HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amanda Bickell
Applicant
-and-
The Country Grill
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Bickell v. The Country Grill
APPEARANCES
Amanda Bickell, Applicant ) Self-represented )
The Country Grill, Respondent ) No one appearing
1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 8, 2009, alleging discrimination in employment because of sex (pregnancy).
2On January 26, 2010, the Tribunal issued a Notice of Application to the respondent. The respondent was advised that a Response must be filed with the Tribunal not later than 35 days after January 26, 2010. No Response was received.
Background
3The Tribunal issued an Interim Decision dated May 10, 2010 (2010 HRTO 1041) (“the May Interim Decision”) in which the Tribunal noted the failure of the respondent to file a Response and gave the respondent until May 13, 2010 to file a Response together with an explanation of why the Response was not filed in accordance with the original Notice of Application. The May Interim Decision further stated that if the Response was not received, the Tribunal might proceed without further notice to the respondent and it might take any or all the steps set out in Rule 5.5 of the Tribunal’s Rules of Procedure. Pursuant to the order set out in the May Interim Decision, a copy of the May Interim Decision was sent to the respondent by regular mail and courier. Neither was returned to the Tribunal.
4The respondent still did not file a Response. The Tribunal issued an Interim Decision dated June 23, 2010 (2010 HRTO 1408) (“the June Interim Decision”), and at paras. 7 and 8 stated:
It has now been more than one month since the Response and accompanying explanation for the delay were due. No Response has been received from the respondent, despite having received notice of the Application and an Interim Decision regarding this matter. I am satisfied that the respondent has received notice of the Application and notice of the Tribunal’s Order directing it to file a Response. It appears that the respondent refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal orders that the respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding.
The Tribunal will proceed without the participation of the respondent and deems the respondent to have waived its right to participate pursuant to Rule 5.5(c) and further deems the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a). Before the Tribunal finally determines the Application, the applicant will be provided an opportunity to file any documents or materials she may wish the Tribunal to consider and to make oral submissions vial teleconference.
5A copy of the June Interim Decision sent to the respondent by courier and regular mail. Neither was returned to the Tribunal.
6A letter from the Tribunal’s Registrar, dated November 8, 2010, was sent to the parties by regular mail and courier confirming the determination that was made in the June Interim Decision and advising that an in-person hearing would be scheduled. The respondent did not return the correspondence.
7The Tribunal issued a Notice of Confirmation of Hearing on December 14, 2010 to the applicant, copying the respondent, scheduling the hearing for March 2, 2011 in London, Ontario. An email was sent to the parties on March 1, 2011 reminding them about the hearing as well as the time and the location.
8A letter dated December 21, 2010, was sent to the Tribunal (and received on December 24) by Adam Casey who identified himself as an employee of the respondent and stated that he was writing on behalf of John Krimpas, whom the applicant had identified as being the owner of the respondent. The letter states:
On Monday, December 20, I was asked to open and read a letter that had been mailed o the “country grill Attention John Krimpas”. Mr. Krimpas’s first language is Greek and his English isn’t very good, and in addition his sight is quite deteriorated because of his health and age he wouldn’t be able to decipher the meaning of the letter. If I hadn’t been working that afternoon and offered to read the letter and decipher it for him, he would still be in the dark as to the impending court date. On a daily basis, Mr. Krimpas receives a lot of mail, mostly bills but also a majority of junk mail. Mr. Krimpas assumed it was junk mail because it’s not something that he normally would get in the mail, and he wasn’t expecting it.
It’s not a perfect system that it he is working with however because of his limitations with his sight and understanding of English and his hectic schedule and the amount of junk mail that is received on a day to day basis he must have passed off previous letters perhaps to [sic] quickly as junk mail, the letter was explaining that there is a set court date in London, Ont.
Because of his disabilities, Mr. Krimpas asked that I call on his behalf to inquire about moving the court appearance to perhaps somewhere closer to his home. When I called I was informed that he wasn’t even supposed to receive the letter because there had been no response to previous letters and as a consequence there was a ruling that he wasn’t going to be able to participate in the hearing.
Mr. Krimpas absolutely wants to participate and it is his right to participate if he had been aware of the situation he would have promptly responded. In light of the situation and with no attempt made to contact him by phone or in person. Mr. Krimpas should be allowed to participate, as this is what he wants and rightfully should be given the opportunity. Please, any further contact needs to be done over the phone with Mr. Krimpas personally.
9In an Interim Decision, dated January 14, 2011 (“the January 2011 Interim Decision”), notwithstanding the May and June Interim Decisions and the Tribunal noting that the respondent had not previously responded to the Tribunal’s communications, the Tribunal gave the respondent five days to file its Response, copies of all relevant documentation and witness information, as well as additional information upon which it relied to explain why it did not previously file a Response. Prior to the hearing date, the respondent filed a Response with the Tribunal, but did not provide further information or documentation with the Tribunal as had been directed. At the hearing, as set out below, the applicant stated that she had not received a copy of the Response.
