Pilkey v. Guild Automotive Restorations Inc., 2012 HRTO 1522

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christina Pilkey

Applicant

-and-

Guild Automotive Restorations Inc. o/a The Guild of Automotive Restorers and Frank Morea

Respondents

DECISION

Adjudicator: Jennifer Scott Date: August 3, 2012 Citation: 2012 HRTO 1522 Indexed as: Pilkey v. Guild Automotive Restorations Inc.

APPEARANCES

Christina Pilkey, Applicant Kingsley Laurin, Counsel

Guild Automotive Restorations Inc. and Frank Morea, Respondents Self-Represented

Introduction

1The applicant alleges she was discriminated against during her employment on the basis of sex, disability and family status. The applicant also alleges her employment was terminated in reprisal for asserting her human rights. Most of the events complained of by the applicant occurred during the last six weeks of her employment. There is little doubt that it was the termination of her employment that led to the filing of this Application.

BACKGROUND

2The Application concerns the applicant’s employment at Guild Automotive Restorations Inc. (the “Guild”), an antique car restoration business. The Guild is owned by David Grainger (“Grainger”) and his spouse, Janice Stone (“Stone”).

3Grainger and Stone operate another business on the second floor of the Guild’s premises called Top Hat Media Productions, a television show that reports on the adult entertainment industry.

4In the summer of 2008, the Guild advertised for people skilled in mechanical, paint, body and fabrication work. The job ad indicated that unskilled and conscientious people would be considered for the position.

5The applicant applied for the job on August 20, 2008. She was self-taught and not formally trained as a body technician. She was not licensed.

6The applicant was interviewed for the job by the Guild’s Project Manager, Jack D’Innocenzo (“D’Innocenzo”). The applicant brought a binder of pictures showing the work that she had done. The applicant was hired for the job and commenced employment on September 8, 2008. The applicant was the only female technician in the workplace.

7From the outset of her employment, the Guild accommodated the applicant’s childcare responsibilities. The applicant had access to her children on Tuesdays and every other weekend by way of court order. The Guild permitted the applicant to leave work at 4:00 p.m. to pick up her children on the days that she had access to them. The regular hours of work were from 8:00 a.m. to 5:00 p.m.

8Frank Morea (“Morea”), the individual respondent, was a mechanic at the Guild at the time the applicant commenced her employment. He was promoted to the position of Parts Manager in February 2009. Morea did not have any supervisory responsibilities over the applicant.

9D’Innocenzo left the Guild the first week in September 2009. Paul Taylor (“Taylor”) became the General Manager and overlapped with D’Innocenzo for a short period of time. Although their job titles were different, their responsibilities were the same. Taylor supervised the applicant for approximately two months.

10Taylor terminated the applicant’s employment on October 30, 2009.

11The applicant has advanced seven distinct allegations of discrimination:

1. The applicant alleges her work was sabotaged by her male co-workers.

2. The applicant alleges she was disciplined for being late when her male co-workers were not similarly disciplined.

3. The applicant alleges she was threatened by Morea on October 6, 2009, because of her gender.

4. The applicant alleges the Guild failed to properly investigate her complaints of discrimination on October 6, 2009, and during a policy review on October 22, 2009.

5. The applicant alleges her childcare accommodation was removed during the policy review on October 22, 2009.

6. The applicant alleges she was disciplined for gender-based reasons on October 29, 2009.

7. The applicant alleges she was terminated in reprisal for raising her human rights.

12There is little evidence to support the applicant’s claim that she was discriminated against during her employment on the basis of sex, disability and family status. As such, the first five complaints are dismissed against the Guild and Morea. There is evidence to support the applicant’s claim that she was disciplined on October 29, 2009, for gender-related reasons and terminated on October 30, 2009, as a form of reprisal. These complaints are upheld against the Guild. These are the reasons for my decision.

General Workplace Environment

13The applicant gave evidence about the general work environment at the Guild. It was unclear whether this evidence was being called in an attempt to establish a poisoned work environment, to bolster her claims of discrimination or to establish a propensity on the part of the Guild to discriminate against women. In any case, the evidence was vague and lacking in sufficient detail to make it reliable. For example, the applicant testified that she wore a hand brace at work and “the guys” would comment “what happened to your hand – too many hand jobs”? Initially the applicant could not remember who made that comment: she later stated she believed it was Brad Velma, but was not certain.

