Analiza Lue v. Pantorama Industries Inc., 2011 HRTO 2307

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Analiza Lue Applicant

-and-

Pantorama Industries Inc. Respondent

DECISION

Adjudicator: Jay Sengupta Date: December 23, 2011 Citation: 2011 HRTO 2307 Indexed as: Lue v. Pantorama Industries

APPEARANCES

Analiza Lue, Applicant ) Self-Represented Pantorama Industries Inc., Respondent ) No One Appearing

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in respect of employment on the basis of family status, contrary to the Code.

2The respondent company filed a response that contained the following text in section 9 (responding to the allegations):

The allegations of the Applicant are correct with respect to the number of shifts that she missed and the fact that she breached Company policy by having a third party call to advise that she would not be coming in. The Applicant never advised that either she or her children had H1N1 and if you examine the medical certificates that she produced that was never the diagnosis but it was stated that her children had "flu like symptoms" such as a fever.

When the Complainant was hired she was advised of the importance of arriving on time and working each of her scheduled shifts. She was further advised that if she was ill, she should call the Store at the first possible moment in order to give us time to replace her. There was never any discussion about taking time off if her children could not go to daycare.

We employ approximately six hundred employees and many of them have children. We do not discriminate against people because of their "family status", however, we expect our employees to make the necessary arrangements to ensure that they do not miss time off work to attend to their personal needs.

At the time the Complainant was dismissed she was still a probationary employee and as such was aware that she could be dismissed for any reason whatsoever. The Complainant worked for us for a period of approximately 5 weeks from September 28th, 2009 to November 13th, 2009.

We did not discriminate against the Complainant. She was dismissed because during her probationary period we found her to be unsuitable for employment with our Company, which was well within Respondent's rights.

3In addition to filing a Response, the respondent attended a mediation session held at the Tribunal, but failed to attend the hearing.

4The Confirmation of Hearing was sent to the parties on March 21, 2011. In it, the parties were advised that the hearing would commence at 9:30 a.m. on August 15, 2011, at 655 Bay Street, 14th Floor, in Toronto. The Notice was sent to the respondent at the address provided by it in the Response and was not returned.

5At the time and place set for the commencement of the hearing, the applicant was present. The respondent was not. I advised those present that the hearing would commence at 10:00 a.m. or when the respondent arrived, whichever occurred first. At 10:00 a.m., the respondent was still not present.

6There is no indication that the respondent did not receive notice of the hearing. I am satisfied that the respondent received timely and proper notice of the hearing. In the absence of the respondent and in the absence of any explanation for its failure to attend as required, I proceeded to hear the applicant’s case in the absence of the respondent. I heard from the applicant on her own behalf and from Joel Harbans, a former co-worker.

7For the reasons that follow, this Application is granted.

THE EVIDENCE

8The applicant testified that she is a sole support mother of four children. At the material time, her children were aged one, seven, eight and eleven years old.

9She was hired by the respondent company to work as a sales clerk in one of its retail stores. She began working for the respondent in late September 2009, and was told that as the assistant manager of the store was leaving, the manager would consider her for the position. Until then, she was told she would be given a lot of hours and he would assess her suitability for the job in the intervening period.

10On November 6, 2009, she asked her fiancé to call her employer to let them know that she could not work that day because her seven-year-old daughter had been admitted to the hospital with severe flu-like symptoms and had been diagnosed as having contracted the H1N1virus. Her daughter’s father was with her at the hospital and the applicant was at home because two of her other three children were also ill with similar symptoms and at home recovering.

11The applicant was not scheduled to work on the 7th of November. On the following day, November 8, 2009, she made arrangements for their father to take care of the three older children who were still sick, took her one-year-old son to the babysitter, and completed her shift at work.