The Hearing
10On March 2, 2011, at 10:00 am, the time the hearing was scheduled to commence, the applicant had arrived, but the respondent had not. In accordance with its standard practice of adjourning the hearing for 30 minutes if a party is not present at the beginning of a hearing, the Tribunal adjourned the hearing until 10:30 am. At 10:35 am the Tribunal commenced the hearing in the respondent’s absence as the respondent did not attend. The applicant advised that she had not received a copy of the Response from the respondent and the Tribunal provided her with a copy and gave her time to read the Response. The hearing concluded later that morning.
11The applicant testified that she commenced working for the respondent as a waitress in May 2009. She made $8.25 per hour, not including her tips. She was pregnant when she commenced working, but the respondent did not know about her pregnancy until several weeks after her employment started. Her due date was approximately January 20, 2010.
12The applicant worked five days per week, from Wednesday to Sunday, working approximately 8 hours per shift. At some point in November 2009, the applicant pulled a muscle in her back. The respondent’s owner, John Krimpas, wanted to terminate her. The applicant told him that she wanted to see her doctor to see if she could continue working and that she could not be terminated because of a pulled muscle. Mr. Krimpas told her that instead her shifts would be reduced from five to three per week, the hours reduced to six per shift and she would not be scheduled to work weekends. She alleges this constitutes a reprisal under the Code. She further objected to this change by raising the issue with Jimmy Krimpas, Mr. Krimpas’ son, who also worked in the restaurant, and Trudy Pattison, head server, and told them that her hours could not be reduced because she was pregnant. The applicant was forced to accept the reduction in hours so that she would have enough hours to qualify for pregnancy and parental benefits under the Employment Insurance Act, S.C. 1996, c. 23, as amended.
13She received a note from her doctor, dated December 8, 2009, which stated that she was able to continue working through her pregnancy.
14On or about December 4, 2009, the applicant’s sister, who also worked for the respondent, quit. The applicant’s sister had had a disagreement with George Krimpas, another son of the restaurant’s owner, who worked in the business. The applicant went into the restaurant to advise that someone would need to fill in for her sister’s shifts, and that night she received a call suspending her for three days. She was told that Mr. Krimpas told her not to worry because everything would be fine on Wednesday, when she was next scheduled to work. She told the caller that her sister quitting had nothing to do with her.
15On December 8, 2009, the applicant received a call from the owner, Mr. Krimpas, who asked how she and the baby were. She told him that she was medically cleared to continue to work during her pregnancy. Mr. Krimpas told her that it did not matter that she had a note, she was “too big” to do her job, and that she was terminated. The applicant told Mr. Krimpas that she could not be terminated because of her pregnancy or her sister, but he upheld the termination.
16The applicant immediately contacted the Ontario Labour Relations Board (“OLRB”) and explained what happened. She testified that the woman to whom she spoke told her she had a case with the OLRB and with the Tribunal. The applicant filed applications under both the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“the ESA”), and the Code.
17The applicant testified that subsequent to her termination, she collected Employment Insurance (“EI”) benefits from December 6, 2010. She was forced to commence benefits early, more than a month before her baby was born, which in turn meant that they ended earlier. She testified about the impact of being terminated before Christmas while 8 months’ pregnant, with no income and being forced to rely upon her husband’s salary. The applicant and her husband, relying upon one salary, had financial difficulties and had to move in with the applicant’s parents. She stated that she did not feel very good about herself when she was told, at 8 months of pregnancy, that she was “too big to do the job”.
18The officer appointed under the ESA (“the ESO”) issued a decision in June or July 2010, finding that the respondent violated the ESA when it terminated the applicant and reduced her shifts from 5 to 3 per week, and ordering various financial remedies, including loss of wages from the date her shifts were reduced to three per week, tips, and vacation pay. The applicant testified that the respondent has not paid the amounts set out in the ESO’s decision and the matter has been referred to a collection agency. The applicant did not have a copy of the decision with her, but stated that she could send it to the Tribunal. Further to a Case Assessment Direction dated March 7, 2011, the applicant provided the Tribunal with a copy shortly after the hearing date as well as submissions setting out why her Application could proceed in light of the ESO’s decision. The applicant submitted that the ESO decision did not address “the stress, the pain and suffering, the embarrassment, and quite frankly the discrimination that I had to endure from what happened”, and “I feel that this Application should be based more so on the discrimination than the lost wages because that is what the intention of this whole thing [the Application] was”.