14The applicant also testified that she believed the owners of the Guild were operating a pornography business on the second floor of the premises. She based her belief on the fact that women wearing jeans and riding boots went upstairs and that her co-worker Brad Velma (“Velma”) commented “I could bang that”. Another co-worker commented “Dave needs an Asian”. The applicant could not recall who made that comment. The applicant never saw the images on the computers that her co-workers were commenting on. The applicant stated these comments were made a couple of times by her co-workers.

15There is insufficient evidence to establish that Grainger and Stone were operating a pornography business at the Guild and if they were, whether it had any impact on the environment of the body shop. The applicant did not see any pornographic images in her workplace. The comments of her co-workers, mostly unnamed, do not substantiate an allegation of poisoned work environment. As a result, there is little that can be drawn from this evidence.

16The one undisputed fact in this case is the Guild is a predominately male workplace and the applicant was the only female technician at the time of her employment.

17I will now address the allegations of discrimination advanced by the applicant.

1. Sabotaging the Applicant’s Work

18The applicant testified that she was being intentionally set up to fail in the workplace. On one occasion, Brad Buenger (“Buenger”) changed the paint codes for primer and as a result, the paint used by the applicant was incorrect. On another occasion, the applicant did not know how to use a product called Por-15 and was criticized for her lack of knowledge by Morea. At another time, the applicant was painting a car brake handle that was supposed to be two shades of black with two different finishes: one with satin and one glossy. The applicant testified Morea told her it should not be so shiny. A fourth example occurred when the applicant was asked to spray the inside of an Alfa Romeo trunk. Morea advised the applicant to use an oil-based product. The applicant did not believe this was the correct product to use and called the supplier. The supplier confirmed that an oil-based product should not be used on the car.

19The applicant believed Morea was setting her up to fail because of her gender. She testified her problems with Morea intensified after D’Innocenzo left in September 2009.

20Many of the conflicts between the applicant and Morea occurred during D’Innocenzo’s time as manager. The applicant did not make a complaint to D’Innocenzo about Morea or Buenger.

21The applicant and D’Innocenzo had a close relationship during their employment at the Guild. They are domestic partners today. The Guild believes their romantic relationship started when they were both working at the Guild. D’Innocenzo and the applicant testified they became involved after they left the Guild. The timing of their intimate relationship is not relevant to the issues before me. The evidence is clear that, at the very least, they were good friends during their employment at the Guild. Whether they were involved sexually is not relevant or important.

22D’Innocenzo gave evidence that he believed Morea did not like the applicant because she was a woman working in a man’s world. He stated the applicant did not like Morea because he yelled and it brought back memories of childhood abuse that she had experienced.

23It is clear from the applicant’s evidence that she perceived she was being set up to fail by Morea because of her gender. She also believed Buenger intentionally changed the paint codes so she would use the wrong paint. While I do not doubt the sincerity of the applicant’s belief, three or four incidents over the course of approximately 13 months of employment do not indicate a pattern of conduct from which I can infer the applicant was being set up to fail. The applicant had a very close relationship with D’Innocenzo when he was manger and yet she did not make a formal complaint about Morea or Buenger. For his part, D’Innocenzo did not take any steps to investigate or discipline Morea even though he believed Morea was hostile towards the applicant because of her gender. Instead, D’Innocenzo, together with Grainger, promoted Morea to the position of Parts Manager.

24The applicant was not a licensed technician and was untrained in this work. It is clear from her evidence that she was anxious to succeed. It is quite possible she lacked confidence doing body work on very high-end cars. If problems occurred, she had a tendency to blame others. The applicant’s perception that she was intentionally being set up to fail ignores the possibility that the technical problems she was experiencing may have had more to do with her inexperience than with someone sabotaging her work. It also ignores the fact that there may have been legitimate differences of opinion regarding how the work should be done.

25The applicant and D’Innocenzo testified that Morea made two statements which reflected his bias against women to support the claim that he was hostile towards the applicant. One, he told D’Innocenzo the applicant should be home making babies and two, he told the applicant the reason she did not know how to use Por-15 was because she is a girl. Morea denied making these comments. Because of the conflict in the evidence, I must decide whose evidence is more convincing based on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at para. 11:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

26I found Morea to be a very credible witness. He gave his evidence in a very measured and balanced way. He owned the mistakes that he had made. The applicant’s evidence lacked perspective. The applicant sincerely believes the conflict she experienced in the workplace was due to her gender and that she played no role in the conflict. It is trite to say that conflict is never this one-sided.

