HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christa Gonneau Applicant
-and-
Sylvia Denninger Respondent
DECISION
Adjudicator: Brian Cook Date: February 24, 2010 Citation: 2010 HRTO 425 Indexed as: Gonneau v. Denninger
APPEARANCES:
Christa Gonneau, Applicant (On her own behalf) Sylvia Denninger, Respondent (On her own behalf)
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 Application was filed on November 6, 2008, and alleges discrimination in employment on the grounds of pregnancy.
2The applicant testified and called her friend and her mother-in-law as witnesses. The respondent testified and called her father and three past or present employees as witnesses.
3Except as indicated, there is a general agreement between the parties about the essential facts of the case.
Background Facts
4The respondent operates a hair salon. There are five chairs in the salon. One is rented to a hair stylist. The others are used by employees. The business was started by the respondent's parents about 30 years ago. The respondent has worked in the business for about 25 years and has been the sole owner for about a year, following her mother's retirement in March 2008.
5The applicant started working as a hair stylist in February 2006. She worked on a regular part-time basis with variable hours. She found out that she was pregnant in early July 2008 and told the respondent about one week later.
6She experienced increasingly severe nausea as a result of her pregnancy. On July 19, 2008, she left a message on the answering machine at the salon, indicating that she would not be in to work that day because she was sick. She indicated that she would call again on July 22, 2008, the next day that she was scheduled to work, but she agreed in testimony that she did not call on July 22. The respondent called her on July 23. The parties agree that at that time the applicant told the respondent that she was sick and would not be able to come to work. This was also the situation on the following day. The respondent told her to stay at home and asked her to supply a doctor's note confirming that she was unable to work. The applicant said she would provide a doctor's note.
7On August 14, 2008, the applicant came to the salon. She was accompanied by her friend. The respondent and all of the witnesses called by the respondent (except her father) were present at the salon when the applicant arrived. The applicant testified that she asked her friend to accompany her because she felt intimidated by the respondent. The friend confirmed this in her testimony.
8The respondent testified that the reason the applicant's friend came to the salon on August 14 was to pick up a piece of hair styling equipment called a flat iron. The friend had purchased the iron from the respondent some time earlier, and it proved to be defective. It was still under warranty, so the respondent ordered a new one. According to the respondent, on August 14, the applicant's friend came with the applicant to pick up the new iron.
9The applicant and her friend testified that this was not the case. The friend thought that she picked up the iron on some other date, but she was not sure when that was. The witnesses called by the respondent who are past or present employees and who were all at the salon on August 14, testified that the applicant's friend picked up the piece of equipment. While little actually turns on this point, the evidence presented by the respondent and supported by the evidence of other witnesses was more convincing, and I accept that the friend picked up the new piece of equipment on August 14.
10During the encounter on August 14, the applicant gave the respondent a note from her doctor. It is dated July 28, 2008, and states that the applicant was off work from July 19, 2008 to July 27, 2008 "for medical reasons".
11The applicant testified that the reason that the note covered only the period up to July 27, 2008 was that this was the date of her previous appointment with her doctor. Her doctor would only give her a note up to the date of the appointment. On this point, I note that the doctor later provided a note for the period July 28, 2008, to September 2, 2008. That note is dated August 25, 2008, indicating that on that occasion, he was prepared to give a note for a period after the medical appointment.
12The parties agree that during the encounter on August 14, 2008, the respondent accepted the July 28, 2008 note, and indicated that a further note would be required for the period after July 28, 2008. The applicant testified that she told the respondent that she would bring this note when she returned to work. The respondent testified that the applicant told her that she would bring another note the next week, after her doctor's appointment. None of the other witnesses had any clear recollection of the details of the discussion about the doctor's note.
13The encounter on August 14, 2008, was relatively brief. The applicant's friend testified that although the applicant had been concerned about intimidation by the respondent, in fact the respondent seemed quite pleasant. The parties agree that during the conversation, the respondent asked the applicant when she would be returning to work and the applicant responded that she did not know as she was still sick.
14The applicant's mother-in-law testified that the applicant told her that she might be mistreated by the respondent. For this reason, she monitored some of the telephone conversations in July 2008, although she did not think that the respondent did in fact mistreat the applicant during those conversations.