19In her Application, the applicant sought $5,000 as a financial remedy. At the hearing, the applicant sought to increase this amount to $10,000 or $15,000, reflecting amounts which the Tribunal had awarded in other pregnancy cases. The applicant found other employment, with which she was happy, in the service industry after coming off EI benefits.
20In addition to a financial remedy, the applicant requested that the Tribunal order Mr. Krimpas and his sons (Jimmy and George) to receive training on how to run a business professionally and how to comply with labour laws.
21Several hours after the hearing ended, and after this Vice-chair commenced a mediation with other parties that started at 2:00 pm, several individuals representing the respondent attended the hearing location to participate in the hearing. It was explained to them that the hearing had been scheduled for 10:00 am, and had proceeded in their absence. The respondent has not subsequently contacted the Tribunal.
The Response
22In the June Interim Decision, the Tribunal deemed the respondent to have accepted all the allegations in the Application because of its failure to file a Response. In the January 2011 Interim Decision, and notwithstanding the June Interim Decision, the Tribunal gave the respondent five days to file its Response along with information explaining why the Response was not previously filed.
23A Response, dated January 24, 2011, was received by the Tribunal on January 31, 2011. The Response essentially consists of a letter written by Diane Ritchie, which states:
Reasons for Amanda Bickells [sic] dismissal.
Duties of her service was not up to par. Being not able to carry and heavy plates to her tables, and help in running team members food as well.
Complaining of pains and leaving work early, calling in sick with no doctors [sic] note.
Concerns of about safety for her and her new unborn child.
This had nothing to do with her being pregnant because she was aloud [sic] to work up to her 8th month. It all had to do with safety, for all in the work place of the country grill [sic].
We all felt (staff) that it was time to cut short her hours and then to let her go 2 wks earlier then planned because of safety reasons.
24While a Statement of Delivery indicated that the Response was mailed to the applicant by the respondent on December 26, 2010, the applicant advised the Tribunal at the hearing that she had not received it and the Tribunal provided a copy to her. After reading the Response, which essentially consists of a letter written by a Diane Ritchie, the applicant advised that Ms. Ritchie commenced employment a couple of weeks before the applicant was terminated and that they never worked a shift together. The applicant also advised that she did not know Adam Casey, the individual who sent a letter to the Tribunal dated December 21, 2010, and that he was not an employee when she was employed.
25The Tribunal does not accept the Response that was filed. It was filed after the June Interim Decision in which the Tribunal deemed the respondent to have accepted all the allegations in the Application. The Tribunal notes that date of the Response, and the date of Ms. Ritchie’s letter which is appended to the Response, are dated January 24, 2011, more than a month after the date identified in the respondent’s Statement of Delivery. The Response was filed beyond the five day period set by the Tribunal in its January 2011 Interim Decision and does not contain any new information about why there was a delay in filing a Response beyond the information already provided in the December 21, 2010 letter.
26Accordingly, the Tribunal deems the respondent to have accepted all the allegations contained in the Application and will not consider the Response that was filed. Even if it did consider the Response, it notes that based upon Ms. Ritchie’s letter, the respondent admitted that the applicant’s pregnancy led to her hours and shifts being reduced as well as her subsequent termination.
Analysis
27For the reasons set out below, the Application is upheld.
28Section 5(1) of the Code provides:
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.
29Section 8 provides:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.
30Section 10(2) provides:
10(2) The right to equal treatment with discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
31Despite the hearing proceeding without the respondent, the applicant still bears the onus of proving her allegations. Applications under the Code are decided on a balance of probabilities. The applicant must show that it is more probable than not that the respondent discriminated against her because she was pregnant.
32I have accepted the applicant’s evidence and have determined that the reduction in the applicant’s shifts and hours and her termination were as a result of her pregnancy. I also find that the applicant was subjected to reprisal when she objected when the changes to her shifts and hours was made and then to her status as an employee when she advised the respondent that such changes were contrary to legislation.
Remedies
33The Tribunal’s remedial powers are set out in section 45.2 of the Code:
45.2 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, feeling 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.
Injury to Dignity, Feelings and Self-respect
34Section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect. In considering this question, I have found helpful the views expressed by the Associate Chair in Arunchalam v. Best Buy, 2010 HRTO 1880, at paras. 52 to 55, set out below:
I turn now to the relevant factors in determining the damages in a particular case. The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
These principles are not intended to comment on how the Tribunal would deal with a case where medical evidence shows an extreme degree of suffering in comparison to the nature of the event, a situation which I leave for another day.
35The ESO determined that the respondent violated section 74 of the ESA, stating “… I find the employer in violation of section 74 of the Employment Standards Act [sic]. Claimant was terminated because she refused to start her pregnancy leave when the employer wanted her to”. The ESO awarded the applicant loss of wages from the date of her termination to the date upon which she would have commenced pregnancy leave had she not been terminated.