27While the nature of the relationship between the applicant and D’Innocenzo during their employment at the Guild is not relevant to the issues before me, the fact that they are domestic partners today does raise an issue around their credibility. The comments they attribute to Morea are somewhat incredulous in nature. They seemingly came out of nowhere and there was little context to ground them. It may be that the applicant and D’Innocenzo felt comments of this nature were necessary to bolster the applicant’s case and as such, they may have exaggerated their evidence. The fact of the matter is that sexism is rarely manifested so overtly. Because of the relationship between the applicant and D’Innocenzo and the somewhat incredulous nature of the comments, I accept Morea’s denial and find the comments were not made by him.

28The applicant has failed to establish that her work was being sabotaged by her male co-workers because of her gender. This complaint is dismissed.

2. Discipline for Being Late

29D’Innocenzo left the Guild in early September and Taylor became General Manager.

30On September 9, 2009, Taylor issued a written warning to the applicant for being late and for not leaving a message on the company voice mail. The applicant advised Taylor that she had called in and left a message that she would be late. She believes Morea erased her phone message because the answering machine was in the parts department.

31The applicant believes that she was disciplined for something that was common behaviour in the workplace. The applicant testified that she observed other employees arriving late.

32The applicant was very upset about getting the warning. The warning was issued at 3:30. The applicant argued against the warning when she received it. She argued against it again at 3:45. She left work and returned that same day to contest the written warning for a third time.

33It is not in dispute that Taylor was a very different manager from D’Innocenzo. Taylor was more rigorous in his approach and supervised the workplace closely. The applicant testified that when D’Innocenzo was manager, there was no policy on lateness. In fact, there were no policies at all. The applicant stated D’Innocenzo did not care about when people arrived at work as long as they got their work done. At the time of the written warning, Taylor had been the General Manager for only a few weeks.

34Although somewhat unclear on the evidence, it appears Taylor began to supervise the workplace in early September 2009, before D’Innocenzo left. In reviewing the applicant’s timesheets for the period September 1, 2009 to September 9, 2009 (seven work days), the applicant was late on four work days. There is no evidence that other employees were late this many times during the first week of Taylor’s supervision.

35I find the applicant was disciplined by a more rigorous manager because she was late four out of seven work days. Her discipline was unrelated to her gender. This complaint is dismissed.

3. The Threat by Morea

36By the time Taylor took over as General Manger, the applicant’s relationship with Morea was clearly strained. On October 6, 2009, the applicant was in Taylor’s office when she saw Morea outside the office. The applicant testified that she got a chill and said to Taylor “that’s my bad aura”, referring to Morea. The applicant then returned to the body shop.

37Morea overheard the applicant’s comment and followed her to the body shop. The applicant testified Morea was visibly angry and swearing. He said he was sick of the applicant and would punch her in the face. The applicant testified that she started screaming and had flashbacks of her childhood abuse. The applicant complained to Taylor, who advised her to go home and write out a complaint.

38The next day, the applicant provided Taylor with a rough draft of her complaint. She asked Taylor to help her write a good copy because she had difficulty writing. Taylor helped the applicant write out the following complaint:

On October 06 2009 I was in the general managers office (Paul Taylor) speaking to Paul. I had a bad feeling as I saw Frank just outside the office, I turned away as I was approaching the office and said to myself “That’s my bad Ora”. I returned to my work station to continue my assigned work.

At 16:30 Hrs Brad B exited the body shop and immediately after Frank Morea entered. He approached my work space and began to yell at me. He said “I’m sick of you, I’ll punch your face in and I’m not afraid to do it”. He continued to yell, I stood up and to explained that I had been speaking to myself. I did not speak out, or against Frank in any way.

I feel as though I was threatened in the work place. I have had other bad experiences with Frank and “let them go”. It is my opinion that this issue should be addressed as Frank waited until the room was empty to personally attack me.

39Morea denied that he had threatened to punch the applicant’s face in. He stated he was angry and upset and spoke to the applicant in a raised voice. He told the applicant he was sick of her attitude and that he did not have to take it. Morea testified the applicant often made derogatory remarks under her breath and would then walk away. For example, the applicant frequently called him a “prick” under her breath. The applicant did not deny this.

