HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Melissa Da Silva
Applicant
-and-
Silverbirch Hotel and Resorts Limited Partnership
Respondent
Case resolution conference decision
Adjudicator: Ailsa Jane Wiggins
Indexed as: Da Silva v. Silverbirch Hotel and Resorts
AppearanceS BY
Melissa Da Silva, Applicant ) On her own behalf
Silverbirch Hotel and Resorts )
Limited Partnership, Respondent ) Kathryn Meehan, Counsel )
Introduction
1This decision deals with an Application filed on September 12, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on September 14, 2007, and abandoned upon filing this Application with the Tribunal.
2The applicant alleges that in the course of her employment her requests for accommodation to attend to family obligations were ignored and that her employment was terminated because of her family status. The respondent states that the applicant’s employment was terminated for performance issues only and that she never sought accommodation for her family status.
3A two-day Case Resolution Conference (“hearing”) was held on October 1 and 2, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner.
4When she filed her Application, the applicant was represented by Mr. Cecil Norman. On September 15, 2009, Mr. Norman advised the respondent’s counsel that he was no longer representing the applicant. The applicant was self-represented at the hearing.
5At the hearing I heard testimony from the applicant; Corinne Oatman-Howell; and, via teleconference, David Da Rosa, former Director of Operations at the respondent’s hotel and the applicant’s supervisor; Lia Julier, manager of human resources at the relevant time; and two members of the respondent’s hotel staff, Judy Rampersad and Velma Francis.
6On consent of the parties, I took an active role in questioning the applicant, Mr. Da Rosa, and the respondent’s witnesses.
Preliminary Matters
7At the outset of the hearing counsel for the respondents requested that Ms. Oatman-Howell be removed as a personal respondent on the basis of the five factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 (CanLll). The applicant, who had initially named Ms. Julier in her Complaint and then agreed to remove her as a personal respondent, agreed to remove Ms. Oatman-Howell as a personal respondent. Accordingly, Ms. Oatman-Howell is no longer named in the style of cause.
8The applicant’s original Complaint, which Mr. Norman assisted her in drafting, listed race and colour as well as family status. However, the first page of the Complaint notes that the “complainant’s representative consented to the following changes to the complaint: … Remove race and colour as prohibited grounds.” Despite the removal of race and colour as prohibited grounds with Mr. Norman’s express consent, the Statement of Particulars and Facts, Issues and Remedies prepared and signed by Mr. Norman on March 30, 2009, and filed with the Tribunal, contains references to discrimination on the basis of race and colour.
9The applicant testified that the Application was about discrimination on family status only and the hearing proceeded on that basis. In addition, the applicant testified that certain allegations in the Statement of Particulars and Facts were incorrect. The applicant said that she had never seen the Statement of Particulars and Facts filed by Mr. Norman.
10The Tribunal is concerned that Mr. Norman’s drafting of the Statement of Particulars and Facts resulted in unnecessary confusion and delay at the hearing. It is the expectation of the Tribunal that representatives have reviewed pleadings with their clients prior to submitting them to the Tribunal.
The Facts
11On May 23, 2006, the applicant commenced employment with the respondent as a guest services supervisor at its Sandalwood Suites Hotel in Mississauga, Ontario.
12The applicant has a husband and, at the relevant time, two young children. She has since had a third child.
The Applicant’s Working Conditions
13The applicant testified that her long hours, varying shifts and having to take phone calls from work in the middle of the night resulted in problems with her husband and family. She claimed that at the end of July 2006 she was working a night shift seven days a week, 14 to 18 hours per day. She says that she told those with hotel management responsibilities at the time that it was too much for her and that she was thinking of going to work for another hotel; she was told that they would like her to stay and that they would be hiring more staff. The applicant testified that she never asked for reduced hours; what she claimed she wanted was scheduling changes, a fixed shift and more staff.
14The respondent agrees that the applicant told management she was considering going to another hotel but denies that she made any statement regarding the impact of her schedule on her family.
15The applicant also said that she complained to her supervisor, David Da Rosa, and Ms. Oatman-Howell and was given assurances that additional staff was being hired and that things would improve. She agreed she was aware that the hotel had a harassment policy, that she could have brought a formal complaint and that she did not do so. Her explanation was that she had verbally complained to Ms. Oatman-Howell and, on many occasions, to Mr. Da Rosa, seeking accommodation because of her family responsibilities. She admits that she never used the word “accommodation”.
16The respondent acknowledges that the applicant did work some night shifts from August 16, 2006 until October 2006, when a new employee was hired, but states that this, and variable shifts, was part of her job and that her claim regarding the hours she worked was grossly exaggerated.
17Documentary evidence filed by the respondent such as sign-in sheets and payroll reports do not support the applicant’s claim that she worked long hours. They show that she worked different shifts and that she had two, three and four days off in a row and that she worked on average less than 39 hours per week. Both Ms. Julier and Ms. Oatman-Howell testified that the applicant never requested accommodation because of her family status. Ms. Oatman-Howell testified that the applicant never discussed the impact her work was having on her family. At most the applicant asked for a set shift and more staff.
18The applicant suggested that the sign-in sheets did not record all her hours, that she worked past the end of her shift after she had signed out to finish her work and that Mr. Da Rosa knew about it.
19Mr. Da Rosa’s testimony did not support the applicant’s claim that she worked hours which were unrecorded and for which she was not paid. He said that she sometimes stayed behind for anywhere between an hour and four hours, once a week or once every two weeks. He also said that he was not aware that she was working hours for which she was not getting paid. He indicated that once an employee was punched in he or she should stay punched in until his or her work was completed. His oral testimony was somewhat inconsistent with his written statement which indicated that the applicant worked long hours, filling in for other staff, because if all her hours were recorded, she was not working long hours.
