HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jaime Kern

Applicant

-and-

Human Resources Capital Group Inc. o/a Spherino Workforce Architects and Krista Drake

Respondents

Decision

Adjudicator: David Muir

Date: January 20, 2011

Citation: 2011 HRTO 144

Indexed as: Kern v. Human Resources Capital Group

AppearanceS

Jaime Kern, Applicant ) Rodney Kern,

) Representative

Human Resources Capital Group Inc. )

o/a Spherino Workforce Architects ) Steve Williams,

and Krista Drake, Respondents ) Counsel

[1] This is an Application filed under section 53(5) 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 on the basis of sex (pregnancy) has been infringed by the respondents. The applicant alleges that the respondents engaged in a course of conduct intended to have her quit her employment because they learned she had become pregnant. The human rights complaint form indicates that the final incident of alleged discrimination occurred on Wednesday January 26, 2005.

[2] A hearing was held in accordance with the expectations set out in the Code and the Tribunal’s Rules of Procedure for Transitional Applications that these matters be adjudicated in a fair, just and expeditious manner. I heard from the applicant, the personal respondent, and Scott MacPherson, a former employee of the corporate respondent, as well as Bernie Vogel, a Vice-President of the corporate respondent. The parties agreed to file written submissions on a schedule set at the hearing.

[3] After hearing the evidence of the applicant, the respondents brought a motion to dismiss the Application on the basis that the evidence disclosed no prima facie case of discrimination on the ground of sex. After hearing the submissions and considering the matter, the Motion was rejected and the respondents called their evidence.

Background

[4] The applicant began her employment with the corporate respondent in January 2004 as an administrator/recruiter on-site at Sanmina, a client of the corporate respondent.

[5] The corporate respondent states that it provides “staffing solutions to its clients in the form of temporary contract and direct hire employees”. It is an employment agency. The applicant, the personal respondent, as well as Mr. MacPherson worked in the Vendor On Premise Division (“VIP division”) of the corporate respondent. This Division operated somewhat differently than some employment agencies in that it did not simply supply labour that was managed by the client but maintained an on site presence and engaged in some of the normal functions of an employer of its employees at the client’s site.

[6] At the time that the applicant was employed by the corporate respondent, it operated other Divisions which appeared to operate independently of each other with little or no cross over in staff flowing in part from the different nature of the business operated by the Divisions. For example, the Staffing Division operated more like a traditional employment agency in that it simply provided labour to clients as requested by them. Accordingly, employees of the corporate respondent in the Staffing Division were paid in part on the basis of commissions based on volumes of worker hours sold and filled.

[7] The applicant began her pregnancy and parental leave two months earlier than initially planned in February 2005 and requested that the employer find her a more suitable position for her return after a year’s leave. The applicant’s requests did not result in a new position begin offered to the applicant and she filed her complaint at the Ontario Human Rights Commission in April 2005. Although this is where the narrative of the complaint ends, the respondents never offered the applicant a more suitable position and the applicant resigned her employment in February 2006 rather than return to the position held immediately prior to her commencing the leave.

[8] The allegations in the human rights complaint (“the complaint”) which forms the subject matter of this Application concern a temporary lay-off beginning in late October 2004 which the applicant believes was initiated by her having just announced her pregnancy to the respondent employer. Related to this allegation is her contention that rather than being laid off she should have been promoted into the position of On-Premise Manager at Sanmina.

[9] The applicant also alleges that the position she was recalled to in January 2005 just before the end of the temporary lay-off was not suitable and was not offered to her in good faith – the applicant believes that the employer hoped that she would not take the position and as a result have no obligation to her upon her return from her anticipated parental leave. The position offered to the applicant was in Brampton and would involve a greatly increased commute from her home north of Oshawa, as opposed to other options that might have existed in the Durham region or Scarborough. Essentially, the claim is that the respondents, knowing the commute would be arduous for her, offered the applicant the position in Brampton in the hopes that she would quit and avoid whatever obligations it had to her.

[10] These are the issues raised by the complaint filed with the Commission in April 2005, many months before the applicant resigned her employment. I have considered the events following the filing of the complaint and considered whether the respondents appropriately dealt with her request for an opportunity closer to her home, it being acknowledged that this request was known to the respondents before the complaint was filed. I have also considered whether the applicant was justified in quitting her employment, her resignation being intimately linked, or not, to the events leading up the applicant’s determination that the recall to work in January 2005 was not made in good faith and in fact was an attempt to cause her to quit her employment.

[11] I also discuss, but make no finding of liability, a related issue that arose in the evidence related to the events during the applicant’s leave with respect to potentially discriminatory treatment of the applicant during her leave by, amongst other things, not providing her with information about potential employment opportunities during her leave. Although based on the evidence it is not likely that there was any consequence for any alleged failure on the respondents part in this regard, it is also clear that no such allegation is made in the complaint and therefore, given the provisions governing s.53(5) applications, I lack the jurisdiction to make a finding on this issue even if the evidence warranted it.

Analysis and Decision

[12] The Application is dismissed.

[13] For purposes of this Decision, the corporate respondent’s relationship with Sanmina began in late 2003 when Ms. B. was hired by Mr. MacPherson as On-site Manager reporting to the respondent Ms. Drake. It was the respondents’ evidence that they were putting 400 to 500 employees into Sanmina in the first half of 2004 and it was going to a very busy operation for them. Accordingly, it was determined that Ms. B. would need administrative support. The applicant was hired into what was described as a junior Administrator/Recruiter position to assist Ms. B. The position description does not state that the position is a junior position but it does appear to be a junior or entry level position and is largely clerical and administrative in nature. The applicant reported to Ms. B. who in turn reported to Ms Drake. Ms. Drake reported to