40Taylor investigated the complaint on October 7, 2009. He spoke to Buenger who advised he had heard something, but was not sure what was said. Buenger stated he saw Morea leave the body room and the applicant came out behind him stating she had just been threatened. Taylor spoke to another employee who said he knew something was going on, but did not know what was said. Taylor spoke to a third employee who had not heard or seen anything. As a result of the investigation, Taylor was unable to verify the words exchanged between Morea and the applicant. Taylor spoke to Morea and the applicant about their professionalism in the workplace. He advised Morea to apologize to the applicant and asked the applicant to repress her emotions when upset.

41Although Taylor was unable to make a determination in the internal investigation, I am required to make a finding as to whether Morea threatened the applicant with physical violence and whether this threat related to her gender. This requires me to assess the credibility of the applicant and Morea and determine which version of events makes the most sense in the circumstances of the case.

42For the following reasons, I accept Morea’s evidence that he did not threaten to punch the applicant’s face in. Morea was very forthright in his admission that he was angry when he approached the applicant and spoke to her in a raised voice. Although there was conflict between Morea and the applicant, there was no evidence that Morea was previously physically aggressive with the applicant or anyone else in the workplace. There was evidence that he was sometimes difficult to get along with because he had his own way of doing things and he readily expressed his criticisms to co-workers.

43The applicant testified that when Morea approached her, he was upset and angry. His demeanour caused the applicant to have flashbacks to earlier childhood abuse she had experienced. The applicant testified she envisioned her step-father and his brother, the individuals who committed the earlier abuse. The applicant stated the incident brought back memories that had nothing to do with Morea.

44Based on the evidence before me, I cannot conclude Morea used the words “I will punch your face in”. Morea has a large stature and the applicant is very petite. He spoke to the applicant in a raised and angry voice. I accept that Morea’s manner was threatening to the applicant when he approached her in an aggressive manner. The issue, however, is whether the applicant’s gender influenced Morea’s conduct. I find that it did not.

45Morea was angry because of the applicant’s comment that he was her “bad aura”. He challenged the applicant, not because she is a woman, but because she made a comment that he took deep offence to. Morea did not have supervisory responsibilities over the applicant. Had Morea had supervisory responsibilities over the applicant, the mere fact that he approached her in a threatening way would have been deeply problematic. This complaint is dismissed.

4. The Failure to Investigate

46The applicant alleges the Guild failed to properly investigate her October 6, 2009 complaint against Morea and further complaints that were raised by her during a policy review on October 22, 2009.

47An employer has a duty to investigate complaints of discrimination. The investigation must be reasonable: it need not be perfect or correct. (See Harriott v. National Money Mart, 2010 HRTO 353).

48Taylor assisted the applicant in filing her October 6, 2009 complaint. He wrote out the complaint because she had difficulty doing so. Taylor interviewed all of the employees in the vicinity of the body shop to determine if they had witnessed anything. None of them were able to affirm that Morea had used the words attributed to him by the applicant. As a result, Taylor was unable to substantiate the applicant’s complaint. His conclusion in this regard was the same as mine. Taylor asked both employees to be professional to each other in the workplace; a reasonable request in light of their respective conduct. I find Taylor took all reasonable steps to address the applicant’s October 6, 2009 complaint.

49On October 22, 2009, Taylor introduced a workplace policy addressing, among other things, hours of work, discipline, harassment and discrimination. Taylor reviewed the policy with the applicant on the same day.

50During the policy review, the applicant made references to Morea. The applicant testified that she wrote “Frank” (Morea) by the section dealing with human rights. She said she did this because Grainger had not spoken to her about her complaint that Morea had threatened her. She also put “Frank” beside the section in the manual dealing with threats and marked “gender” in the harassment and discrimination section. Importantly, the applicant did not articulate new allegations of discrimination against Morea during the review.

51The applicant testified that during the policy review Taylor did not want to hear her complaints and wanted to start with a clean slate. Taylor testified he asked the applicant if she wanted to make a formal report and she said she did not because she and Morea had worked out their differences.

52There is no evidence the applicant made new allegations of discrimination against Morea during the policy review. Her reference to Morea related to the October 6 incident, which she believed was unresolved because Grainger had not addressed it. That fact that the applicant did not like the resolution of the complaint does not create a new complaint. There was no onus to reinvestigate the October 6 complaint. This complaint is dismissed.

