Osvald v. Videocomm Technologies Inc. (No. 1)

HR-1536-08

2010-04-08

2010 HRTO 770

Ontario Human Rights Tribunal

CHRR Doc. 10-0918

Sylvia Osvald Applicant

and

Ontario Human Rights Commission Commission

v.

Videocomm Technologies Inc. Respondent

Date of Decision: April 8, 2010

Before: Human Rights Tribunal of Ontario, Leslie Reaume

File No.: HR-1536-08

Appearances by:

Christine Elwell, Counsel for the Commission

Sylvia Osvald, on her own behalf

Kim Ferjo, Representative for the Respondents

PREGNANCY — employment terminated — DISCRIMINATION — absenteeism — job performance — EMPLOYMENT — probationary employee — DAMAGES — injury to dignity and self-respect — employment counseling — wages — REMEDIES — human rights program and training

Summary: The Human Rights Tribunal of Ontario ruled that Videocomm Technologies Inc. discriminated against Sylvia Osvald because of pregnancy.

Ms. Osvald began working as a receptionist for Videocomm on November 13, 2006. She was young and inexperienced, but was considered a good prospect for the position. Ms. Osvald informed Videocomm at the time of her interview that she had been trying to get pregnant, and within days of starting work she informed her employer that she was pregnant. Ms. Osvald required time off work for doctor's appointments relating to her pregnancy, but she made up the time by working over lunch hours.

On January 19, 2007, Ms. Osvald came to work and immediately had a miscarriage in the office bathroom. She went home. She returned to work the following Monday, but was experiencing pain and went to the hospital. An ultra-sound revealed an infection for which surgery was required. Ms. Osvald was absent a total of three and a half days because of the miscarriage and complications from it.

When she returned to work on January 25, 2007, she was fired. The reasons given were excessive absenteeism and performance problems.

The Tribunal found that Ms. Osvald's employers did not document a pattern of absenteeism, except for the doctor's appointments and time off required because of her miscarriage. It also found that, while there were some performance problems, they would not ordinarily have led to termination. The employer had a progressive discipline policy in place, which was not followed. The Tribunal concluded that Ms. Osvald's pregnancy and its complications were factors in her termination.

The Tribunal awarded Ms. Osvald compensation for two months' lost wages, $2,500 for outplacement training, and $10,000 as compensation for injury to dignity.

CASES CITED

ADGA Group Consultants Inc. v. Lane (2007), 61 C.H.R.R. D/307, 2007 HRTO 34: 66, 77

ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425, 64 C.H.R.R. D/132, 2008 CanLII 39605 (Ont. Div.Ct.): 73

Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.): 66

Christian Horizons v. Ontario (Human Rights Comm.) (2008), 63 C.H.R.R. D/12, 2008 HRTO 22: 58

Hughes v. 1308581 Ontario Inc. (2009), 67 C.H.R.R. D/81, 2009 HRTO 341: 72

Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37, [2002] O.H.R.B.I.D. No. 14 (QL): 72

Sanford v. Koop (No. 2) (2005), 55 C.H.R.R. D/102, 2005 HRTO 53: 72

Smith v. Mardana (No. 1) (2005), 52 C.H.R.R. D/89, 2005 CanLII 2811 (Ont. Div.Ct.): 66

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 127: 80

Human Rights Code, R.S.O. 1990, c. H.19

s. 45.2: 72

s. 45.2(1): 57

INTRODUCTION

1Sylvia Osvald (the "complainant") filed a complaint with the Ontario Human Rights Commission (the "Commission") alleging discrimination in employment on the basis of sex (pregnancy) against Videocomm Technologies Inc. (the "respondent"). The complaint was referred by the Commission to the Tribunal under Part IV of the previous Code [R.S.O. 1990, c. H.19]. The respondent denied that the complainant's termination was in any way connected with her pregnancy and alleged that the termination was based on performance issues arising during the complainant's probationary period.

2The complainant originally named her direct supervisor, Penny Davidson, as an individual respondent. The complaint against Ms. Davidson was withdrawn by the complainant and the Commission during the course of the hearing. As a result, references to the "respondent" throughout this decision include only the complainant's former employer, Videocomm Technologies Inc., and the style of cause reflects the withdrawal.

3For the reasons that follow, I find that the respondent terminated the complainant in part because of factors related to her pregnancy. The respondent asserted that the complainant was terminated during her three-month probationary period for performance-related issues. However, when the reasons for the termination were examined during the course of the hearing, the evidence established that factors related to the complainant's pregnancy and subsequent miscarriage played a part in the decision to terminate her employment.

