Ada Garcia v. H.J. Heinz Company of Canada Ltd., 2010 HRTO 990

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ada Garcia

Applicant

-and-

H.J. Heinz Company of Canada Ltd.

Respondent

DECISION

Adjudicator: Judith Keene

Date: May 5, 2010

Citation: 2010 HRTO 990

Indexed as: Garcia v. H.J. Heinz Company

Appearances by

Ada Garcia, Applicant ) Peter Hrastovec, Counsel

H.J. Heinz Company of Canada Ltd., ) Margaret Szilassy, Counsel

Respondent )

1This is a Decision in respect of an Application filed on November 25, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of sex and race.

2I have decided that the applicant has not proven a breach of the Code as alleged. My reasons follow.

The Issues

3The applicant had drafted her Application before retaining counsel. Over the course of the first two hearing days, October 21 and 22, 2009, the issues for the purposes of the Code were narrowed and somewhat clarified. The issues of most importance to the applicant were alleged discriminatory behaviour during her employment, and the assessment by the respondent that she was not suitable for permanent employment, followed by the termination of her employment on August 22, 2008. The applicant states that she was treated unfairly during employment and that her employment was terminated because of her race or her sex, or both.

4The respondent denies all allegations of discrimination, and asserts that the applicant was dismissed before the end of a probationary period, because she was not consistently meeting expectations.

Preliminary matters and procedural fairness ruling

5At the outset of the hearing, some late disclosure issues on the part of the applicant were dealt with. Neither the applicant nor the respondent had met their obligations concerning disclosure of documents, witness lists and witness statements according to the timelines set out in Rules 16 and 17 of the Tribunal's Rules of Procedure. The respondent did provide the materials required under the Rules, but these did not reach the Tribunal until 12 days before the first date set for the hearing. The applicant provided only brief will-say statements on the first day of hearing.

6One of the applicant's anticipated witnesses, Anne Pickle, was not, after all, called by the applicant. Another, Julia Wilson, was not available in a timely fashion to testify. The applicant's counsel confirmed that the only evidence anticipated from this witness was evidence of the applicant's good character. Respondent's counsel confirmed that there was no issue of bad character. In the circumstances, I did not allow the hearing to be suspended or the case to be split to allow for the testimony of this witness.

7The issues having been narrowed, there was an agreement between counsel that two of the respondent’s witnesses were not called.

8The most serious procedural issues arose during the first and second days of hearing. The applicant testified in a somewhat vague manner during most of the hearing, focussing more on how she had interpreted alleged incidents than on what had allegedly occurred. At one point in her testimony in chief, the applicant appeared to be making an allegation that test scores had been falsified. This issue had not been raised in the Application or at any time in the process prior to the hearing. After hearing counsel, I ruled that as a matter of fairness this allegation could not be made an issue at this late date.

9On the second day of the hearing, during cross-examination, the applicant raised the name of another employee of the respondent, and appeared to be stating that this employee had worked with her previously and had given information about her to the respondent. This allegation appeared to be made in the context of the applicant's beliefs about why she was fired, and her belief that her dismissal was connected to events at a previous place of employment.

10As the applicant appeared to be raising an issue of reprisal in her evidence, I considered whether it would be fair for her to pursue this issue at this stage. The Application form contains a check-off list; “reprisal” had not been checked off. The text written by the applicant to accompany her Application did not mention the name of the employee to whom she had referred, nor did it contain any allegation that information from a previous work experience had influenced the respondent's treatment of her or decision to terminate her employment. Although she retained counsel after she drafted her Application, the applicant had not requested to amend the Application. The point at which the applicant raised this issue was fourteen months after the decision to terminate her employment. Once again, after hearing from counsel, I ruled that as a matter of fairness, an allegation of reprisal could not be dealt with in the hearing.

The evidence

11I heard testimony from the applicant and her witnesses, Sharon Danton and Shirley Ouelette, and from the respondent’s witnesses, Steve Taylor, Jim Barr, John McFarlane, Sharlyn Allard and Nicole Beaulieu.

12The applicant, a Canadian citizen, self-identifies as a “person of Hispanic origin; a Latina”. Her working experience has been on farms and in the manufacturing sector. She applied for a position in the respondent's factory in the spring of 2008.

