Dunn v. Edgewater Manor Restaurant, 2011 HRTO 1795

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natalie Dunn

Applicant

-and-

The Edgewater Manor Restaurant

Respondent

DECISION

Adjudicator: Ian R. Mackenzie

Date: October 4, 2011

Citation: 2011 HRTO 1795

Indexed as: Dunn v. Edgewater Manor Restaurant

APPEARANCES

Natalie Dunn, Applicant ) Self-represented

Edgewater Manor Restaurant, Respondent ) Peter Trajkovski, Representative

1Natalie Dunn filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of creed, sex (including sexual harassment) and sexual advances contrary to ss. 5, 7(2) and 7(3) of the Code. The Applicant alleged that her employment at the Edgewater Manor Restaurant (“Edgewater”) was terminated because of her sex and religious belief. The respondent alleged that the applicant’s employment was terminated for business reasons. The applicant did not pursue the allegations of sexual advances at the hearing. For the reasons set out in this decision, the Application is dismissed.

Preliminary issues

2Peter Trajkovski was named as a personal respondent in this Application. I issued a Case Assessment Direction (“CAD”) prior to the hearing. In the CAD I advised the parties that I would consider at the commencement of the hearing whether Mr. Trajkovski should remain as a personal respondent. Mr. Trajkovski stated that he was not an owner of the Edgewater. The business is owned by his father. The applicant stated that she did not believe this was true. The applicant stated that she had not been harassed by Mr. Trajkovski.

3At the hearing, I removed Mr. Trajkovski as a personal respondent, in accordance with the criteria set out in Persaud v. Toronto District School Board, 2008 HRTO 31. The title of proceedings has been amended accordingly. There was no issue between the parties that Mr. Trajkovski made the decision to terminate the applicant’s employment as part of his employment duties, and that Edgewater is alleged to be liable for any discrimination resulting from the termination of the applicant’s employment. Edgewater does not raise any issue as to its deemed or vicarious liability for Mr. Trajkovski’s alleged actions, and there was no issue as to Edgewater’s ability to respond to or remedy any alleged Code infringement. There was no remedy claimed against Mr. Trajkovski personally. In addition, there were no allegations of harassment against him personally.

4At the commencement of the hearing, the applicant requested that the second day of the hearing be postponed because her husband was not able to attend. She stated that her husband was with her for moral support. The respondent’s representative stated that he had arranged for witnesses for the respondent to be present on the second day. I denied the request for postponement. The applicant had sufficient notice of the hearing dates. The applicant’s husband was not representing her. The interests of an expeditious resolution of the Application prevailed over the applicant’s wish for moral support at the hearing. I note that the applicant’s husband did attend the second day of the hearing.

5Both the applicant and the respondent did not provide disclosure of documents or witness statements in advance of the hearing, as required by the Tribunal’s Rules of Procedure.

6The main witness for the applicant was herself and she relied on her statements made in her Application and Reply as her witness statement. I allowed the applicant’s husband to testify despite not providing a witness statement in advance of the hearing. The applicant’s husband testified about his limited involvement in this matter (receiving an envelope from the respondent). He did not testify about the contents of the envelope. There is no dispute that the applicant received the envelope from the respondent. I therefore find that his evidence is not relevant.

7At the start of the hearing, the respondent stated that it intended to call 12 witnesses. Mr. Trajkovski provided an oral summary of the evidence of each of the 12 witnesses he intended to call. He proposed to call five witnesses who would testify about his treatment of employees in general and women employees in particular with a previous employer. I reserved on the relevance of such testimony and ruled that one witness, in addition to the testimony of Mr. Trajkovski, was sufficient for this purpose.

8One former subordinate of Mr. Trajkovski testified that he treated all employees with respect at his former place of employment. The character evidence related to Mr. Trajkovski’s past experience as a manager with another employer was not relevant in the circumstances of this Application, given that I have concluded that the allegations of discrimination are not established on a balance of probabilities.