EVIDENCE

4Much of the evidence in this case was not disputed by the parties. The primary evidence at the hearing was given by the complainant for herself and the Commission and Kim Ferjo and Penny Davidson for the respondent. Both Ms. Ferjo and Ms. Davidson are employed by the respondent. Ms. Ferjo is the company controller and acted as the representative for the respondent throughout the hearing. Ms. Davidson is the warehouse manager and was the complainant's direct supervisor during her employment. The Tribunal also heard evidence from three additional employees who worked directly with the complainant.

5The complainant started work for the respondent as a receptionist on November 13, 2006. She had no previous experience as a receptionist; however, she presented well in her interview and the respondent determined that she would be a good fit for that position. The complainant's previous work experience had been in retail. She revealed during the interview that she had been trying to become pregnant. The complainant had two offers to work as a receptionist, one with the respondent and one with a chiropractor. The complainant accepted the position with the respondent because the company presented more opportunities for advancement.

6By all accounts, the prospects for advancement within the company were promising. Both Ms. Ferjo and Ms. Davidson testified that a number of women had commenced employment with the respondent as receptionists and were promoted into other positions. Ms. Davidson herself, who is now the warehouse manager, started her career with the respondent as the receptionist.

7The complainant signed an employment contract which referred to various company policies. The policies most relevant to this decision relate to discipline and absence due to illness. The company maintains a policy of disciplinary action which promotes progressive discipline including verbal and written warnings as well as suspensions, all of which may culminate in termination. The policy also permits the employer to take immediate action to terminate the employment contract depending on the seriousness of the employee's conduct.

8The attendance policy requires employees to provide the employer with a doctor's note after three consecutive days of absence. The respondent provides five paid days in a 12-month rolling calendar year due to illness. Employees are not permitted to "bank" sick leave credits.

9The complainant also provided the Tribunal with a copy of her job description as a receptionist which set out a list of responsibilities, each of which she was learning and being trained on as she worked through her probationary period.

10A few weeks after commencing her employment (in approximately mid-December 2006), the complainant advised her employer that she was pregnant.

11The complainant required time off to attend doctor's appointments related to her pregnancy. Each of those appointments was approved by Ms. Davidson and the complainant made up the time by working through her lunch hours. Ms. Davidson confirmed that the missed hours had indeed been made up over the complainant's lunch hours. The complainant gave evidence that she asked Ms. Davidson a number of times if a doctor's note was required to substantiate her absence from work and was told by Ms. Davidson that a note was not required.

12On Friday, January 19, 2007, the complainant arrived at work and almost immediately found herself in the bathroom suffering a miscarriage. By all accounts, it was a terrible ordeal and the complainant was very upset by the experience. The complainant was almost 20 weeks pregnant by this time and was alone in the bathroom when the miscarriage occurred. She was frightened and confused by what was happening and reported her ordeal to her supervisor Penny Davidson. Ms. Davidson was supportive and kind and offered to take the complainant to the hospital. The complainant preferred to have her partner pick her up, which was immediately arranged, and the complainant was taken to the hospital. The complainant was told by Ms. Davidson to rest up over the weekend and that she would see the complainant next week.

13The complainant returned to work the following Monday and worked the entire day despite the fact that she continued to experience pain. After work that day, the complainant went to the hospital for an ultrasound. By the time she was seen at the hospital, the ultrasound department was closed and the complainant was required to return the next morning. The complainant telephoned and spoke directly with Ms. Davidson to keep her supervisor apprised of her status.

14The next morning, Tuesday, January, 23, 2007, the ultrasound revealed that the complainant was suffering from an infection and would require surgery that day. The complainant called the office asking to speak to Ms. Davidson. She was advised by a coworker named Denise Burke that Ms. Davidson was not able to come to the phone. The complainant was on her cell phone and being summoned by hospital staff to start preparing for surgery. The complainant advised Ms. Burke of the circumstances and Ms. Davidson confirmed in her testimony that she subsequently received that message.

15After many delays, the surgery took place at approximately 3:00 a.m. Wednesday morning and within a couple of hours, the complainant was returned home by her partner. She slept through the day on Wednesday, January 24, 2007, recovering from the ordeal. Neither the complainant nor her partner called the employer to advise that she would be off on Wednesday, January 24, 2007; however, Ms. Osvald testified that she was told by Ms. Davidson to expect to take the day off if she required surgery.

16Ms. Davidson and Ms. Ferjo both referred to this in their testimony as an "unreported absence" and the respondent maintained that it was a factor in the termination of the complainant's employment. However, when Ms. Davidson was cross-examined by Commission counsel, she admitted that the complainant's failure to report in those circumstances would not be grounds for termination.

