone else and testified that they did not intend to hire anyone else.

21The applicant testified that she called in sick on Monday September 8. Mrs. Elhindi testified that the applicant did not call on September 8. She testified that she called the applicant on September 8 to find out why she had not come to work and the applicant told her she had slept in.

22The applicant worked her regular hours on September 9. She testified that she had a conversation with Mrs. Elhindi about her hours at the end of her shift. Mrs. Elhindi told her that they were going to hire another employee and indicated that the reason for this was “we have to protect ourselves”. The applicant further understood that her hours of work were going to be reduced.

23Throughout much of her employment with the bakery, the applicant had concurrent part-time employment with a laundromat located next door to the bakery. Mr. Elhindi testified that he had issues with L, the owner of the laundromat. Some of these related to the fact that L had in the past hired employees of his away to work in the laundromat. Mr. Elhindi testified that during the week of September 2, L came to the bakery on several occasions asking where the applicant was as L had expected her to be at work at the laundromat. Mr. Elhindi was annoyed that L was coming to his store asking about the applicant. As well, he felt that he could not disclose any information about the applicant’s health because of privacy concerns.

24The applicant testified that she told L about her situation prior to that week and that L had told her not to worry and to stay off work for two weeks.

25When the applicant went to work on the morning of September 10, Mr. Elhindi was there. According to the applicant, Mr. Elhindi told her he was upset about L coming to the bakery and that he did not want L in his bakery. He got agitated and said that he did not want the applicant in the bakery anymore either. The applicant testified that Mr. Elhindi became very agitated. He kicked a chair over and used foul Language. Her impression was that she had been fired. Later in her testimony she indicated that even if she had not been fired, she would not have wanted to return to work at the bakery because of this “altercation”.

26Mr. Elhindi testified that he did have a conversation with the applicant on September 10. He agreed that he was upset about L and told the applicant that he did not want L to come to his store. He denied that he said that he did not want the applicant in his store and specifically denied that he fired her. He testified that it is not in his nature to use foul Language and denied doing so during this conversation. He testified that it was the applicant who was very agitated and that she started screaming at him about her hours of work being reduced. He did not know what she was talking about. He agreed that he might have raised his voice in response to her screaming but testified that he did not kick a chair over and that at the time he was not physically capable of doing so because he was suffering from severe back pain.

27The applicant did not return to work after September 10.

28After the end of the employment relationship, the respondents did not hire anybody to replace the applicant. Instead various family members helped out. Ms. Mark pointed out that in the Response, the respondents indicated that they did hire someone else. The respondents indicated that this was a reference to the assistance that was provided by relatives.

29Ms. Baines testified that Mrs. Elhindi called her in September. She could not recall specifically what Mrs. Elhindi said, but she did recall that Mrs. Elhindi seemed upset that the employment relationship had ended and indicated that she had hoped to keep the applicant as an employee as she was a good worker. Ms. Baines told Mrs. Elhindi that since the placement had ended, the agency could not really be involved.

30The applicant did not call the Unemployment Help Centre after her employment with the bakery ended. She said that she was worried that the Centre would not help her after what had happened.

Analysis

31Section 5 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.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

Section 10(2) reads:

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.

Section 10(1) defines “harassment”:

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome

32Mr. Laing noted that by September 10, when the employment relationship ended, the applicant was no longer pregnant. On this basis, he suggested that the respondents could not have discriminated against the applicant on the basis of pregnancy. Ms. Mark referred to the Human Rights Commission’s Policy on Discrimination Because of Pregnancy and Breastfeeding, which provides that the term “pregnancy” must be understood to include all the special needs and circumstances of a pregnant woman, including miscarriage or stillbirth.

33In this case, I accept that discrimination or harassment related to pregnancy would include discrimination or harassment associated with the complications of pregnancy, including the end of the pregnancy.

34The applicant alleges that she experienced harassment on August 28 during a conversation with Mr. Elhindi when he made unwelcome remarks about her pregnancy. She alleges that she experienced discrimination on September 10 when the employment relationship ended.

35The evidence of the applicant and Mr. Elhindi differ in regards to what happened and what was said on August 28, the day that the applicant came to work briefly in the morning, and on September 10, the last day of employment.

36The usual test that is applied in cases where there is discrepant testimony is taken from the British Columbia Court of Appeal decision Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. … Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken.