15The applicant testified that her condition improved by late August. She was feeling less nauseated and was able to eat normally. She telephoned the salon on September 2, 2008. The respondent was busy and could not come to the phone. The applicant left a message with one of the employees, asking the respondent to call her at home. The applicant testified that the reason for this call was to tell the respondent that she was ready to return to work.
16The respondent testified that she called the applicant's cell phone on September 3, 2008, but there was no service. The applicant disputes this and provided copies of her cell phone records to show that there was continuous service.
17The applicant's sister got married on September 6, 2008. In preparation for this event, the applicant's aunt was having her hair done at the salon on the morning of September 6. The applicant was aware of this appointment, and called the salon. The respondent talked to her but could not have a long conversation as she was in the middle of cutting the aunt's hair. The applicant asked the respondent to give some of her styling equipment to her aunt as she needed it to do her own hair for the wedding. The applicant testified that she did not say anything about returning to work during this conversation. At the same time, the respondent did not ask the applicant about coming back to work.
18The respondent completed a Record of Employment ("ROE") that is dated September 8, 2008, two days after the conversation of September 6, 2008. The applicant's mother-in-law testified that the ROE arrived in the mail on Monday September 8, 2008, and that she noticed that the envelope was postmarked September 5, 2008, suggesting that it must have been completed on September 5, before the conversation on September 6. She did not keep the envelope. Since the applicant agrees that she did not say anything about returning to work on September 6, I find that nothing turns on whether the ROE was completed on September 5 or September 8.
19The respondent testified that the reason for issuing the ROE was so that the applicant would be able to get employment insurance benefits. She was aware that an employee cannot get employment insurance benefits without an ROE. She testified that she also called either the Employment Insurance Commission or Revenue Canada to get further clarification. This was in relation to both the applicant and another employee, who had gone off sick in August, 2008. She was advised to issue an ROE.
20The respondent's father testified that he does the books for the business, as has done for the last 30 years. He is not otherwise involved in the business unless his daughter asks for advice. The respondent talked to him about the applicant's situation, and he testified that he recommended that she issue an ROE. His anticipation was that when the applicant received it she would realize that she either had to return to work or provide clarification about when she was going to return to work. The respondent's father testified that he did not call the Employment Insurance Commission or Revenue Canada before completing the ROE and was not aware of his daughter calling those agencies.
21Box 16 of the ROE asks for the reason for issuing the ROE. In this box, the code "K" was entered, which is the code for "other" (e.g. not illness, resignation, laid off, dismissed, etc.). Box 14 asks for the Expected Date of Recall. A date may be entered, or one of two boxes may be checked. The first box is for "unknown", meaning that the employer does not know when the employee will be returning to work. The second box is for "not returning". The second box was marked, indicating that the employee would not be returning to work.
22The respondent and her father submit that this box was marked in error and that the "unknown" box should have been marked. They understand that as a result of this error the applicant might have understood that she was not welcome back, but note that the applicant did not call to seek clarification. The ROE that was issued for the other employee who was off sick was marked "unknown".
23The next thing that happened after the ROE was issued was that the applicant filed the Application with the Tribunal on November 6, 2008.
24The respondent filed a Response which indicated, among other things, that the applicant's position at the salon was still available if she wanted to return to work.
25The applicant testified that by the time that she received the Response, she felt she could not return to work for the respondent after "everything that happened".
26The applicant testified that she interpreted the ROE to mean that she had been fired. She did not apply for employment insurance benefits because she did not want to jeopardize her maternity leave benefits. She tried to look for alternative work, but was not successful other than occasional work in a day care. She did apply for and receive maternity leave employment insurance benefits starting March 1, 2009, when she gave birth. She is still on maternity leave at present.
27The applicant testified that she experienced significant stress and financial difficulties as a result of the events in this case. She and her husband had been planning to buy a home and had been pre-approved for a $250,000 mortgage on the basis that they were both employed. When she was no longer employed, they could only get a mortgage for $150,000. They then had to get a personal loan at a higher interest rate.
28In the Application, the applicant sought financial damages based on her estimation of the income that she would have earned from September 9, 2008, to the date she was expected to give birth, which she calculated to be approximately $7,000.