12On the 9th of November, 2009, she made a similar arrangement and went to work for a 9:30 a.m. to 6 p.m. shift. She could not finish that shift because her babysitter called to let her know that her one-year-old son, the only one of the four children who was not already sick, was running a high fever. The applicant asked for permission to leave work so she could take her son to the doctor. After the doctor’s visit, she called her manager at work, told him the doctor had told her that her son was also ill, likely having contracted the H1N1 virus.

13On November 10, 2009, the applicant was not scheduled to work. She phoned her manager on that date and confirmed that her son had contracted the H1N1 virus, could not go to daycare and had to be isolated. She told him that she had asked her older children’s father to look after them for several days and that he could not take any more time off work. She explained that she had no option but to ask for the next two days off to look after the children who were now all sick, were not permitted to go to day care and needing care while they recuperated at home. She was told that she could take the time off and that the manager would find replacements to work the November 11th and 12th shifts.

14On November 13, 2009, the applicant came to work as scheduled to work her 1 p.m. to 9:30 p.m. shift. She checked her schedule for the balance of the week, saw that she was on the schedule as working on November 15, 16, 17 and 20, 2009, and began work. At about 4 p.m., she was called to the back room by the store manager who told her that because of her recent absences, the company felt that she was not reliable, and, therefore, not a suitable employee for the company. He told her he had checked with his supervisor, gave the applicant a termination letter and asked her to leave without completing her shift.

15The termination letter is short, signed by Anh Ta, Assistant Director of the respondent company’s Human Resources Department, and reads as follows:

It has come to our attention that you are not suitable for employment with our Company. In view of the forgoing, please be advised that your employment is terminated, effective immediately upon receipt of this letter. Your vacation pay and Record of Employment will be forwarded to you shortly.

16The applicant testified that she had not missed any other shifts other than those she took off to deal with her children’s illnesses. When she was asked to stay later on several occasions, even though her kids were waiting, she was flexible and stayed longer.

17The applicant said she was humiliated and upset that her manager did not tell her about the termination while she was still at home. She is upset because he let her work for three hours before telling her there was a problem. She is very upset because she was fired for the reasons given to her during the conversation with her manager.

18She believes strongly that she was let go because she took time off to take care of her children when they were ill and when she had no one else to look after them. The applicant testified that the store manager told her that “he was sorry; he did not have kids so he did not understand (presumably, what she was going through) but that he could not keep her on because he could not rely on her”.

19The applicant testified that losing her job had a serious impact on her. She did not want to rely on the government for income and was forced to do so after she was terminated. The job allowed her the opportunity to take care of herself and her children. She says she was also counting on the job to earn enough money to pay off her student loan and go to school again. The applicant says that she came to this country with her ex-husband and is otherwise alone in this country, other than her kids, as her marriage did not work out. She also wants to sponsor her mother and she needs to have a job to do that.

20After losing her job, she went to the Job Bank and looked for work for a couple of months. As she was having no luck in finding another job, she tried to go back to school. She took a test in March 2010 at George Brown College because she wants to be a probation officer. The college has suggested upgrading her English and she has started taking courses to do so.

21Her former co-worker, Joel Harbans, gave limited evidence but was able to confirm that on one occasion while he was working with the applicant, her daycare provider called to tell her that one of her children was very ill and he recalled that she had to make arrangements to leave to pick the child up.

THE LAW

22The relevant sections of the Code read as follows:

5(1). Every person has a right to equal treatment with respect to employment without discrimination because of… family status….

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10. A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

10(1) In Part I and in this Part,

“family status” means the status of being in a parent and child relationship;

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:

1. 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.

2. 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, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.

23There is no issue as to this being an Application concerning employment or the fact that the ground of family status is engaged.

24The respondent chose not to participate in the hearing and, therefore, has not introduced any evidence or argument in support of its position. The Response itself is not evidence but its contents outline the respondent’s position with respect to the allegations and support the applicant’s contention that she was terminated because she missed work.