5. The Removal of Childcare Accommodation

53The policy manual confirmed the hours of work at the Guild from 8:00 a.m. until 5:00 p.m. The applicant advised Taylor that she left early on Tuesdays and every other Friday to pick up her children. Taylor asked the applicant to speak to her former spouse to see if she could change the arrangement for Fridays. He agreed the applicant could continue to leave early on Tuesdays.

54Accommodation involves a dialogue between an employer and an employee. During that dialogue, questions will be asked and further inquiries will be made. Taylor asked the applicant to speak to her former spouse to see if they could work out a later pick-up time on alternate Fridays. That was a reasonable request. Although the applicant’s access was by way of court order, the terms were not always strictly followed. For example, Wednesdays were sometimes substituted for Tuesdays because of the children’s sports activities. Furthermore, the court order dealing with the applicant’s access was dated January 7, 2004. It is quite possible the children’s childcare needs could have changed significantly between January 2004 and October 2009. Taylor did not breach the employer’s duty to accommodate simply because he asked the applicant to make an inquiry of her former spouse.

55The applicant had access to her children on October 23, 2009, the day after the policy review. She did not leave work early that day. The applicant relies upon this fact to support her allegation that her childcare accommodation was removed.

56The applicant spoke to her former spouse who was upset at the possible change in the access arrangements for alternate Fridays. She subsequently communicated this to Taylor. Taylor stated he told the applicant she needed to maintain a consistent schedule of 8 to 5 when she did not need to leave early for her children and a consistent time when she did. The applicant was under the impression that her accommodation for alternate Fridays had been permanently removed. Taylor denied this. The next Friday the applicant had access to children was November 6, 2009. Because the applicant’s employment was terminated on October 30, it is unknown whether she would or would not have been permitted to leave early that day.

57I am unable to conclude the applicant’s childcare accommodation was removed based on the sole fact that the applicant did not leave early on October 23, 2009. When reviewing the applicant’s time sheets for the months of July, August and September, there were two alternate Fridays when the applicant had access to her children where she did not leave early. In these circumstances, a finding cannot be made that the applicant’s childcare accommodation was removed by the Guild. This complaint is dismissed.

6. Discipline on October 29, 2009

58On October 29, 2009, the applicant was working on a set of wooden wheels. Morea advised the applicant to take the spokes apart to work on them. The applicant tried to take apart the nut and bolts and the wheel began to lose its shape. Taylor spoke to the applicant about the amount of time she had spent on the task. The applicant asked Taylor if she could speak to Grainger and was told he had more important things to do. The applicant became frustrated and said “I can’t get nothin’ straight, not even my cunt hairs”. Taylor asked the applicant what she had said and the applicant told him the comment was not directed at him.

59After this incident, Taylor issued the following written warning:

Employee cannot control her anger when corrected or disciplined. Blames need for correction or discipline on the fact she is female. When challenged to justify time used on a job on October 28, 2009, she exited the GM’s office and returned to the body shop announcing obnoxiously that she was mistreated due to her “sex”. Employees words = “because I have a pussy and curly pubic hairs”.

60There is some confusion in the evidence as to the date of the written warning. The applicant believes the warning was issued on October 29, 2009, not on October 28, 2009, the date on the warning itself. The October 28, 2009 date is not consistent with the evidence. It is also evident from the original document that the date was changed. Although nothing really turns on this, I find the applicant received the written warning on October 29, not October 28, 2009.

61Taylor testified that when he challenged the applicant on the amount of time she had invested in the task, she responded by saying she was being treated that way because she had a “pussy”. Taylor testified further that he gave the written warning because of the applicant’s vulgar language, specifically her use of the word “pussy”. Taylor objected to that word because it referred to a body part.

62The applicant refused to sign the warning on October 29, 2009 because it was not accurate. She advised Taylor that she had used the word “cunt”, not “pussy”.

63Taylor revised the warning and provided it to the applicant the next day, October 30, 2009. He struck out the word “pussy” and marked it with an asterisk stating “cunt replaced as per employees request”. The applicant again refused to sign the written warning. The applicant advised Taylor she would not sign the warning because she believed it was unfair: everyone swore or used vulgar language in the workplace without any form of discipline.