29At the hearing, she explained that she seeking additional financial damages based on the mortgage situation and other factors, and also seeking $5,000 for injury to dignity, feelings and self-respect.
Analysis and Decision
30The issue in this case is whether the respondent discriminated against the applicant contrary to sections 5(1) and 10(2) of the Code:
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.
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.
31Pregnancy includes complications of pregnancy: see McDonald v. Mid-Huron Roofing, 2009 HRTO 1306.
32The respondent was aware from the time the applicant went off work in July 2008 that the applicant was pregnant and experiencing complications of pregnancy which meant that she could not come to work. The applicant had indicated that she intended to return to work when she was feeling better. The respondent and the co-workers who testified indicated that they all understood that the applicant intended to return to work. However, it is also clear that the applicant did not keep the respondent advised as to when she anticipated that she would return to work and did not provide the requested medical information.
33After the first few days in July when the applicant first went off work, the only time that the parties discussed the applicant's status and intentions regarding a return to work was on August 14, when the applicant came to the salon. At that time, the applicant told the respondent that she was still too ill to come to work. The respondent testified that her understanding at that time was that the applicant was intending to return to work when she was medically able to do so. The respondent did not hear anything to the contrary between August 14 and September 8, the date of the ROE.
34The applicant agrees that the respondent required a medical note to confirm that she needed to be off work. She understood that the request for a medical note was reasonable. Only one note was provided. It was provided on August 14 and dealt only with the period from July 19 to July 27. The applicant understood that a further note was required and she undertook to provide one.
35I accept that subsequent to July 28, 2008, the date of the note that was provided, the applicant's next appointment with her doctor was not until August 25, 2008. The applicant obtained a note at the time of that appointment and it states that the applicant would be off work for the period from July 28 to September 2, 2008. It seems very likely that if this note had been provided to the respondent when the applicant obtained it from her doctor, there would have been a different outcome. The respondent would then have known that the applicant anticipated a return to work on September 2, 2008. Even if, as she testified, the applicant felt that she was only to provide the doctor's note when she returned to work, I do not understand why the applicant did not contact the respondent on August 25, 2008, or shortly thereafter to tell the respondent that she hoped to return to work by September 2.
36When the applicant did call on September 2, she only left a message for the respondent to call her. The respondent could not be expected to know why the applicant was calling. Whether or not the respondent tried to return the call, I do not understand why the applicant did not call again when she did not hear from the respondent.
37The conversation on September 6, the date of the wedding, would have been an obvious time for the applicant to tell the respondent that she wanted to return to work. It also would have been an obvious time for the respondent to ask the applicant about a return to work. However, there was no discussion about this as the conversation was exclusively about the applicant's request that the respondent give equipment to the applicant's aunt. Unfortunately, because the respondent was in the middle of cutting the aunt's hair, there was not time for a more extended conversation that might have included discussion about a return to work.
38While the applicant had not clarified her intentions, the reasons for issuing the Record of Employment on September 8 are not clear.
39The respondent testified that the ROE was issued so that the applicant could apply for employment insurance benefits. However, the applicant had not asked for an ROE and had not indicated any intention to apply for employment insurance benefits. By the time the ROE was issued, the applicant had been off work for about six weeks, and it is not clear why the respondent would decide at that point that the applicant might want to apply for employment insurance benefits. I do note that there was another employee who was off sick at around the same time and who apparently did want an ROE in order to get employment insurance benefits.
40According to the respondent's father, the reason for issuing the ROE was to force the applicant to indicate whether she was returning to work. This explanation is not consistent with the explanation offered by the respondent. It also does not explain why the respondent did not simply contact the applicant to clarify her intentions.
41The respondent and her father testified that the box on the ROE that indicated that the applicant was not returning was marked in error. The reasons for this error are not clear. At about the same time, an ROE was prepared for another employee who was off sick and that ROE indicated that the date of return was "unknown". If the "not returning" box was marked in error, it was an error that was not corrected until the Response to the Application was filed, when the respondent indicated that the applicant could still return to work.
42Because the ROE indicated that the applicant would not be returning to employment, it is understandable that the applicant concluded that her employment had been terminated. At the same time, the applicant did not contact the respondent to clarify her status. The applicant should have appreciated that the respondent did not have any clear indication about the applicant's status or her intentions from the time of the applicant's visit to the salon on August 14.