17The complainant returned to work the next morning Thursday, January 25, 2007. As soon as she arrived at work, she was taken into the boardroom by Ms. Davidson. The complainant was told by Ms. Davidson, "your services are no longer required". Ms. Davidson was the only person who spoke at the termination meeting. The complainant was directed out the back door of the offices and she called her partner to come and pick her up.

18The evidence that is in dispute is largely related to the question why the complainant was terminated.

19Ms. Ferjo testified that she knew from the interview process that the complainant was interested in having a child and this was not an issue for her as evidenced by the fact that the complainant was hired in any event. She also testified that the complainant was not the first woman in the organization to become pregnant nor was she the only employee who had ever suffered a miscarriage. Ms. Ferjo strongly advocated on behalf of the respondent that women employees who become pregnant are fully supported.

20Ms. Ferjo testified that she and the company president made the decision to terminate the complainant because of performance-related issues. The company president did not testify for the respondents. Ms. Ferjo testified that there were two primary performance-related issues which led to the termination. The first was "excessive absenteeism". The second was broadly described as the complainant's inability to leave her personal problems at home. For example, Ms. Ferjo testified that the complainant was often teary and upset by phone calls to or from family members which affected her ability to concentrate and learn the tasks required of a receptionist. Ms. Ferjo testified that other staff members were complaining that they would have to relieve the complainant at the reception desk when she was upset.

21Apart from these primary concerns, Ms. Ferjo also testified that she had spoken personally to the complainant about wearing jeans to work on days other than casual Fridays and that she was concerned that the complainant was "surfing" the internet during business hours. The complainant denies that these conversations ever took place.

22With respect to the complainant's alleged emotional state, Ms. Ferjo was able to testify in detail about only one specific event. She testified that a "welcome" lunch was held for the complainant early in her employment. During the lunch, Ms. Ferjo witnessed the complainant receive a phone call and leave the table. When the complainant came back, it appeared to Ms. Ferjo that she had been crying. Although the complainant denied this description of what occurred at the lunch, Ms. Ferjo's version was confirmed by two other witnesses who testified at the hearing and attended the lunch, Ms. Davidson and another employee named Ms. Scarfo.

23Apart from this specific incident, however, Ms. Ferjo testified in relatively vague terms about her impressions of the complainant's emotional state. She testified that she passed the reception desk several times and noticed that the complainant appeared to have been crying or did not look happy. Ms. Ferjo testified that she would often ask the complainant what was bothering her.

24Ms. Ferjo also testified that employees were complaining to her about the complainant, suggesting that she was spending too much time on the internet and that she seemed distracted and unable to concentrate on her training. Three employees were called by the respondent to give evidence about their interactions with the complainant. Some of their testimony, which is set out in detail below, does tend to support Ms. Ferjo's observations. Ms. Ferjo did not make any notes of her concerns about the complainant or the concerns raised by other staff members.

25Ms. Ferjo also alleged that the complainant was chronically absent and that she frequently called in late because she had slept in or her car had broken down. Again, Ms. Ferjo's testimony on this issue was vague and impressionistic and she was unable to produce documents to support her allegations. She testified that the complainant had exceeded the company's policy of five sick days within the first few weeks of her employment and estimated that the complainant was absent approximately nine times over the course of her employment. Ms. Ferjo testified that she met with the complainant and warned her that her absences could lead to termination. Again, the complainant denied that this conversation ever took place.

26Ms. Davidson also testified on the issue of the complainant's absences and gave contradictory evidence about the number of days missed by the complainant. She testified that she had written down the complainant's absences on a calendar but she did not produce the calendar to support her testimony. She was given an opportunity during the hearing to produce the calendar but she failed to do so. And yet, without the benefit of the calendar, Ms. Davidson testified to a number of specific dates on which the complainant was late or absent. That evidence was challenged on cross-examination by the Commission and Ms. Davidson admitted that on at least one of those dates the complainant was in fact not absent, as evidenced by an email sent that day from the complainant to Ms. Davidson. Overall, I found that I could not rely on Ms. Davidson's evidence about the number of days the complainant was late or absent.

27The complainant's testimony as well as that of Ms. Davidson confirmed that all of her pregnancy-related appointments were approved and she made up the time on her lunch hour. In addition, the complainant testified that she was absent approximately three and a half days because of illness, all of which was made up except for one and a half days. The complainant also testified that she had been approved to take a day off to support a friend in court. Ms. Davidson also recalled that the complainant made up all but a day and a half of her absences. She testified that the respondent paid the complainant for the remaining one and a half days because she was obviously ill and unable to take antibiotics because of her pregnancy. All parties agreed that the complainant was absent for the period of her miscarriage described above.