Discriminatory treatment during employment

13The respondent’s hiring process includes an interview and a written test, the answers to both of which are scored. The candidates are then ranked based on the combined interview and test scores. The applicant was interviewed on May 21, 2008 by the respondent's Business Unit Manager and a Human Resources Coordinator. She scored 12 of a possible 20 on the interview questions and 7 out of a possible 10 on pre-employment test. She was one of four candidates in that hiring period with the lowest accepted score of 19 out of 30

14The applicant alleged that, during the hiring process and just before the interview, Nicole Beaulieu, a Human Resources Assistant employed by the respondent, looked her up and down and walked away. She believed that this look was evidence of a discriminatory attitude.

15The applicant was one of 27 candidates offered employment on a probationary basis during the respondent’s busy season. The evidence of the respondent, which was not contradicted, is that during a 60 day probationary period, the respondent assesses the individual’s suitability for “full-time” (as opposed to the short-term “seasonal”) employment; it is not unusual for people to continue in seasonal employment only for several years, before becoming full-time employees.

16Before commencing work, the applicant attended an orientation session on May 23, 2008. The orientation session was conducted by Steve Taylor, the respondent's Loss Prevention Manager, and Martina DeAngelis, a Human Resources Coordinator. The applicant alleged that, while she was writing a test, Mr Taylor was paying close attention to her and “when he realised that I was taking my time he shouted…OK, time is up”. The applicant also alleged that, during the review of the respondent’s anti-discrimination policy (part of the orientation session). Mr Taylor left the room and seemed nervous, worried and confused. Mr Taylor had no recollection of this.

17During the orientation session, Nicole Beaulieu was informed by a timekeeper that only 24 of the 27 new hires were needed to start work on May 26; the rest would start a week later. Ms Beaulieu decided that the candidates who were the lowest-ranked on the test and interview scores would start later. Four new hires including the applicant were at the bottom of the ranking. One of the 24 positions to be filled was in the warehouse, and, from the four new hires remaining, Ms Beaulieu selected one who had previous warehouse experience. The applicant was informed that she and two others would not be starting work on the same day as the other new hires. She testified that she thought the later start date might be because of discrimination against her, and believed that the other two employees who were on the list to start later were victims of the respondent’s discrimination against her.

18As it turned out, the applicant did start work on May 26. That day when Ms Beaulieu arrived at work, she was informed that the other three new hires were needed after all. She called the applicant and the applicant started work at 1:30 that day.

19The day she started work, the applicant went to the Human Resources Department to enquire how the decision was made as to when the new hires should start. The applicant said that she wanted to talk to Mr Taylor and “confront him”, but he was not available. She spoke to Ms Beaulieu and Rhonda Chorba, but she did not raise the issue of discrimination; “I wanted not to be direct”. Ms Chorba “told me they picked people by score, but I thought she didn't understand my question. I said okay and left”.

20The applicant made several allegations concerning her treatment after she started work. First, she alleged that she was denied proper training when she began work, although she later admitted that she did have training, including three days of training on June 23, 24 and 25. She also stated that she was not invited to an annual training event. In cross-examination, she stated that she expected her supervisor to invite her to this event, and that she did not see a notice that was put up by the schedule, telling everyone to come to the training. She admitted that she did in fact attend the training.

21The applicant alleged that some individuals employed by the respondent essentially conspired to find or fabricate reasons to fire her. She was asked to train a new seasonal worker on a machine, but believed that the person presented as a new seasonal worker was a former employee of the respondent who had been asked to find a out information about the applicant that the respondent could use as an excuse to fire her. She also alleged that the respondent assigned people to watch her at her locker to obtain evidence that she was hoarding coveralls or taking coveralls home. The applicant's testimony on this point was extremely vague. Her witnesses did not give any evidence that might have supported these allegations. The respondent maintained that there was no such conspiracy, and I believe the respondent’s assertions.

22The applicant acknowledged during her testimony that many of her perceptions of discrimination were based solely on “looks, gestures and behaviour”. There is no question that looks, gestures and other non-verbal behaviour can be evidence of a discriminatory attitude. However, most of the events described by the applicant were, at best, ambiguous, and there were reasonable explanations offered by the respondent. Despite this, the applicant was absolutely certain that all of the events she alleged had occurred were evidence of discrimination, and refused to admit to any ambiguities. She stated “if you don't want to see it you won't. I have no proof but I will always believe it”.

23In this case, the applicant has not put forward sufficient evidence of discriminatory treatment during her employment to meet her burden of proof of a breach of the Code.