64The evidence is clear that swearing was commonplace at the Guild. The applicant testified everyone called D’Innocenzo an “ass”. The applicant, Morea and Taylor all testified that many employees referred to Morea as a “prick”. The applicant testified that Buenger used the expressions “bite me” and “blow me” in the workplace. Taylor repeatedly used the word “fuck” or its derivatives at a staff meeting in September 2009.

65The applicant was correct when she perceived differential treatment when she was disciplined for swearing. Her male co-workers used language that referred to body parts or activities with body parts and there was no evidence to suggest that the male workers were disciplined. All of the words used – ass, prick and pussy (the word Taylor thought the applicant used when he disciplined her) – are commonly used today in a variety of contexts. The co-worker’s language was more troubling because it was directed at others, whereas the applicant’s language was directed at herself. The real difference between the applicant’s language and her co-worker’s language is the gender of the person who said it. Based on the evidence, there can be no other explanation for this discipline. As such, I find the applicant was disciplined for using the word “pussy” because she is a woman, not because her word referred to a body part.

7. Reprisal on October 30, 2009

66The applicant testified that Taylor became frustrated by her refusal to sign the written warning and told her she was done and to pack up her tools. Taylor testified he had warned the applicant that her refusal to sign the written warning could justify further discipline and at that point, the applicant said she might as well start packing her tools. Taylor agreed. Taylor testified it was all amicable. Taylor appeared to suggest that the applicant’s employment ended on the mutual agreement of both parties.

67There is no dispute that Taylor completed a form titled “Employee Last Day Information” dated October 30, 2009. On that form, Taylor completed a section called “reason for release” as follows:

Constant Insubordination, Refused to Sign Written Warning Dated Oct 28 2009. Multiple Warnings Issued

68I do not accept Taylor’s evidence that the applicant’s employment ended by mutual agreement. Had this been so, Taylor would not have given express reasons for termination. I find the applicant was terminated on October 30, 2009. The issue is whether the termination was in reprisal for claiming her human rights.

69The Code protection against reprisal is as follows:

8. 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 for so doing.

70To prove reprisal, an applicant must show a link between the invocation of rights and the retaliatory act being complained of (See Smith v. Menzies Chrysler, 2009 HRTO 1936, at para. 162).

71The termination notice states the applicant was terminated for “constant” insubordination and refusing to sign the written warning dated October 28, 2009, with multiple warnings issued.

72The Guild provided one example of a previous attempt to discipline the applicant for swearing. Grainger testified he had verbally warned the applicant for using the word “cunt” in the showroom. In the Response, Grainger stated the applicant screamed “You fucking cunt” in the public part of the showroom. He stated in the Response “As this kind of performance had now become very old I ignored her and did not try to comfort her”. This is not a verbal warning. Given the inconsistency between Grainger’s direct evidence and his statement in the Response, I find Grainger did not give the applicant a verbal warning for swearing.

73The applicant had no real disciplinary history. There were not multiple warnings issued. The only warning she received was for lateness. She had no history of insubordination as suggested by Taylor. The stated reasons for termination on the notice of termination are simply not borne out on the evidence.

74The applicant asserted her human rights numerous times during the last few weeks of her employment. It is clear that she believed the alleged threat by Morea on October 6, 2009, was gender-based. She complained verbally and in writing to her supervisor about that threat. She continued to assert her human rights during the policy review October 22, 2009. The applicant claimed she was being treated differently because of her sex when Taylor took her to task regarding the time she had spent on the wooden wheels on October 29, 2009. Finally, the applicant refused to sign the written warning on October 30, 2009, because she believed she was being singled out for discipline when her male co-workers were not similarly disciplined.

75When the applicant refused to sign the written warning, Taylor terminated her employment. The decision was sudden and made without consultation or reflection. It was a decision born out of frustration. Taylor had little time for the applicant’s views. This is apparent from the written warning where Taylor stated: “She exited the GM’s office and returned to the body shop announcing obnoxiously that she was mistreated due to her sex”.

76As is clear from this Decision, I do not accept that all of the applicant’s perceptions of gender-based treatment were accurate. I do, however, accept that she was treated differently when she was disciplined for swearing. The applicant is protected from reprisal regardless of whether the right she claims or enforces is ultimately substantiated, provided the claim is not made maliciously to obtain some sort of advantage (See Bertrand v. Primary Response, 2010 HRTO 186, at para. 59). There is no evidence the applicant asserted her rights for malicious purposes.