28On the whole, I found the evidence of both Ms. Ferjo and Ms. Davidson with respect to the complainant's absences vague and unreliable and with respect to Ms. Ferjo, devoid of any recognition that the absences had been approved and that almost all of the time had been made up when the complainant worked through her lunch hours. I do accept that Ms. Ferjo's perception was that the complainant was frequently absent. In my view that perception was exacerbated by the series of absences associated with the complainant's miscarriage and is directly connected with the termination which followed the complainant's return to work.

29With respect to the decision to terminate the complainant's employment, Ms. Ferjo testified that she made that decision in consultation with the company president. Ms. Ferjo testified that she wanted to terminate the complainant's employment before Christmas but that she was prevented from doing so by the company president who allegedly wished to give the complainant more time and disapproved of terminating employees at Christmas time. As I indicated previously, the company president did not give evidence on behalf of the respondent.

30The complainant's employment was ultimately terminated on January 25, 2010, on her first day back from work following her miscarriage and surgery. The testimony related to this event was again, vague and contradictory. Ms. Ferjo was unable to explain why she decided to carry out the termination on the morning that the complainant returned to work. On cross-examination, Ms. Ferjo testified that she originally planned to carry out the termination in accordance with the pay cycle which occurs on the 15th or the 31st of each month. She testified that she had originally told Ms. Davidson that she wanted December 15, 2006, to be the complainant's last day of work but was prevented from carrying out the termination by the company president. When asked by Commission counsel why she didn't carry out the termination at the end of December or at the latest January 15, 2007, in accordance with the pay cycle, Ms. Ferjo answered, "I don't know, you're right, I should have done that".

31Ms. Davidson also testified about the termination. She learned that the termination would take place on the morning of January 25, 2007, and was asked by Ms. Ferjo to be the one to carry it out. At first Ms. Davidson testified that she agreed with the decision to terminate and then, when she returned from a break in the hearing, she asked to retract that statement and testified instead that she had not agreed with the decision to terminate. It was my assessment of Ms. Davidson, having observed her throughout her testimony that she was not intentionally attempting to mislead the Tribunal. Ms. Davidson was extremely emotional and upset during much of the proceeding. In my view, she was having a difficult time bearing up under the pressure that was either being placed on her by the employer or which she perceived was being placed on her. However, the change in her testimony, the failure to produce documents which go to the core issue of the complainant's absences, combined to make it difficult to attach any weight to her testimony.

32The complainant also testified that Ms. Davidson said to her at the termination meeting "you were a great worker when you were here" which I accept as evidence connecting her absences, which were largely pregnancy-related, to the termination.

33In her opening statement, Ms. Ferjo candidly admitted that her timing was "deplorable", coinciding as it did, with the complainant's miscarriage. However, she was determined to terminate the complainant within her probationary period. The evidence established that the complainant commenced her employment on November 13, 2006. Had the respondent waited until the end of January to terminate the complainant in accordance with the pay cycle, which would have allowed her a short period of time to recover from the ordeal of her miscarriage, the termination would still have fallen within the complainant's probationary period. There is no reasonable explanation for carrying out the termination on the day of her return from the miscarriage and subsequent surgery. In my view, Ms. Ferjo's decision to terminate the complainant when she did was based at least in part on the complainant's absences which were directly linked to her pregnancy.

34There were no records produced to support Ms. Ferjo's testimony about the complainant's alleged performance issues including her absenteeism. There was no evidence that the respondent followed the company's progressive discipline and termination policy. Ms. Ferjo testified that she had learned a great deal from the process of responding to the complainant's allegations, particularly the necessity to maintain notes and records related to performance concerns. She admitted that she was erroneously of the view that if the termination occurred during the three-month probationary period she was not required to provide a justification of any kind, even where human rights allegations were raised. She was similarly unaware of her obligation to raise performance issues and absences with the complainant, assess whether they were connected in any way to the complainant's pregnancy, and determine if any accommodation was required.

35For all of those reasons, including the statement by Ms. Davidson at the termination, the connection between the complainant's absenteeism and her pregnancy, the failure to produce documents supporting the respondent's claim of "excessive absenteeism", and the respondent's failure to provide a reasonable explanation for the timing of the termination, I find that the Code was breached when the complainant was terminated.

36While the finding that the complainant's absences, which were linked to her pregnancy and were a factor in the termination, is sufficient to support a finding that the Code was breached, I cannot ignore the respondent's concerns about the complainant's performance about which employees other than Ms. Ferjo and Ms. Davidson testified. Those concerns, however, are relevant to determining the remedy which would be appropriate in these circumstances.

