Navjot Aujla v. BJS Sales Marketing Inc., 2010 HRTO 966

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Navjot Aujla

Applicant

-and-

BJS Sales Marketing Inc.

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: May 3, 2010

Citation: 2010 HRTO 966

Indexed as: Aujla v. BJS Sales Marketing ________________________________________________________________

APPEARANCES

Navjot Aujla, Applicant ) On her own behalf

BJS Sales Marketing ) Kelly Stafford, Representative Inc., Respondent )

1In this Application, filed pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.10, as amended (the “Code”), the applicant alleges discrimination on the basis of sex in her employment. In essence, she alleges that the respondent discriminated against her because it terminated her employment upon learning that she was pregnant.

2A hearing was held in this matter on April 27, 2010. The Tribunal heard evidence from the applicant and from Melissa Buccioli, Robyn Fairley, Summer Percival, and Shaila Hansen.

3For the reasons that follow, the Application is dismissed. Based on the evidence before me, I cannot conclude that the respondent’s decision to dismiss the applicant was discriminatory.

THE FACTS

4The respondent operates a number of Tim Horton’s stores. The applicant worked for the respondent from October 20, 2008 until October 28th, 2008, when her employment was terminated.

5At the time she was employed by the respondent, the applicant was approximately five weeks pregnant. She states that she was not suffering from morning sickness and that her pregnancy would not have affected her ability to do the job. She also testified that she was not visibly pregnant at the time.

6The applicant states that she performed well in training. She testified that, by October 27, she was left to work autonomously at the storefront of the store, which she feels shows that the respondent had confidence in her abilities.

7She testified that, on October 27, an assistant manager pulled her aside and asked her if she was pregnant. The applicant confirmed that she was and her employment was terminated the following day. The applicant believes that she was dismissed because she was pregnant.

8The respondent denies discriminating against the applicant and disputes this version of the facts. It states that the applicant performed poorly in training and that the decision to dismiss her was based solely on her performance. The respondent denies that it knew the applicant was pregnant when it terminated her employment.

9Robyn Fairly, a crew trainer who oversaw the video training provided to the applicant, testified that the applicant needed additional time to complete the video training and required assistance. Ms. Fairly stated that she had to help the applicant view parts of the video a second time.

10Summer Percival, the assistant manager who was involved in the applicant’s hands on training, testified that the applicant was not performing to standard and was not grasping how to prepare coffee according to customer orders.

11Ms. Percival testified that she contacted Kelly Stafford, the Human Resources Director, to advise her that the applicant’s work was not up to standard. Ms. Stafford then decided to dismiss the applicant.

12All of the witnesses for the respondent deny knowing that the applicant was pregnant at the time. The respondent states that, in any event, it has a policy to support employees while they are pregnant. It does not see pregnancy as an impediment to performing the job and regularly and willingly employs pregnant women. The respondent vehemently denies that it would have fired an employee because she was pregnant.

13The applicant testified that, on October 27, she told one or two of her co-workers that she was pregnant. None of these co-workers testified. The applicant was unable to name the assistant manager she says inquired about her pregnancy but states that she was tall, had curly hair and was Black.

14The respondent’s evidence is that none of its management staff in 2008 fit that description.

ANALYSIS

15The Code states:

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.

16In order to determine whether the applicant was discriminated against, I need to resolve some of the factual disputes in the evidence. In particular, the evidence of the witnesses differs regarding the applicant’s performance and the respondent’s knowledge, if any, of the applicant’s pregnancy.

17In assessing credibility, I have applied the traditional test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A):

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.

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

18In addition to these factors, I have also considered those set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence.

19I appreciate that, in the circumstances, the applicant faces some evidentiary challenges; she cannot remember the name of the assistant manager she says inquired about her pregnancy. She says this person was not produced as a witness by the respondent.

20In general, I found that the evidence of the respondent’s witnesses was provided in a manner that was straightforward, consistent and reasonable in the circumstances. While I recognize the evidentiary challenges faced by the applicant, I am nevertheless persuaded by the respondent’s witnesses.

21I find that no member of the respondent’s management team asked the applicant whether she was pregnant. I conclude also that the respondent’s management team was not aware of the applicant’s pregnancy at the time she was dismissed.

22According to the respondent, at the material times, the store operated with two assistant managers, but no manager. Both assistant managers (Summer Percival and Robyn Fairley) testified before the Tribunal. The applicant stated that neither was the person who inquired about her pregnancy. Summer Percival further testified that she did not know of any member of the management team in October 2008 who met the applicant’s description of the assistant manager. She testified that, at the material time, she was the only African-Canadian member of the management team.

23It may be that the person described by the applicant inquired about her pregnancy. But the evidence does not lead me to the conclusion that this individual was part of the respondent’s management team or that she disclosed the information about the applicant’s pregnancy to management.

24The applicant was employed by the respondent for a short time. In the Application, the applicant identified Ms. Percival as the store manager when, in fact, Ms. Percival was an assistant manager. It may be that the applicant did not have an opportunity to form a clear impression of the members of the management team or their roles.

25In any event, I accept the respondent’s evidence that it did not know the applicant was pregnant and that its decision to dismiss her was based on performance concerns. Summer Percival, in particular, provided specific examples of instructions she said the applicant was unable to grasp.

26I understand that the applicant disputes that she had any difficulty during the training. However, I accept that the respondent perceived her to be unsuitable for the job and that its decision to dismiss her was based on this perception.

27Accordingly, the Application is dismissed.