Termination of employment

24The respondent gave undisputed evidence that, each year, it brings in about 250 employees for seasonal work, and that, pursuant to the relevant collective agreement, employees hired for seasonal work have a 60 day probationary period before they are considered “full-time” and able to accrue seniority. The respondent's witnesses indicated that some employees are employed on a seasonal basis only for several years, before finally staying on for over 60 days and becoming full-time employees. One of the applicant's witnesses, Ms Ouelette, confirmed that this had been her experience.

25The applicant’s employment was terminated on 22 August 2008, with a notation on her evaluation form that the supervisor who fired her would hire her back, but only for seasonal work as she did not meet the company’s full-time standards.

26The respondent stated two reasons why the applicant was “released” before she had reached 60 days in employment. The first was an occasion on which the applicant became upset in a way that interfered with her work. Mr McFarlane, one of the applicant’s supervisors, testified about an incident on August 9, 2008. He was called by a “lead” worker about an individual on the pickle line who was upset. The applicant was at the pickle line but was not sorting pickles; she was crying. Another line operator was consoling her and pickles were going by unsorted. Mr McFarlane asked the applicant what the problem was, but she would not tell him. He told her to stay off the line until she was in a better frame of mind. She returned 30 minutes later.

27The applicant denied that this incident had occurred.

28Sharlyn Allard, the Production Supervisor who was required to assess the applicant’s job performance in July and August of 2008, witnessed only the end of this incident, as she was out of the room at the time. She said that the applicant was standing off to the side of the room and looked as though she had been crying. Ms Allard asked what was wrong, but the applicant said she was fine. “I said, “are you sure?”, but she said she was fine”. Sharon Danton, one of the applicant’s witnesses, confirmed that she was working in the same department on 9 August 2008, and that she noticed that the applicant was crying that day. She confirmed that the applicant was excused from the line, and that her supervisor, Mr McFarlane, had tried to speak to her.

29Shirley Ouelette, the applicant’s other witness, worked with the applicant “a couple of times”. Her impression of the applicant was that she is a nice lady and seemed fine as a worker. She too confirmed that, one day, the applicant cried for a long time, and no one knew why. Mr McFarlane, the supervisor, excused her from the line. Ms Ouelette went with the applicant to the room that employees used for breaks and stayed with her for a few minutes. She stated that eventually the applicant returned to the line.

30The respondent also cited a number of errors made by the applicant in support of its decision. Three incidents were documented in evidence dated July 24, 2008: one in which the applicant let cans go by on the line she was working on with the lids affixed upside down, causing a line jam, damage to 10-15 cans and the loss of approximately 25 cans; one incident of missing cans, causing a line jam, resulting in production delay, an incident in which the applicant failed to notice that cans were being filled only half full, resulting in a line shut down and the loss of approximately 1000 cans. Finally, on August 21, 2008, the applicant failed to notice an upside-down can, which caused an elevator jam. Detailed evidence in respect of these incidents was given by Sharlyn Allard. Ms Allard stated that she reminded the applicant to keep her eyes on the line when things went wrong because of the applicant’s inattention. She also very fairly cited an instance in which the applicant had acted quickly and appropriately to stop the line when there was a problem—“she did the right thing”.

31Ms Allard stated that she had not had a chance to fill out the applicant’s “probationary evaluation” form for August, so Mr. Barr did it. However, she was consulted on whether to retain the applicant in employment.

32Jim Barr is also a Production Supervisor. He supervised the applicant on only four of the days that she worked for the respondent, but witnessed two incidents in which the applicant was the cause of a line jam. His assessment was that she was performing her job “fairly well” and but was not “top-notch”. He spoke to the applicant after the incident on 21 August about being more observant.

33Sharon Danton has had four years of experience working for the respondent and worked regularly in the same department as the applicant. Ms Danton testified that having to stop the line, for example because of a “bad can” or a “bad lid” does not happen often “if you were watching”, but that some mishaps are unavoidable. She stated that she had trained the applicant and watched her but had not worked with her. Her general impression was that the applicant was a hard worker and always on time.

34The applicant admitted that these incidents had occurred, but maintained that this was not the reason she was fired.

35The decision to terminate the applicant’s employment was taken by Ms Allard, Mr. Barr and Mr. McFarlane. Ms Allard testified her opinion was that there were other seasonal employees that would benefit her department, and that the applicant should be laid off. Her assessment was that the applicant was a “fair” employee. She said that she would have “felt okay about rehiring [the applicant] for the next season”, and that she said so to Mr. Barr and Mr. McFarlane. “I thought she should have another year as a seasonal employee. Supervisors recommend another year quite frequently”.