Performance Issues

37Ms. Davidson testified that she was responsible for setting up the complainant's training and that she had contact with her throughout the day. Ms. Davidson testified that the complainant was frequently upset and at times Ms. Davidson would ask the complainant what was troubling her. According to Ms. Davidson, the complainant would respond that she was upset by some personal issues. In some cases, Ms. Davidson would suggest that the complainant take a break from the reception desk. Ms. Davidson also testified that the former receptionist, Denise Burke, advised her that she was looking after the reception desk when the complainant became upset and that it was happening frequently.

38When asked about the number of times Ms. Davidson had seen the complainant in a state of upset, she testified that there were a few times when she observed the complainant in the hallway upset and talking on her cell phone. In addition, there were a few times that she walked by the reception desk and noticed that she was upset. Ms. Davidson testified that she would ask the complainant why she was crying and the complainant would respond that she was having personal problems. Ms. Davidson also gave evidence about the "welcome lunch" which was consistent with the testimony of Ms. Ferjo.

39Ms. Davidson testified that she spoke to the complainant and told her she was concerned about the number of personal phone calls the complainant was making and receiving throughout the day. Ms. Davidson also testified that she spoke to the complainant about wearing jeans. Ms. Davidson was clear in her testimony that despite these discussions, it was not her intention to give the complainant the impression that she could be terminated but that these conversations were an opportunity to provide the complainant with coaching to improve her performance. Ms. Davidson admitted that these were not verbal warnings.

40Ms. Davidson testified that she met with Ms. Ferjo more than once to discuss the complainant's performance, that they discussed the fact that other employees were reporting that the complainant was often upset, that she was coming to work in jeans, and the various times she had been late or absent from work. Ms. Davidson indicated that these discussions took place around the third week of December. Ms. Davidson testified that Ms. Ferjo told her that she wanted to terminate the complain[an]t. Ms. Davidson asked Ms. Ferjo to give her a second chance. In her view, the complain[an]t could eventually work out if she could "get a grasp on her personal issues".

41Ms. Davidson testified that she felt there was improvement in the complainant's work performance between December 15 and January 15. She was no longer receiving complaints from other employees and she was not personally observing the complainant on her cell phone or visibly upset.

42The complainant gave evidence that she was never disciplined either orally or in writing for any performance-related issues. A copy of her employment contract included the company's disciplinary procedures and Ms. Osvald confirmed in her evidence that she was never subject to any of the terms of the policy including verbal and written warnings and suspension. She felt that she was being encouraged and complimented about her work and that everything was going well. As a result, she described the termination as a shock.

43The complainant testified that she was more emotional during her pregnancy, but she denied that she was frequently upset as was alleged by the respondent or that her emotional state affected her work in any way.

44The Tribunal heard from three of the complainant's coworkers. The first, Robert Michie, was the Marketing Manager for the respondent during the complainant's employment. Mr. Michie gave evidence that he was responsible for training the complainant on the resources management system, online quote system, and on using the website. The first day of the complainant's employment, Mr. Michie spent approximately two hours providing her with basic training and then spent a bit of time with her every day helping to build her skills. Mr. Michie testified that the complainant was good some of the time but had difficulty concentrating and was upset quite a bit of the time. Although he could not say how many times he observed the complainant crying, leaving her desk at reception or talking in the hallway on her cell phone, in his view, her behaviour was out of the ordinary and it was affecting her work.

45Mr. Michie testified that he was approached by Ms. Ferjo for feedback on the complainant's performance and that he reported to Ms. Ferjo that the complainant was not concentrating at work and was not able to fully accomplish various tasks as a result. Overall he was not completely impressed with the complainant's progress.

46Mr. Michie testified that, although it was not his job to supervise the complainant throughout the day, they worked in a small office of approximately 20 people, and he observed the complainant crying at times, unable to be at the reception desk as a result, and on her cell phone in the hallway. Mr. Michie testified that he did not expect the complainant to immediately grasp the information he was training her on. He was looking at her progress overall and, in his view, she was not progressing at a satisfactory rate.

47The Tribunal also heard evidence from Laurie Scarfo who was a shipping coordinator for the respondent at the time of the complainant's employment. Ms. Scarfo testified that she and the complainant saw each other sporadically throughout the work day. She estimated their contact at about 10 times a day, five minutes at a time.

48Ms. Scarfo gave evidence that she was part of the welcome lunch for the complainant when she first arrived at work. Ms. Scarfo observed the complainant on her cell phone in the hallway before they entered the restaurant. Ms. Scarfo described the complainant as very upset. Ms. Scarfo testified that the complainant apologized at the table and told them that she was very upset and couldn't eat her lunch.