43In July the applicant was unable to work due to complications associated with her pregnancy and she needed accommodation. The accommodation that she required at that time was an absence from work.
44The duty to accommodate has two components. The first is the duty to provide the accommodation that is required unless to do so would cause undue hardship. The second is to ensure that the accommodation process is appropriate: see Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362. At the same time, the accommodation process requires the parties to work together. This includes maintaining communication.
45The respondent accommodated the applicant when the applicant was unable to work due to complications of pregnancy, by allowing the applicant to remain off work as necessary. The respondent asked for information to confirm the need for continuing accommodation. The applicant only partially fulfilled her obligation to provide this information. She provided information for a period in July only. By August, when the ROE was issued, she had not provided any further information about her continuing need for accommodation and when she expected to be able to return to work.
46An employer is not required to continue to accommodate indefinitely in the absence of information to establish that the accommodation is required: see Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561.
47While the applicant failed to keep the respondent informed about her continuing need for accommodation, the respondent also failed to seek clarification before issuing the ROE.
48Since the ROE indicated that the applicant would not be returning to employment, the ROE effectively indicated that the employment relationship had ended. While this may have been an error, it was an error that was not corrected. There was, moreover, no logical reason to issue an ROE at that time, at least without first communicating with the applicant to clarify if there was a continuing need for accommodation and if the applicant intended to return to work.
49I find that the respondent did discriminate against the applicant by issuing an ROE that stated that the applicant would not be returning to employment without first seeking clarification from the applicant. I accept that the ROE might have been issued in error. However, the fact is that it was issued and, when she received it, the applicant could only reasonably infer that her employment had been terminated by the respondent. Moreover, it seems clear that the termination was directly related to the fact that the applicant was off work due to complications of pregnancy, which is a Code-protected ground.
50However, I also find that the applicant contributed to the situation by failing to keep the respondent advised of her status and her intentions regarding a return to work. I conclude that while the respondent failed to fulfill the duty to accommodate, the applicant also failed to fulfill her part of the accommodation process.
Remedy
51Section 45.2(1) of the Code provides:
45.2(1) 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 ought to do to promote compliance with this Act.
52The applicant seeks monetary compensation. In the Application, she claimed $7,087, representing a calculation of lost income that resulted from the termination of her employment. At the hearing, she clarified that the lost income was approximately $5,000. In addition, the fact that she was not employed led to higher mortgage costs with respect to a house purchase that occurred after the termination of her employment. She also claimed $6,000 in "general damages" for the injury to her dignity, feelings and self-respect.
53I accept that the applicant experienced financial difficulties as a result of the end of her employment but I find that the applicant is not entitled to compensation for these financial consequences because the financial consequences would not likely have resulted but for the failure of the applicant to keep the respondent better informed.
54At the same time, there is no doubt that the fact that the respondent terminated the employment was directly related to a Code-protected right. The applicant was off work because she required accommodation due to pregnancy.
55While the applicant should have kept the respondent advised, the respondent also had a duty to clarify the applicant's intentions before terminating the employment relationship.
56I find that the applicant is entitled to monetary compensation for the injury to dignity, feelings and self-respect that resulted from the receipt of the ROE.
57In considering the amount of compensation, I note that any injury to dignity, feelings and self respect would likely have been minimized if the applicant had kept the respondent advised. At the same time, it was the respondent who had ultimate control of the relationship and who exercised that control by issuing the ROE. I find that the applicant is entitled to compensation in the amount of $2,000 for injury to dignity, feelings and self respect that can be attributed to the respondent. The respondent must make this payment no later than 60 days from the date of this Decision. If the respondent fails to make payment within 60 days of the date of this decision, the respondent shall pay post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
ORDER
58The respondent shall pay $2,000 to the applicant as compensation for injury to the applicant's dignity, feelings and self respect.
59If the respondent fails to make payment within 60 days of the date of this decision, the respondent shall pay post-judgment interest in accordance with the Courts of Justice Act.
Dated at Toronto, this 24th day of February, 2010.
"Signed by"
Brian Cook Vice-chair