36Section 45.1 of the Code permits the Tribunal, at its discretion, to dismiss all or part of an application that has been appropriately decided in another proceeding. The purpose of section 45.1 of the Code is to avoid the duplication of proceedings and the re-litigation of issues that have been appropriately dealt with elsewhere. The Tribunal has stated that the onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the substance of the Application. See Vonella v. Blake Jarrett, 2011 HRTO 113 at para. 63.
37In this case, I decline to exercise my discretion to dismiss all or part of the Application despite the ESO’s decision. There is no party that is seeking to rely upon section 45.1. In the alternative, I do not find that the ESO gave any consideration to the Code and certainly no consideration was given to the applicant’s claim that her shifts and hours were reduced before being terminated. I will address the impact of the ESO’s award in the remedies section below.
38While the applicant objected when the respondent reduced her shifts and hours and removed the weekend shifts from her, she testified that she felt that she had no choice but to accept those changes because she was required to continue to work in order to have enough qualifying hours for EI benefits. She raised concerns about the changes to her shifts and hours with Mr. Krimpas’ son, Jimmy, stating that they could not be reduced because the respondent felt she could not do her job due to her pregnancy. She testified that she did not feel very good about herself, because of her pregnancy, when the respondent terminated her. As a result of the loss of her job, shortly before Christmas, she and her husband lived on one salary until financial difficulties forced them to move in with his parents.
39The applicant was required to commence her EI pregnancy leave benefits more than a month earlier than she planned which correspondingly meant that she had to end her EI leave earlier than she planned. She testified that she could have performed her job, as evidenced by her doctor’s note, but that the respondent did not give her a chance to work until her due date. The applicant experienced discrimination at a time when she was particularly vulnerable, being eight months’ pregnant.
40I accept that the applicant experienced injury to her dignity, feelings and self-respect as a result of having her shifts changed and reduced and subsequently being terminated while eight months’ pregnant. In this day and age it is still surprising to hear that a pregnant employee, who has medical documentation supporting that she can work the duration of her pregnancy, is being subjected to unilaterally imposed changes to her employment in the form of reduced shifts and hours, and is also terminated for no other reason but for her pregnancy.
41The Tribunal has decided only a few cases in which it has been found that an employee’s employment was terminated because of pregnancy contrary to the Code. In some of those cases, pregnancy was found to be the only reason for the termination. See Maciel v. Fashion Coiffeurs, 2009 HRTO 1804, and Guay v. 1481979 Ontario, 2010 HRTO 1563. In other cases, pregnancy was found to be a factor in the reasons for the termination. See Osvald v. Videocomm Technologies, 2010 HRTO 770 and Charbonneau v. Atelier Salon & Spa, 2010 HRTO 1736.
42In this case, I have determined it appropriate to award the applicant $15,000.00 as compensation for the Code violations I have found.
Loss of Wages
43The applicant testified that in November 2009 her shifts were reduced from five to three per week, and the hours of the shifts also decreased. She commenced EI benefits which became effective the date of her termination. Her EI benefits commenced more than a month before her due date and she planned to work through her pregnancy to her due date on January 20, 2010. Her EI benefits ceased earlier as a result of taking them earlier. The applicant, as of the date of the hearing, was employed in other employment.
44On the Application form, the applicant sought loss of wages from the date of termination until her due date. At the hearing, the applicant did not make submissions addressing her loss of wages from either the date that her shifts and the hours of her shifts were reduced or from her termination date.
45I decline to award loss of wages in the circumstances of this case. Neither the applicant’s evidence nor her Application was specific about the date that the reduction in shifts and hours took place. I decline to order any loss of wages following her termination, noting that the ESO awarded loss of wages from the date of termination to the date the applicant planned to stop working.
Public Interest Remedies
46In the circumstances of this case and in order to promote future human rights compliance, it is important for the respondent to have a better understanding of rights and responsibilities provided by the Code. Accordingly, I find it appropriate to require the respondent, including Mr. Krimpas and any family members who work or provide services to the respondent, and the respondent’s management team, to take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca
Order
47The Tribunal orders:
The respondent is required to pay to the applicant $15,000.00 as compensation for injury to dignity, feelings and self-respect;
The respondent is required to make this payment to the applicant within 45 days of the date of this Decision. If the payment is not made 45 days from the date of this Decision, the respondent shall pay post-judgment interest at the rate of 3%, in accordance with the Courts of Justice Act, on any amount not paid; and,
The respondent, including any Krimpas family members who work or provide services to the respondent, and the respondent’s management team are required to take the eLearning module “Human Rights 101”, found on the Ontario Human Rights Commission’s website (www.ohrc.on.ca) within 30 days of the date of this Decision.
Dated at Toronto, this 14thth day of July, 2011.
“Signed By”
Alison Renton
Vice-chair