49Ms. Scarfo was asked her overall impression of the complainant as a receptionist and she responded that in her view the complainant was an intelligent young woman who was perfectly capable of learning the job but in her view there were some personal problems that were affecting how she was able to do her job. In Ms. Scarfo's view, without these problems, the complainant would have been fine.

50The third employee, Denise Burke, testified that she worked with the complainant and had an opportunity to observe how she was progressing. Ms. Burke had started with the company as a receptionist and was now an administrative assistant. She was responsible for providing the complainant with training in answering the phones, faxing, data entry, general office responsibilities. Ms. Burke testified that, in her opinion, the complainant's emotional state was getting in the way of her work.

51Ms. Burke testified that she was required to cover off the reception desk a few times a week because the complainant was upset and needed a break. In her view this happened with less frequency at the beginning of the complainant's employment and with more frequency toward the end. Ms. Burke testified that covering the complainant's absences at reception would interfere with her ability to get her own work done.

52On cross-examination, Ms. Burke admitted that the complainant was trainable and when she was working she performed well. However, Ms. Burke maintained that the complainant was crying at work on a regular basis, that she disclosed to Ms. Burke that she was having arguments and other difficulties with her family and that it was interfering with both the complainant's work and her own.

53I found all three employees fair and balanced in their description of the complain[an]t. Each of them worked directly with the complainant and expressed the view that she had potential and would likely have done well with the company but for the personal difficulties she was having which were affecting her work.

54It became clear through the course of the hearing that the respondent misapprehended its obligations under the Code in its dealings with the complainant. Throughout the hearing, Ms. Ferjo, on behalf of the respondent, relied on the view that the respondent had a right to terminate the complainant because she was a probationary employee without providing any justification.

55Similarly, Ms. Ferjo was of the view that the Code only prohibits the termination of an employee "because of her pregnancy" where the pregnancy was the sole reason for her termination. I have no doubt that Ms. Ferjo believed that she was not terminating the complainant "because of her pregnancy" in that sense; however, a finding that factors related to the complainant's pregnancy were among the reasons for the termination is sufficient for a finding of liability under the Code.

56There is, however, sufficient evidence to establish that the complainant was exhibiting behaviour which was disruptive and affecting her ability to concentrate and focus on her training. There were clearly differences of opinion about the nature of the complainant's performance and whether or not she would improve sufficiently to remain employed with the respondent. This is a factor which, in my view, may be taken into consideration in the context of determining the appropriate remedy.

REMEDY

57The Tribunal's remedial powers are set out in s. 45.2(1) of the Code, which provides the Tribunal with the discretion to order monetary compensation for injury to dignity, feelings and self-respect, to order restitution other than through monetary compensation and to direct any party to do anything to promote compliance with the Code.

58The Code is remedial and not punitive. Orders of the Tribunal should provide victims of discrimination with access to fair and effective remedies tailored to the facts of the case in order to achieve this remedial purpose: Heintz v. Christian Horizons, (2008) HRTO 22 (Can LII) [reported 2008 HRTO 22, 63 C.H.R.R. D/12].

59The Commission and the complainant seek lost income and monetary compensation. The Commission also seeks various public interest remedies which are designed to promote future compliance with the Code on the part of the respondent.

Compensation for Lost Income

60The complainant testified that she looked for work after the termination for two to three months. She made a choice not to put the respondent on her résumé because she feared that having to disclose the termination would negatively affect her chances for employment. The complainant testified that, as a result of not being able to demonstrate her experience as a receptionist, she felt forced to look for work in the retail or customer service fields which she had done before joining the respondent. Within two and a half to three months after the termination, the complainant discovered that she was pregnant again and testified that shortly after that she gave up looking for work because she was certain that no one would hire her.

61When she was questioned by Ms. Ferjo, the complainant estimated that she applied for 15 office positions and 10 to 15 retail or customer service positions. She testified that she made 40 or 50 copies of her résumé and did not have many left after looking for work for two to three months. The complainant admitted that she had been offered a personal reference from the personal assistant to the president of the company which she did not rely on, choosing instead to simply leave the respondent off her résumé. The complainant testified that she was upset at the respondent and it was her choice not to use the reference. Although I have concerns about the complainant's approach to her job search, including the choice not to identify the respondent as her last employer, I am satisfied that the respondent has not proven a failure to mitigate on the part of the complainant for this period.

62In February of 2007, the complainant commenced collecting employment insurance benefits and in January of 2008 she gave birth to a healthy baby boy. The complainant claims that as a result of the termination, she was not employed when her son was born and did not qualify for maternity/parental benefits. Her employment insurance benefits ended in November 2007 and she went without income until she qualified for Ontario Works in August 2008. The complainant testified that she was anxious to return to work as soon as possible.