77I find that the applicant has established a link between her invocation of rights and the termination of her employment. She asserted her human rights on October 6, 22 and 29, 2009. The last time she asserted her rights was when she refused to sign the written warning on October 30, 2009. It was this act of perceived insubordination that became the catalyst for her termination. Her insubordination was her refusal to accept discipline that she believed was discriminatory. I therefore find the applicant was reprised against for claiming her human rights contrary to section 8 of the Code.

REMEDIES

78Having found that the Guild breached the Code when it terminated the applicant’s employment, I must decide the appropriate remedy in the circumstances. The Tribunal’s remedial jurisdiction is based on section 45.2 of the Code, which reads as follows:

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 ought to do to promote compliance with this Act.

79The applicant is seeking $50,000.00 in monetary compensation based on multiple violations of the Code, most of which have not been substantiated. The only complaint that has been substantiated is the termination of the applicant’s employment – the reprisal.

80In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), the court held tribunals should consider the following subjective factors when awarding general damages: humiliation, hurt feelings, the loss of self-respect, dignity and confidence of the applicant, the experience of victimization, vulnerability, and the seriousness of the offensive treatment (at para. 153). In addition to the subjective effects of discrimination on an applicant, the Tribunal may incorporate an objective component to the quantification of monetary compensation by considering the circumstances surrounding the discrimination (See Smith v. Menzies Chrysler, supra, at para. 172, and Arunachalam v. Best Buy, 2010 HRTO 1880).

81The applicant has experienced many challenges in her life. She is a survivor of childhood abuse at the hands of her step-father and his brother. She lives with certain physical disabilities and has difficulty reading and writing. She has not had an easy life. There is little doubt that these life experiences have impacted how she sees the world and the way she is treated in it. There is a reasonable explanation as to why she tends to blame others. She has been victimized for much of her life.

82Management at the Guild were well aware of the challenges facing the applicant. The applicant told Grainger, Stone and Taylor about her childhood abuse. She did so out of fear her abusers would come to the Guild. Her physical disabilities were disclosed in her employee emergency information form and Taylor was aware of her difficulties reading and writing.

83While I do not accept the applicant’s claim that she was subjected to differential treatment throughout her employment, I do accept that she was discriminated against when she was disciplined on October 29 and terminated on October 30, 2009. The termination had a significant impact on her. The Guild was “her dream job”, one that she has not been able to replace. As the applicant stated in her evidence: “I loved the Guild and I was really proud of being there”. The termination also affected the applicant’s relationship with her children. She was demoralized when her children found out that she had been fired.

84When considering the applicant’s history and the impact of termination, I find an award of $15,000.00 for the loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect, is an appropriate award.

85The applicant is seeking lost wages for a two-year period from the date of termination to the date she obtained her current employment. In the alternative, the applicant is seeking lost wages from October 30, 2009 to July 2011, the date she obtained employment with White Rabbit, employment that lasted for one month due to a workplace-related injury. In the further alternative, the applicant is seeking lost wages from the date of termination to October 10, 2010, the date she obtained some work with Karen Churchill, her previous employer before the Guild. In determining the quantum of lost wages, I must decide the wages that would have been earned but for the discriminatory termination.

86The applicant experienced many difficulties in the workplace following the departure of D’Innocenzo. She believed her work was being sabotaged by her co-workers, she struggled under the new management style of Taylor, felt unsupported by Grainger when he did not approach her about her complaint that she had been threatened, and her conflict with Morea intensified. All of this occurred in about six weeks. I find it is unlikely the applicant would have continued to work at the Guild for much longer. The pressures were too great and the applicant would have been terminated or quit for reasons unrelated to her gender. For this reason, I am awarding lost wages for the period of six months, the outer end of the range the applicant would have continued to work at the Guild. I accept the applicant had no earnings during this period and that she appropriately mitigated her loss.

ORDER

87In conclusion, the Tribunal orders that:

(a) Within 30 days of this Decision, the Guild shall pay the applicant $15,000.00 for the violation of the applicant’s inherent right to be free from discrimination;

(b) Within 30 days of this Decision, the Guild shall pay the applicant $15,680 in lost wages;

(c) The Guild shall pay the applicant pre-judgment interest from the date of the Application to the date of this Decision in accordance with s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43; and

(d) The Guild shall pay the applicant post-judgment interest in accordance with s. 129 of the Courts of Justice Act from the date that is 30 days from the date of this Decision.