9During the hearing, the Record of Employment (“ROE”) issued by the respondent after the termination of employment was raised by the respondent as establishing the respondent’s reason for the termination of the applicant’s employment. The respondent did not have a copy of the ROE. I ruled that the respondent could provide that document after the hearing and the applicant would have an opportunity to respond. On June 21, 2011, the respondent sent a letter from his accountant setting out his unsuccessful efforts to obtain a copy of the ROE from the federal government. On June 28, 2011, the Tribunal asked the applicant to submit her response by July 14, 2011. The applicant filed no response.

10The letter terminating the applicant’s employment and the evidence of Mr. Trajkovski is sufficient to determine the reason given by the respondent for the termination of employment. I find that the ROE would not add anything to this evidence.

Summary of the evidence

11The Edgewater is a family-owned and operated restaurant. The applicant has been a restaurant server for many years. She started her employment at the Edgewater Restaurant at the end of June of 2008. The applicant self-identifies as a born-again Christian. She was employed as a server at the Edgewater from June of 2008 until February 14, 2009, when her employment was terminated.

12The applicant alleged that the male servers played poker and the winners of the poker game would often receive the right to choose shifts. She stated that she was not invited to join these poker games. Mr. Trajkovski is the manager of the Edgewater. He testified that shifts were not determined by poker games. James Shiels, a server at the Edgewater, testified that all employees were invited to attend the poker games and that the right to choose shifts was not part of the poker game.

13The applicant stated that she was the only female server at the Edgewater. The respondent denied this. One female employee testified about her position as a part-time bartender and testified that she was a server on occasion. The mother and daughter of the owner of the Edgewater also worked at the restaurant.

14The applicant testified about comments made in the workplace about her religion and comments of a sexual nature that she characterized as harassment. These comments included disparaging comments about Jesus and God and one reference to “getting naked”. Mr. Trajkovski testified that he was not aware of her concerns about comments made in the workplace. John Shiels testified that he did not know if he made the comment “getting naked”. The other witnesses called by the respondent did not deny that comments about the applicant’s creed were made, but were not asked questions about the comments in examination or cross-examined on the comments. The applicant testified that she did not tell Mr. Trajkovski about her concerns. Although she alleged that he heard some of the comments, she led no evidence to support this allegation.

15The respondent provided a letter from a customer dated May 4, 2011 outlining concerns about the service provided by the applicant. I reserved on the relevance of this document. Since the author of the letter was not called as a witness and it was authored over two years after the termination of employment, I give this letter no weight.

16The applicant links her termination of employment with a conflict she had with another server on the evening of February 10, 2009. The other server did not testify. She testified that the other server (a male) had worked for the family for many years and that he was known to be difficult to work with. She testified that the server yelled at her in front of customers and also questioned her on the number of times she went to the washroom. She confronted him and testified that it was the first time in her career that she “lost it”. She spoke to Mr. Trajkovski in his office, shortly after the altercation. She testified that he told her that she and the other server should work it out and that she should “suck it up” because the other server was older. Mr. Trajkovski has no recollection of making these comments.

17Mr. Trajkovski testified that after the applicant spoke to him about the other server, he spoke to the other server. Mr. Trajkovski told him that he could not speak to the applicant in that way. The other server told Mr. Trajkovski that he was sorry. After the customers had left, Mr. Trajkovski went to the restaurant floor after hearing loud noises. He testified that the applicant was very upset. The other server said that he could not work with the applicant. Mr. Trajkovski told them both that one of them would have to leave their employment if this behaviour continued. He testified that both servers were upset. The applicant disputes that Mr. Trajkovski spoke to both of them.

18Mr. Trajkovski testified that the decision to terminate the applicant’s employment was not related to the altercation with the other server.

19Mr. Trajkovski testified about the decline in sales in the post-Valentine’s Day period. He also submitted sales reports showing a decline in sales. He also testified that the scheduled hours of the remaining employees dropped in the period after Valentine’s Day. Two of the witnesses who worked at the Edgewater, Mr. Shiels and Denis Ibrahimagic, agreed that business was slower in the last two weeks of February and in March. Mr. Trajkovski also testified that no new employees were hired until November of 2009. He testified that he had to lay someone off because of the decline in sales. He testified that he determined the best choice to be the applicant, given her length of service, her performance and her skill set.