63The Commission filed a hearing brief in the normal course of preparing for the hearing, setting out the remedy requested on behalf of both the Commission and the complainant. The original hearing brief did not include a request for compensation for lost income. At the commencement of the hearing, the Commission filed a revised request for remedy seeking lost income from the date of termination up to the point at which the complainant would have commenced her maternity leave in December 2007 and then an additional 50 weeks of compensation representing the claim for lost maternity benefits.

64The respondent took the position that the complainant was terminated during the period of her probation and therefore not entitled to compensation for lost income including "reasonable notice". In addition, the respondent argued that the complainant should have been able to secure a position shortly after the termination since she had a demonstrated history of obtaining employment in retail and customer service positions with relative ease.

65Neither of the positions advanced by the parties on lost wages are, in my view, consistent with the remedial imperatives of the Code.

66I agree with the decision of the Tribunal in Lane vs. ADGA Group Consultants Inc., 2007 HRTO 34 [reported 61 C.H.R.R. D/307] that the concept of reasonable notice and the manner in which that principle is generally applied to deny compensation to probationary employees, is not the legal test for calculating compensation for lost income under the Code. In Lane, the Tribunal relied on the decision of the Divisional Court in Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 [reported 52 C.H.R.R. D/89] (Ont. Div.Ct.). In Smith, the Divisional Court endorsed this conclusion of the Court of Appeal in Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 [at § 45017]:

. . . The purpose of the compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred. I find nothing in the language of the foregoing section which would import into it the limit on compensation which is imposed by the common law with respect to claims for wrongful dismissal.

67This is not to suggest that the claim for compensation for lost wages is unlimited. The Tribunal in Lane affirmed a limit other than reasonable notice which involves an evaluation of the impact of the respondent's conduct on the complainant's ability to earn a living (at § 160). This finding is also consistent with the language of the Code which provides a remedy in the form of compensation for "loss arising out of the infringement". Since compensation under the Code is the subject of different analysis, the period of compensation awarded under the Code may at times exceed, reflect or fall below the standard of reasonable notice.

68Applying that test, I cannot agree with the Commission and the complainant that the respondent is responsible for lost wages up to the point of what would have been the complainant's maternity leave and then maternity leave benefits following that date. That finding would require evidence that the respondent's conduct deprived the complainant of the ability to earn a living up to the point of her maternity leave. The complainant was not pregnant at the time that she was terminated. The evidence established that she is a bright, articulate young woman who is just at the beginning of her professional career. She has a history of securing employment in the retail environment and when she sought her first position as a receptionist she found herself with two offers despite the fact that she had no previous experience.

69I have no difficulty accepting the complainant's evidence that her experience with the respondent affected her confidence and her ability to search for work. The complainant testified that she was devastated by the miscarriage and that those feelings were compounded by the ensuing termination. She testified that she felt like "garbage" and that it took her time to regain the confidence she lost as a result of the respondent's actions. It is reasonable to conclude that the respondent's actions affected the complainant's ability to earn a living for a period of at least two months and I award the complainant compensation for lost wages on that basis.

70There are two other factors which in my view do not support an award beyond two months' wages. The first is that there is evidence to support the respondent's concerns about the complainant's performance and, as a result, I cannot award lost wages for a longer period based on the assumption that those concerns are simply pretextual. The second is that the respondent is not responsible for the intervening events which affected the complainant's ability to earn a living, including the complainant's pregnancy and her decision to voluntarily cease her employment search. Even if I accepted the complainant's assertion that she was unlikely to be hired by anyone because she was pregnant, I cannot assign responsibility for that fact to the respondent.

71The Commission has also requested $2,500 for retraining and outplacement counseling. The complainant testified that she was anxious to return to work as soon as possible but also found that her experience with the respondent had the effect of diminishing her confidence in her ability to secure employment. In my view this request is reasonable and directly connected to the effects of the respondent's conduct. The complainant may identify the retraining and/or outplacement counseling service of her choice and the respondent will pay the expense up to a maximum amount of $2,500.

Compensation for Injury to Dignity, Feelings and Self-Respect

72Prior to the coming into force of s. 45.2, the Tribunal had developed relevant criteria for assessing damages to compensate the complainant for her inherent right to be free from discrimination and for mental anguish: (see for example Ketola v. Value Propane Inc. (No. 2), [2002] O.H.R.B.I.D. No. 14 (QL) [2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37] and Sanford v. Koop (No. 2), 2005 HRTO 53 [reported 55 C.H.R.R. D/102]. Since the coming into force of s. 45.2, the Tribunal has found the criteria developed in those previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect ( Hughes v. 1308581 Ontario, 2009 HRTO 341 [reported 67 C.H.R.R. D/81].