25I am left therefore with the uncontested evidence of the applicant and her witness that she did not take any unscheduled time off work except on the occasions that her children were ill and she could not make other arrangements for their care. Furthermore, I also have uncontested evidence that the employer had not spoken to her about tardiness or missing shifts in the course of her employment; neither had she received any written reprimands to that effect or, indeed, for any other reason.

26There is also no evidence before me to counter the applicant’s account of her conversation with the manager of the store in which he clearly linked the decision to terminate her employment with the time she had taken off to tend to her sick children. No other reason was offered for the termination by the respondent during that conversation, and certainly, the termination letter is short on specifics and contains only a cryptic reference to the respondent’s view that the applicant is “not suitable for employment” with the company.

27I find, therefore, that the applicant has established that she experienced discrimination in respect of employment on the basis of her family status.

28I turn, therefore, to the question of remedy. In her Application, the applicant sought an Order for $20,000.00 in monetary compensation. During the course of the hearing, she provided evidence of the effect of the discriminatory conduct on her.

29Section 45.2 (1) of the Code provides that, in the event that a breach of the Code is established, the Tribunal may make the following orders:

1. 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.

2. 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, feelings and self-respect.

3. 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.

30The applicant testified that she visited the Job Bank for a number of months until she gave up and began considering re-enrollment in school. However, she was unclear about when she began and stopped looking for work and provided no concrete evidence of any actual job search activity during that time. Given the lack of such evidence, I am unable to make any order for lost wages.

31However, section 45.2(1) also provides authority for the Tribunal to order payment of monetary awards to compensate for intangible loss and suffering experienced because of a breach of the Code.

32The Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON. S.C.D.C.), held that the following are among the factors the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment. This last factor has been elaborated in other decisions as “seriousness, frequency and duration of the offensive treatment”; see for example Sanford v. Koop, 2005 HRTO 53.

33The impact of the discriminatory action on the individual applicant clearly has considerable weight in arriving at a compensatory order. However, the effect on the victim, while important, is not the only factor relevant to compensation for intangible loss. It is also appropriate to apply a degree of objectivity in evaluating the circumstances surrounding the violation of the Code; see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

34In this case, I accept on the basis of the applicant’s evidence that she experienced considerable frustration, loss of self-respect, dignity and confidence as a result not only of the termination for discriminatory reasons but also the manner in which the decision was communicated to her.

35In a number of Tribunal decisions, including H. v. M[…] Painting, 2009 HRTO 595, the Tribunal has accepted that the personal characteristics of a complainant (such as gender, status as a single mother and aboriginal ancestry in that Application) can combine to render them particularly vulnerable to the conduct of the respondent. In this case, the applicant, a single parent of four very young children, testified that she was trying to takes steps to become self sufficient, find a way to support herself and her children, pay off a student loan, get further education and ultimately sponsor her mother’s entry into Canada. Her personal circumstances rendered her particularly vulnerable to the respondent’s discriminatory conduct.

36In considering a termination of an employment relationship for reasons relating to family status in McDonald v. Mid-Huron Roofing, 2009 HRTO 1306, the Tribunal awarded the applicant in that case $20,000 in monetary compensation for intangible harm and an additional amount for loss of income.

37Taking into consideration the effects upon the applicant as she has described them as well as the objective considerations noted above, I award $20,000 in monetary compensation for the intangible harm caused by the infringement of the applicant’s rights under the Code.

38Prejudgment interest is awarded from the date of the Application, November 18, 2009, in accordance with s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended. The respondent shall have 45 days following the date of this Decision to make the payments described herein to the applicant, failing which post-judgment interest shall be payable in accordance with the rate established under the Courts of Justice Act.

ORDER

39The Tribunal makes the following orders:

a) The respondent shall pay $20,000 to the applicant as monetary compensation for a violation of the Code;

b) Prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, on the amount set out in (a) from November 18, 2009; and

c) Post-judgment interest in accordance with the Courts of Justice Act, supra, is ordered if the respondent fails to make the payment described in paragraph (a) above, following 45 days of the date of this Decision.