HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne McErlane

Applicant

-and-

The Seagull Company Inc.

Respondent

case Resolution Conference DECISION

Adjudicator: David Muir

Date: April 19, 2010

Citation: 2010 HRTO 852

Indexed as: McErlane v. The Seagull Company

AppearanceS BY

Anne McErlane, Applicant ) Ernest J. Guiste,

) Counsel

The Seagull Company, Respondent ) Christopher Goh,

) Representative )

[1] This is an Application filed on October 16, 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 applicant alleges that her right to be free from discrimination in employment has been infringed by the respondent, her former employer. The applicant, who self-identifies as a Scot with an apparent accent and a person of a certain age, was employed by the respondent for three months as a receptionist and believes that she was terminated from her employment in whole or in part because of her age and her place of origin.

[2] A Case Resolution Conference (hearing) was held in this case on March 2, 2010 in Toronto. At my suggestion the parties agreed that the respondent employer should lead its evidence first, explaining its reasons for terminating the applicant’s employment. I heard from Deborah Petrini, the applicant’s supervisor, Christopher Goh, an owner of the firm, Grace Francella, Astrid Schafer, Anne Viscardis and Joy Yi all employees of the respondent. I then heard the evidence of the applicant. In addition a number of signed statements were relied upon by the parties.

[3] The respondent is an import-export firm. Much of its business is done over the telephone. The applicant was suggested for the position of receptionist by her friend whom she replaced in the position. The applicant applied, was interviewed, and offered the position with an initial probationary period of two months.

4The applicant’s position was that her termination was otherwise inexplicable and accordingly the inference should be drawn that the decision was informed in part by considerations of her age and place of origin.

[5] The respondent states that the applicant was terminated because, as a probationary employee, her performance in the job did not meet expectations in the view of her immediate supervisor, Deborah Petrini. In particular the applicant was criticized for occasionally using coarse language, for being impatient with customers on the phone, for mis-communicating telephone messages, wrongly transferring telephone calls and behaving rudely with other staff.

[6] The evidence of the respondent’s witnesses confirmed that there was a basis for the respondent’s concerns regarding the applicant’s performance. Taking into account that they all continue to be employed by the respondent, the evidence of the respondent’s witnesses was given in a straight forward manner and was credible. The applicant herself acknowledged that her probation was extended, although she also stated that her work was commended on more than one occasion. It was also the evidence of the respondent’s witnesses that it made enquiries of the “labour board” and was told that an employee on probation could be terminated. It is not disputed that the applicant’s friend, whom she replaced in the position, is slightly older than the applicant and that the applicant’s successor in the position was a woman of a similar age.

[7] The applicant had no direct evidence that the termination of her employment was tainted in any way by considerations of her age or her place of origin. The only reference to her accent and hence her place of origin was some weeks before her termination when she was recording a voice message for the firm’s telephone answering system and someone queried, perhaps the applicant, whether her accented English would be understood. Ms Petrini listened to the message and said it was fine. There was no overt indication that her age was an issue in any way.

[8] As indicated the witnesses all confirmed to some degree the concerns of management with respect to the applicant’s performance. While the applicant successfully established that she was not a bad employee and that it is unlikely that the performance issues raised with her would amount to cause or just cause for dismissal that is not the standard that informed the respondent. As indicated they considered her to be on probation and believed, rightly or wrongly that they could terminate her without consequence for any reason at all. Unless otherwise prohibited by law, such as the Code, the employer’s understanding of its rights was not inaccurate. It is against that standard of performance that the drawing of inferences must be considered.

[9] I also note that, based on the evidence I heard, this was and is a multi-ethnic workplace. Many of its employees who interact with the public as part of their regular duties had accented English as least as noticeable as that of the applicant. I also note again that the woman the applicant replaced in the position was of a similar age as was the woman who replaced her after the applicant was terminated. On the basis of all of this evidence I do not find that the decision of the employer was inexplicable or irrational such that the inference the applicant wishes me to draw is appropriate.

10The Application is dismissed.