73The Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605, (2008), 295 D.L.R. (4th) 425 [64 C.H.R.R. D/132] (Ont. Div.Ct.) at § 153, held that the following are among the factors that the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

74The Commission and the complainant seek a total of $35,000 for injury to dignity, feelings and self-respect.

75The complainant testified that she was just beginning her professional working career when she was offered a position by the respondent. The complainant testified that she was shocked by the termination, coming as it did, on her first day back to work after her miscarriage. The miscarriage itself had taken place at work and the complainant was traumatized by the experience. She testified that the termination and the manner in which it was carried out made her feel "like garbage", that she was humiliated by losing her job under those circumstances and that it was a long time before she could regain the confidence she lost. In all of the circumstances, I consider an award of $10,000 to be appropriate compensation for injury to the complainant's dignity, feelings and self-respect.

Orders to Promote Future Compliance with the Code

76The Commission seeks the following future compliance orders:

1. An order that the respondents provide the complainant with a letter of regret;

2. An order that within three months, the corporate respondent will, at its own cost,

(a) Hire a human rights consultant, approved by the Commission, to provide a mandatory human rights training program about human rights in general, with a particular focus on pregnancy-related rights, for all employees at the workplace, including management; and

(b) Send a letter to the Commission counsel, within ten calendar days, signed by the human rights consultant, confirming that this training has been completed; and

3. An order that the respondent post Code cards, to be provided by the Commission, in plain and obvious locations in its workplace where employees can plainly see them. The cards will be posted within a week of being received.

77The Tribunal has the discretion to award remedies which are directed at promoting compliance with the Code. Broad future compliance orders were awarded by the Tribunal in Lane for the following reasons (at § 164):

This was an instance where the respondent's lack of awareness of its responsibilities under the Code as an employer was particularly egregious. There were no workplace policies in place on dealing with persons with disabilities. Moreover, senior management were singularly oblivious to those obligations. In addition, there are serious doubts in my mind as to whether these were matters that were part of the operational imperatives of the Human Resources Department, at that time under the direction of Ms. Burgess. As a consequence, the Commission was justified in seeking a broad range of public interest remedies for the purposes of ensuring inculcation in the values of the Code and aimed at avoiding the discrimination that formed the basis of this complaint.

78In this case, the Commission is similarly justified in seeking a broad range of future compliance orders. The evidence at the hearing established that the employees of the organization lacked the training and policies they needed to carry out their obligations on behalf of the respondent in a manner consistent with the Code. As a result, the individuals involved in the termination of the complainant's employment over-emphasized the organization's "rights" with respect to the termination of a probationary employee and failed to consider the complainant's rights under [the] Code. With even a modicum of training and awareness, these employees would have been in a position to understand that their view that the complainant "was not working out" was rooted in part, in factors that were directly linked to her pregnancy.

79In my view, the request on the part of the Commission for a letter of regret is no longer required. Ms. Ferjo offered the complainant an apology at the conclusion of the hearing and, given her role in the termination of the complainant, an apology from her personally was appropriate.

80The Commission and the complainant requested, and I agree, that pre-judgment interest on the monetary compensation will run from the date of the complaint. Post-judgment interest will run from 30 days from the date of this decision. The rates for calculation of interest are as set out in s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.

ORDER

81Accordingly, the Tribunal orders as follows:

a. Within 30 days of the date of this decision, the respondent shall pay the complainant $10,000 as monetary compensation for injury to dignity, feelings and self-respect;

b. Within 30 days of the date of this decision, the respondent shall pay the complainant the equivalent of two months' lost wages, subject to statutory deductions, to be calculated on the basis of the complainant's annual income at the time of the termination of her employment.

c. Payment for outplacement training to a maximum of $2,500 if requested by the complainant, either in advance directly to the outplacement service, or directly to the complainant upon presentation of a receipt;

d. Pre-judgment interest is payable on all monetary payments from the date of the complaint to the date of this decision, in accordance with the Courts of Justice Act. Post-judgment interest is payable on any amount not paid within 30 days of the date of this decision in accordance with the Courts of Justice Act.

e. Within 90 days of the date of this decision, the respondent shall, at its own expense: hire a human rights consultant, approved by the Commission, to provide a mandatory human rights training program about human rights in general, with a particular focus on pregnancy-related rights, for all employees at the workplace, including management; and send a letter to the Commission counsel, within 10 calendar days, signed by the human rights consultant, confirming that this training has been completed; and

f. Within 30 days of the date of this decision, the respondent will post Code cards, which are currently available on the Commission's website, in plain and obvious locations in its workplace where employees can plainly see them.