36The applicant stated that, on August 22, 2008, she that noticed her name was not on the work schedule. She was told to see Jim Barr. He gave her an evaluation sheet and told her she was dismissed. He said her performance was good, but that they were not hiring full-time.

37Mr. Barr’s recollection of the meeting of August 22 is somewhat different. He stated that he tried to explain the evaluation process to her. He testified that the applicant was adamant that she had been hired as a permanent employee with no probationary period and that a supervisor could not lay her off. She wanted the union in on the meeting and Mr. Barr agreed to that. Two union officials attended and tried to explain. Mr. Barr testified that, at this point, the applicant mentioned that she had worked at LDM, a factory that had closed down. She said that all former LDM employees had been hired as permanent employees. She wanted to stay in the building and “go to the owner or whatever it took. At that point I was getting upset and I considered calling security, but I didn't”. Mr. Barr asked the union officials about LDM, but they said they knew nothing about it. He advised the applicant to talk to human resources.

38The LDM issue was not asserted as an instance of discrimination; it appears that the applicant had been mistaken or had received incorrect information.

39There is relatively little documentation concerning the applicant's performance in the job. The respondents filed an employee record card with a notation from Mr. Barr dated August 21 about speaking to the applicant “about watching for upside down cans. One jammed the elevator again.” The respondent also filed two “probationary evaluation” forms signed by Mr. Barr; one dated July 25, 2008 and headed “30 day evaluation”, and the other dated August 20, 2008, and headed “50 day evaluation”. On the August form as a handwritten notation, indicating that the form was filled out at “46 days”. In each, the performance is rated as “satisfactory”. Under the “satisfactory” notation on the July 25 form is “needs more evaluation on graded jobs“. On the August 20 form, the notation is “employee performs grade 3 jobs fairly well. Not hiring full-time in our department at this time“. On the July 25 form there are two boxes; one that indicates “potential for full-time employment” and the other “not suitable for full-time (release)”. The July 25 evaluation indicates “potential for full-time employment”.

40On the August 20 form, there are two boxes; one that indicates “hire for full-time” and the other “not suitable for full-time (release)”. The respondent also filed an “employee evaluation form”, dated August 22, 2008 and signed by Mr Barr. There are “yes” and “no” boxes under the question “has the employee performed their duties, quantity and quality of work in a satisfactory manner?”. Under that question, there is a space headed by “if no, please provide a brief explanation”. There is a tick in the “yes” box, but there is also a hand written note in the “If no” section. The note says “had a couple minor discussions about running seamers”. The box for “dismissed” is checked off with a hand-written reason: “not hiring full-time in our area at present”. The question “would you rehire this employee?” is answered “yes”, although this was qualified with “rehire seasonal only (does not meet company’s full time standards)”.

41The respondent has established credible reasons for the termination of the applicant’s employment that do not breach the Code.

42The respondent produced six e-mails in evidence relevant to the dismissal. The first, from Ms Beaulieu in Human Resources, confirms that according to “the evaluation”, the applicant is “not suitable for full-time at this time and should be released”. It ends “if she is not suitable for full-time then someone should sit down with her and let her know that she is done before she gets her 60 days in.” In reply to the e-mail on the same day Mr. Barr undertakes to let the applicant know that “she'll be released before 60 days”. The e-mail contains the statement “Nicole, I need you to pull her file and do a reference check. One of her employers was [EK] (check with [AB] HR)…I heard a rumour that she brought issues of harassment against a supervisor and it cost a lot of money to resolve etc…I know it is not my area of expertise but maybe we should do more reference checks on seasonals, especially when people are close to 50 days.” Ms Beaulieu’s reply e-mail, dated 21 August, says “we are not unable (sic) to ask these sorts of questions, nor should the other company be supplying us with this information”.

43As indicated earlier in my decision, I ruled that it was too late for the applicant to raise a claim of reprisal under the Code. I therefore did not hear any evidence about whether events arising out of the applicant’s previous workplace influenced the respondent’s decision to terminate her employment and the contents of this email are thus not relevant to my determinations. In any event, on their face, the e-mails indicate that by the time the “rumour” was raised, the decision to terminate the applicant’s employment had been made, for reasons that do not breach the Code.

44Based on the evidence before me, I find that the respondent did not violate the Code.

45The Application is dismissed.