20The applicant testified that the last person hired at the restaurant was not selected for lay off. She disputes her selection for lay off and argues that she had more experience than one other employee who was not laid off. The respondent provided evidence that this employee was hired for his skills as a server and the prospect that he might convince customers of his former employer to come to the Edgewater. Mr. Trajkovski testified the fact that another employee was hired after the applicant was not a factor that he considered in making the decision to terminate her employment.

21On February 14, 2009, Mr. Trajkovski prepared a letter terminating the applicant’s employment. The letter was given to the applicant at the end of her shift on February 14, 2009, by Mr. Sheils. Mr. Sheils testified that he was not aware of the contents of the letter at the time. The letter stated that “as of today we will not need your services any more”. The letter also stated that she would be receiving one week’s pay in lieu of notice on the following Tuesday. The letter concluded: “We thank you for the time that you were with Edgewater Manor Restaurant and wish you continued success in the future”. Mr. Trajkovski testified that the reason given for termination on the ROE was a lay-off.

22The applicant alleged that the respondent was aware that she was attempting to become pregnant and alleges that her impending pregnancy was a factor in her termination of employment. She testified that it was common knowledge that she was trying to get pregnant. She also testified that she had a cordial relationship with Mr. Trajkovski and he once asked her if she was hoping to have a family. Michell Ristevski, the daughter of the owner of the Edgewater, was at the restaurant on occasion. She testified that she had discussions with the applicant about personal matters. She could not recall if she had any discussions with the applicant about trying to become pregnant. She also did not recall if she spoke to Mr. Trajkovski about an impending pregnancy. Mr. Trajkovski testified that he was not aware of an impending pregnancy.

Submissions

23The applicant submitted that her employment was terminated because she did not “fit in” with the culture of the restaurant. She made no submissions on the allegation that the respondent knew of her impending pregnancy. She submitted that she was not wanted at the restaurant because she was the only female server on staff; because she stood her ground; and because her values were threatening to others. She also stated that she believed she was discriminated against on the basis of gender because, although a male was hired after her, she was the one whose employment was terminated.

24The respondent denied the discrimination allegations. The respondent submitted that the applicant was not the only female employed by the restaurant. The respondent submitted that the applicant did not discuss with Mr. Trajkovski any problems that she was having at work or complain to him of any harassment or discrimination. The respondent stated that the decision to terminate the applicant’s employment was a business decision, based on her skill set, her performance and her length of service and was not because of any discriminatory reason.

Analysis and Decision

Allegations of Sexual and Religious Harassment and Sexual Advances

25The applicant has alleged discrimination in employment on the basis of creed and sex (including sexual harassment) and sexual advances. As noted above, she did not pursue the allegations of sexual advances at the hearing.

26The Code defines “harassment” as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome” (s. 10)

27The applicant testified that she did not raise her concerns about harassment on the basis of sex and creed with the respondent. She alleged in her Application that Mr. Trajkovski overheard some of the comments, but provided no evidence to support this allegation. She also testified that she had not been harassed by Mr. Trajkovski. In her Reply to the Response, the applicant stated that there was only one issue: “my wrongful dismissal based on the fact that I am a female and would not conform to their ‘Boys Club’”.

28I find that the applicant has not presented sufficient evidence to establish on a balance of probabilities harassment within the meaning of the Code. I accept that comments were made by other employees about her religion. The respondent was not made aware of these comments and did not therefore expressly deny that they were made. There was no evidence from other employees about the comments made in the workplace. Mr. Shiels testified in cross-examination the he did not know if he made the comment attributed to him.

29In order to constitute harassment under the Code, the evidentiary burden on the applicant is to demonstrate that the impugned behaviour was (i) a course of vexatious conduct or comment, (ii) by an employer or employer’s agent, (iii) unwelcome or ought reasonably to be known to be unwelcome and (iv) based on a protected ground under the Code. See Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.) and Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd. Inq.).

30The allegation of sexual harassment arises out of one comment made by Mr. Shiels. Mr. Shiels said that he did not know if he made the comment. If the comment was made, it was not a course of comment, but appears to be an isolated one. Although the Tribunal has recognized that the impugned behaviour does not have to be repetitive and that even a single remark can be a form of harassment, the alleged comment of “get naked” is not analogous to the type of egregious or virulent solitary remark or action that past decisions have held to constitute harassment under the Code: see, for example, Murchie v. JB’s Mongolian Grill, 2006 HRTO 33, and Romano v. 1577118 Ontario Inc., 2008 HRTO 9. While the comment may have been inappropriate for a workplace, I do not find that this comment constitutes harassment under the Code.