20Mr. Da Rosa stated that although he knew about the applicant’s concerns regarding the impact of her shift schedule on her family life, he never told Ms. Julier, the human resources manager, or anyone else in management about it. He and the applicant both testified that they worked on the schedule together and they would try to accommodate her family obligations. He indicated that he was aware the the applicant had made several complaints about the work schedule while she was employed at the hotel.
21Two witnesses testified that the applicant and Mr. Da Rosa had a close personal relationship. These witnesses testified in a forthright manner and, although they are still employed by the hotel, I have no reason to believe that they had ulterior motives for their testimony or that they felt obliged by their employment relationship to manufacture evidence favourable to the hotel.
22On the other hand, Mr. Da Rosa had been dismissed without cause by Ms Oatman-Howell on May 30, 2008, and for that reason alone may not have been particularly friendly towards the hotel. Even so, his testimony was not fully supportive of the applicant’s case.
The Applicant’s Job Performance
23The applicant denied that she had received any negative feedback or warnings about her performance. She agreed she had been called to a meeting with Ms. Oatman-Howell and Mr. Da Rosa regarding tensions between the applicant and another staff member.
24On August 3, 2007, approximately six weeks before the applicant was dismissed, she was called to a meeting, characterized by all parties as a coaching session, with Mr. Da Rosa, Ms. Oatman-Howell and Ms. Julier. A number of performance issues were discussed. It is not necessary for me to detail those discussions except to say that the applicant took issue with certain matters raised. A confirming letter from Mr. Da Rosa was sent to the applicant the same day which warned that if the hotel’s expectations were not met, the applicant would be subject to disciplinary action up to and including termination of employment.
25On September 11, 2007, nine days before her dismissal, Mr. Da Rosa and Ms. Oatman-Howell met with the applicant and the other staff member to discuss the conflict between them and to counsel them on the negative impact that their inability to work together was having on the hotel.
26The applicant testified that at that meeting she again expressed the stress she was under as a result of trying to balance work and her family responsibilities. Ms. Oatman-Howell agreed that the applicant raised the issue of getting calls at home. This had not been brought to her attention before and she suggested to the applicant that she needed to ensure that her staff was properly trained so that they could deal with issues that arose when the applicant was not present. The other staff member offered to take the calls.
27The applicant’s employment was terminated on September 20, 2007. At the termination meeting she was told that the hotel was moving in a new direction and that she did not fit into the corporate culture. They did not expand on the reasons for her termination and she did not ask.
Analysis and Decision
28For the reasons that follow, I find that based on the evidence before me the applicant was not subjected to discrimination nor dismissed because of her family status.
29The documentary evidence did not support the applicant’s claim of long hours and frequent night shifts. In fact, the applicant worked on average less than 39 hours per week. She did occasionally work different shifts and night shifts, but she also had two, three and four days off in a row. She and Mr. Da Rosa drew up the shift schedule together. This was not a case of an employer unilaterally changing an employee’s working hours, or a case where the work schedule was such that it might have been apparent to an employer that an employee with family obligations might have a problem with it. The respondents had no reason to believe that the applicant’s work schedule was an issue.
30I find that on a balance of probabilities the respondent genuinely had no knowledge that the applicant was seeking accommodation to meet her family obligations. Any comments that the applicant may have made to hotel management about her work schedule were not clear requests for accommodation, and as mentioned above, given the fact that she was working on average less than 39 hours per week, and setting her schedule with her supervisor, the respondent had no reason to believe that she might require accommodation.
31While it was not necessary for the applicant to use the word “accommodation”, I find that she did not fulfil her responsibilities in the accommodation process. Employers and employees have a shared responsibility for making the accommodation process a success. The applicant should have made her needs clearly known to the hotel, and preferably in writing, in order that the person responsible for accommodation could consider her request and any possible accommodations that might have been appropriate. As it was, only her complaint about phone calls at home was communicated to and understood by the respondent to be related to her family situation. When she raised the issue of phone calls at home, solutions were offered. Given her hours and that fact that she worked only a few night shifts, I find that it was reasonable for the respondent not to interpret her comments about wanting more staff as a request for accommodation because of her family status.
32The applicant sincerely believes that her dismissal was the result of her having asked for a fixed shift and more staff in order to accommodate her family responsibilities. However, the evidence persuasively supports the respondent’s position that the applicant did not work long hours, much overtime or many night shifts; when there were staff shortages hotel management hired additional staff; the applicant did not ask hotel management for accommodation to fulfill her family responsibilities; and that the reason for her dismissal was her performance.
33I find that the respondent’s explanation that it terminated the applicant’s employment because of her performance more probable than any inference that it terminated her because of her family status. It does not matter if the applicant’s alleged performance deficits did not amount to just cause for dismissal; rather the question from a human rights perspective is, regardless of how reasonable the employer’s explanation for the termination may be, whether it was untainted by any consideration of any of the prohibited grounds in the Code. I find that the respondent’s decision to dismiss the applicant was not influenced to any degree by consideration of her family status.
34In all the circumstances, after considering all the evidence I am not satisfied that the employer failed in any obligation that it might have had to accommodate the applicant’s family status or that it dismissed the applicant because of her family status.
ORDER
35For all of these reasons the Application is dismissed.
Dated at Toronto, this 9th day of February, 2010.
“Signed by”
Ailsa Jane Wiggins
Member