37In regard to the conversation that occurred on August 28, the applicant alleges that Mr. Elhindi asked if “the baby had died inside her” or a question to that effect, and told her that the baby would not have had a good life as she would have been a single mother. Mr. Elindi does not dispute that he had a conversation with the applicant on August 28 but denies that he would have said such things. He testified that it would not have been in his character to say such things. He also testified that by August 28 he did not even know that the applicant was or had been pregnant.

38There are problems with the evidence of both witnesses in regard to this conversation. On the applicant’s version of the conversation, it seems that the conversation could only have occurred if Mr. Elhindi both knew about the pregnancy and knew that the applicant had miscarried. However, the applicant testified that by August 28 she understood that she was still pregnant although there were concerns. She did not discover that she had miscarried until September 3.

39Mr. Laing noted that it is not clear from the documentation when exactly the pregnancy ended. He noted that there is no documentation regarding the applicant’s visit to the hospital on August 28 and suggested that she may not have gone to the hospital on that date.

40On this point, I accept the evidence of the applicant. There is no doubt that she attended work only briefly on August 28. Mr. Elhindi agrees that the applicant told him she had to leave early to go to the hospital. As noted earlier, there is a lab report dated August 26 which raised further concerns about the pregnancy and it is very plausible that the applicant’s doctor phoned her about that test and told her to go to the hospital for further investigation.

41At the same time, the applicant is clear that as of August 28, her understanding was that she was still pregnant although there were, of course, concerns. Accordingly, on the basis of the applicant’s testimony, even if Mr. Elhindi knew about the pregnancy, he could not have known about the miscarriage because it had not yet happened. He could not therefore have made comments related to the end of the pregnancy, as the applicant alleges.

42While Mr. Elhindi testified that he could not have had this conversation on August 28 because he only found out later about the pregnancy, Mrs. Elhindi testified that she knew about the applicant’s pregnancy before August 28 and told her husband about it.

43The applicant has the onus to prove her allegations on a balance of probabilities. To do this in a situation where the only evidence is the testimony of those involved, the applicant must provide testimony that is in harmony with the preponderance of evidence. While there are problems with the testimony of Mr. Elhindi, there are also problems with the testimony of the applicant. I conclude that the applicant has not established that is more probable than not that the alleged comments were made on August 28.

44In regard to the conversation on September 10, there does not seem to be any dispute that, however it started, it quickly deteriorated to the point where the applicant and Mr. Elhindi were speaking with raised voices. The applicant says that Mr. Elhindi said that he didn’t want her in the bakery anymore and that he fired her. It does not seem to make sense that Mr. Elhindi would fire the applicant in such an abrupt manner. Even if the respondents had some concerns about whether the applicant would be a continuing reliable employee, there is no suggestion that she had done anything that would justify immediate dismissal. Moreover, the evidence was clear that the respondents relied on the applicant. Mrs. Elhindi testified that she was quite inconvenienced when the applicant was not available because of the difficulty of making other arrangements for her children.

45I also note the evidence of Ms. Baines, who testified that Mrs. Elhindi called her sometime after September 10 to indicate that she was upset that the applicant had suddenly quit and that the respondents had wanted the employment relationship to continue.

46Based on the available evidence, I conclude that it is more probable than not that the respondents did not tell the applicant that her employment was terminated.

47The applicant suggested that even if her employment was not directly terminated, it was in-directly, or constructively terminated. I cannot accept that this occurred either. While the applicant may have been told that her hours were going to be reduced and that she might be replaced altogether, it is not clear from the evidence that this would in fact have occurred. The reason why it might have occurred was the concerns about the applicant’s reliability as an employee as a result of the lost time and unavailability in the period prior to September 10. By September 10, the applicant’s medical situation had stabilized and there was no reason why she would have been unable to resume her regular hours and reliability.

48The applicant and Mr. Elhindi both agreed that at least part of the discussion on September 10 included Mr. Elhindi’s complaints about L and both agreed that he said that he did not want L in the bakery. It is possible that the applicant misunderstood and mistakenly thought that Mr. Elhindi was referring to her when he was actually referring to L.

49Mr. Laing suggested that the whole conversation on September 10 could have been adversely affected by the fact that both participants were experiencing significant stress. The applicant had been feeling unwell after the end of the pregnancy and was likely emotionally upset. Mr. Elhindi was experiencing significant back pain and was also concerned about his kidneys and his overall health. Mr. Laing suggested that in these circumstances, miscommunication and misunderstanding could easily result.