31The only evidence about comments by co-workers about the applicant’s religion (a protected ground under the Code) came from the applicant. I find, on a balance of probabilities, that the comments about the applicant’s creed were likely made. These comments did constitute a course of vexatious comment that was unwelcome or that reasonably ought to be known as unwelcome.

32None of the employees who made the offending comments were named as respondents. Under the Code, the employer has an obligation to take appropriate steps to address allegations of discrimination or harassment on a protected ground that are brought to its attention, even if the allegations ultimately turn out to be unsupported. In order for this obligation to apply, however, there must be evidence to support that an issue of discrimination or harassment under the Code was actually brought to the employer’s attention. This does not necessarily require an employee to use the terms “discrimination” or “harassment”, but management must be aware of circumstances from which they reasonably ought to know that a right under the Code is at issue.

33In this case, the applicant has admitted that she did not draw her concerns to the attention of her employer, through Mr. Trajkovski, the employer representative. While she alleges in her Application that Mr. Trajkovski heard some of the comments, she presented no evidence at the hearing to support that allegation. In addition, I note that her Reply appears to abandon her allegations of harassment when she states that the only issue is her gender and not conforming to “the boys club”. Accordingly, the allegations of sexual harassment, sexual advances, and religious harassment are dismissed.

Allegations of Termination of Employment Based on Gender and Creed

34The applicant has argued that since she was the only one whose employment was terminated, the reason must have been because she is a woman. She has also alleged that her impending pregnancy was a factor in her termination. The respondent has argued that her employment was terminated because of a slowdown in business and was a business decision based on her skill set, performance and length of service. Mr. Trajkovski stated that he was not aware of her impending pregnancy. The applicant suggested that the server hired after her (who was a male) should have been the one laid off, because she was hired before he was. The respondent stated that the male server hired after her was hired for, among other things, his potential to attract customers of his previous employer.

35For a finding of discrimination, the applicant bears the burden of proving that a protected ground such as sex and/or creed was a factor in the termination of her employment. To meet her burden, the applicant must establish, on a balance of probabilities, a connection between the termination of her employment and her sex and/or creed.

36The applicant has not met this burden. In her Application, the applicant alleged that her gender and her creed were factors in the termination of her employment. However, a mere assertion is not sufficient to meet an applicant’s burden. She provided no evidence to support her allegation. The applicant’s employment was terminated on a without cause basis by Edgewater. She was provided with pay in lieu of notice. As noted in Reece v. J.D. Griffin Centre, 2009 HRTO 843, generally employers are entitled to dismiss non-union employees without cause, at any time, for any reason or reasons, provided that none of the reasons are discriminatory and provided that the appropriate notice or pay in lieu is given (it is not the role of the Tribunal to determine if the pay in lieu of notice was appropriate). The burden is not on the respondent to show that it had non-discriminatory reasons for terminating the applicant’s employment. However, I note that the respondent showed a decline in sales at the Edgewater after mid-February and reached a conclusion about the suitability of the applicant for continued employment at Edgewater.

37The applicant submitted that her employment should not have been terminated because she was not the last person hired. This argument is based on the false assumption that seniority must be a factor in termination decisions in a non-unionized setting. In any event, the fact that the employment of a shorter service employee was not terminated does not prove that sex was a factor in the applicant’s termination of employment.

38The applicant contended that Mr. Trajkovski was aware of her impending pregnancy. The evidence of Ms. Ristevski was that she did not recall if she knew this or that she advised Mr. Trajkovski. Mr. Trajkovski denies that he knew of a planned pregnancy. The applicant did not tell Mr. Trajkovski of an impending pregnancy. There is no evidence to support the applicant’s contention that pregnancy was a factor in her termination of employment. Nor was there any evidence that the applicant’s creed was a factor in the termination of her employment.

39The applicant has not demonstrated that her sex or creed were factors in her termination of employment. Accordingly, the Application is dismissed.