Ruby Kakan v. Voysus Group Inc., 2012 HRTO 1687

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruby Kakan Applicant

-and-

Voysus Group Inc. Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: September 7, 2012

Citation: 2012 HRTO 1687

Indexed as: Kakan v. Voysus Group Inc.

WRITTEN SUBMISSIONS

Ruby Kakan, Applicant ) Richard Miller, Counsel

Voysus Group Inc., ) Kashif Raza, Human Resources Respondent ) Business Partner

1This Interim Decision addresses the applicant’s request for the production of documents from the respondent.

2The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on January 26, 2011. The Application alleges discrimination in employment on the basis of sex.

3The applicant was hired by the respondent in November, 2009. The applicant was hired to work as a telephone sales associate in a call centre. She was responsible for selling services to new and existing customers of XM Radio.

4The applicant underwent a three day training program and began her regular duties on November 16, 2009. The Application alleges that the applicant told the respondent’s Director of Operations that she was pregnant during her shift on November 16, 2012 and that this was the first time she informed the respondent that she was pregnant. The applicant’s employment was terminated during her next shift on November 17, 2009. The Application alleges that the respondent’s decision to terminate the applicant’s employment was based, in some measure, on her being pregnant.

5The respondent submits that the applicant’s employment was terminated for poor performance including a low percentage of “up-sales”, a key requirement for sales associates. The respondent submits that associates’ sales performances are closely monitored and over 20% of persons hired do not make it through the initial training.

6On August 13, 2012 the applicant filed a Request for an Order during Proceedings (“RFOP”) seeking the production of a range of documents from the respondent. The respondent opposed this request in an email filed on August 15, 2012.

THE APPLICANT’S REQUEST FOR DOCUMENTS FROM THE RESPONDENT

The Requested Documents

7The applicant identifies seven categories of documents in her RFOP that she is seeking from the respondent. They are:

1. All documents regarding the hiring of the applicant;

2. All documents including reports regarding sales performance for all the employees hired from the applicant’s trainees class for the month of November 2009, including sales and up-sales figures and statistics;

3. All documents (including reports) regarding sales performances for all employees working in the XM Radio Program during the month of November 2009, including sales and “up sales” figures and statistics. This documentation should include copies of reports sent to XM Radio detailing sales figures and totals within the program. The applicant submits that information provided to XM Radio that was not relevant to performance, sales and up-sales figures could be redacted;

4. A list of all employees hired in 2009 as telephone sales associates in the XM Radio Program who were employed for two months or more including their date of hire and their sales performance figures from their first day on the job until a year later.

5. All documentation including policies and procedures pertaining to the XM Radio program performance benchmarks and target guidelines relating to sales, up-sales and general performance that were in place in 2009;

6. All policies and procedures regarding or relating to discipline, progressive discipline and termination of employment that were in force in 2009;

7. Any and all written correspondence including emails pertaining to discussions by or between respondent managers and/or employees regarding the applicant including but not limited to her hiring, performance and termination of her employment.

Submissions

8The applicant submits that the documents she is requesting are arguably relevant and as such the respondent has a legal obligation to disclose them. The applicant submits that the respondent’s claim that she had poor sales figures is a pretext for her dismissal and that this may be revealed by a comparison of her performance to the performance of other employees.

9The applicant submits that documents that show sales figures for newly hired and existing employees would allow her to test and probe the respondent’s claims of poor performance and to present her case. The applicant submits that sales data for both those hired in November 2009 and more longstanding employees (defined by the applicant as hired in 2009 and who were employed for more than two months) is necessary in order for her to have a reliable and sizable pool of employees to compare and evaluate her sales performance while not being overly broad.

10The applicant submits that documents related to the respondent’s policies for sales guidelines and benchmarks are arguably relevant as they would potentially indicate whether the applicant was singled out for disproportionate treatment or fell below an established performance benchmark, as claimed by the respondent.

11The applicant submits that written correspondence exchanged between respondent staff in relation to the applicant’s hiring performance and dismissal would be arguably relevant as it could reveal the deliberations and issues considered by the respondent when it decided to fire the applicant.

12The respondent submits that the applicant’s request is too broad and beyond the scope of the hearing. It submits that requesting information about others hired in 2009 who worked for more than two months and would have been working in November 2009 is too broad, noting that it has already provided performance related information for those trainees who were hired with the applicant in November 2009.

Decision

13The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal. Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 at paragraph 38.

14The applicant’s request is granted in full. In my view, the applicant has shown that there is a nexus, a connection, between the documents she has requested and the allegations she has raised in the Application. I accept the applicant’s principle contention that documents that would help with a comparative analysis of the applicant’s performance with the performance of other new and more established associates is arguably relevant. I accept that asking for documents related to the sales performances for employees hired in 2009 and those who were employed for over two months is not overly broad and provides a reasonable pool of employees’ sales records to be used to compare the applicant’s performance. I find that documents that relate to the respondent’s policies and practices regarding sales performance and benchmarks are arguably relevant as are emails and other correspondence exchanged between staff in relation to the applicant and her performance with the respondent.

15The respondent has until Friday September 14, 2012, to provide this information to the applicant and to the Tribunal.

THE APPLICANT’S REQUEST FOR WITNESS INFORMATION

16The applicant requests that the Tribunal order the respondent to produce the last known address of Amanda Smith the employee/manager who hired the applicant and who carried out the termination of her employment. The respondent did not address this request in its August 15, 2012 email to the Tribunal.

Decision

I am satisfied that Amanda Smith is likely to have arguably relevant information about the applicant’s employment with the respondent including information related to the termination of her employment. Accordingly the respondent is directed to provide the latest information it has in its control regarding Amanda Smith’s contact information so that the applicant may call her as a witness if she wishes to. The respondent is directed to provide this information to the applicant by Wednesday September 12, 2012.