50I agree with Mr. Laing that miscommunication and misunderstanding very likely occurred during and as a result of the September 10 conversation. However, I do not accept that this explains the entire situation.

51Mr. Elhindi was clear in his testimony that the applicant was upset about her hours and that she seemed to have some understanding that her hours were going to be reduced. He testified that he did not know what she was talking about because no one had said anything about reducing her hours. He agreed that he did not seek clarification.

52There is no apparent reason why the applicant would suddenly be concerned about her hours unless something had been said to her to give her concern. I note that the applicant’s evidence is that it was Mrs. Elhindi who told her that her hours were going to be reduced. Mrs. Elhindi was not present at the time of the conversation on September 10. If Mrs. Elindi did not tell her husband about her conversation with the applicant about hours, it is possible that Mr. Elhindi did not know what the applicant was talking about when she complained about her hours. However, this does not preclude the possibility that Mrs. Elhindi told the applicant that her hours were going to be reduced or that she was going to be replaced.

53I have noted earlier that the evidence indicates that the respondents did not want to terminate the employment relationship and that it is unlikely that they would decide to precipitously fire the applicant, as she alleges. However, it is certainly possible that they (or one of them acting separately) might begin looking into replacing the applicant or making different arrangements that might affect her hours if they were concerned about the applicant’s ongoing reliability.

54In my view, the preponderance of evidence indicates that it is more probable than not that the applicant was told that her hours could be reduced and that this was probably related to the absences from work that were related to the pregnancy and complications of pregnancy. There was no evidence she was an unreliable employee or failed to attend work on a regular basis prior to her pregnancy. I conclude that it is more probable than not that the respondents treated the applicant differently because of her absences and her absences were the direct consequence of her pregnancy. They did so by indicating that her hours might be reduced and that she might be replaced. This would be reasonable disciplinary response if the applicant had been an unreliable employee except that the purported unreliability was a consequence of the applicant’s pregnancy and therefore, subject to any undue hardship defense, constitutes an infringement of the applicant’s Code protected rights.

Remedy

55Determination of the impact of discriminatory treatment on a person is not a precise science. In Adga Group Consultants Inc. v Lane, 2008 CanLII 39605, the Divisional Court held that tribunals should consider the following factors when awarding general damages: humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, vulnerability, and the seriousness of the offensive treatment.

56In addition to the effects of discrimination on the victim, it is also appropriate to consider the surrounding circumstances and incorporate an objective component to the quantification of monetary compensation: see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

57In this case, I have found that the applicant experienced a violation of her Code-protected rights. I conclude that she is entitled to compensation for the injury to dignity, feelings, and self respect that she experienced that can be attributed to the infringement of her Code-protected rights. In assessing the appropriate compensation, I have considered the following factors:

• While the applicant was told that her hours might be reduced and that she might be replaced, her hours were not reduced and she was not replaced.
• The evidence does not support the suggestion that the applicant was fired. Rather, the applicant quit the employment. While it is possible that the applicant’s hours would have been reduced or that she might have been replaced some time after September 10, it is also possible that this would not have occurred.
• In my view, the apprehension on the part of the applicant that her hours might be reduced or that she might be replaced was not sufficient to poison the work environment to the point that the applicant could reasonably conclude that she could not continue in the employment relationship. Rather, it appears that the applicant quit her employment based largely on misunderstandings that arose during the heated conversation with Mr. Elhindi on September 10.
• The applicant testified that she experienced financial loss after the employment relationship ended. I am sure that this occurred but it does not appear that the financial loss can be attributed to the infringement of the applicant’s human rights. It rather occurred because she quit the employment.
• The injury to dignity feelings and self respect that the applicant experienced was primarily related to her incorrect understanding that her employment had been terminated and only partly related to the infringement of her Code-protected rights.
• At the same time, the applicant was particularly vulnerable at the time the infringement occurred because of the difficulties she experienced after becoming pregnant.

58In considering these factors, I conclude that the applicant is entitled to financial compensation in the amount of $3,500. This represents compensation for the injury to dignity, feelings, and self respect that resulted from the infringement of her Code-protected rights.

ORDER

59The corporate respondent shall pay the applicant $3,500 for injury to dignity, feelings and self respect. Payment shall be made within one month of the date of this decision. If payment is not made by that date, the applicant is entitled to postjudgement

interest pursuant to the Courts of Justice Act , R.S.O. 1990, c. C43, as amended on that amount at an annual rate of 2%.