Chowdhury v. 2023628 Ontario Inc. o/a Quizno’s Sub, 2012 HRTO 1892

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jannatul Chowdhury

Applicant

-and-

2023628 Ontario Inc. o/a Quizno’s Sub and Gurpeet Mann

Respondents

DECISION

Adjudicator: Brian Cook

Date: October 4, 2012

Citation: 2012 HRTO 1892

Indexed as: Chowdury v. 2023628 Ontario Inc. o/a Quizno’s Sub

APPEARANCES

Jannatul Chowdhury, Applicant

Sharif Ahmed, Representative

2023628 Ontario Inc. and Gurpeet Mann, Respondents

Self-represented

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”), alleging discrimination in employment because of sex and pregnancy.

2The Application was heard on August 22, 2012. The applicant appeared and was represented by Sharif Ahmed, her husband. The personal respondent was present on her own behalf and on behalf of the corporate respondent. Jane Grose was present as a witness on behalf of the respondents. She is a manager of the respondents’ business.

BACKGROUND

3The personal respondent is the owner-operator of a sandwich shop franchise. There are typically six part-time employees, including the personal respondent. The applicant was employed from May 2010 to November 2010. Her employment was terminated by the personal respondent on or about November 14, 2012. The applicant alleges that the termination was related to her pregnancy and specifically that she had been told to stay off work by her doctor as a result of her pregnancy. The respondents maintain that the termination was related to performance issues and not to the applicant’s pregnancy.

4The applicant initially worked on two weekdays per week. After a few months she was asked to also work on Saturdays. While employees were regularly scheduled, the witnesses agreed that there were often changes to their work schedules. For example, employees might switch shifts with each other. Employees would be asked to fill in for someone who was on vacation or otherwise not available. Assigned shifts would also change as people left the employment and new people were hired.

5The applicant became pregnant in July 2010 and disclosed this to the personal respondent in September 2010 when asked by the personal respondent. The personal respondent testified that she suspected that the applicant was pregnant and that the applicant confirmed she was pregnant when the personal respondent asked. The personal respondent testified that she was happy for the applicant and congratulated her.

6The applicant testified that she experienced a number of pregnancy-related problems, including frequent vomiting and nausea and low back pain. She testified that these symptoms increased in severity as her pregnancy progressed.

7Jane Grose is a manager working at the respondents’ business. She worked with the applicant on Saturdays. She testified that she was not aware that the applicant was having any such symptoms related to her pregnancy.

8On Friday, November 5, 2010, the applicant was seen by Dr. Barnwell, her family doctor. Dr. Barnwell provided a note which reads in part as follows:

This letter is to confirm that Jannatul Entaha Chowdhury is an obstetrical patient being seen through my office. Due to medical illness Jannatul will stop working from the 12^th of November 2010 for the remainder of her pregnancy.

9The applicant testified that she told the personal respondent about the doctor’s note and that the personal respondent said she did not require a copy. The personal respondent testified that she did not know about the note and did not know that the applicant was medically unable to work.

10The applicant testified that she felt that she could not work after November 5, 2010. There is no dispute that the last day that the applicant worked in the store was October 31, 2010, which was a Sunday. There is also no dispute that she was scheduled to work on Saturday, November 13. While it is not disputed that the applicant did not work in the period from October 31 to November 13, none of the witnesses could remember why she did not work in this period. The personal respondent had a recollection that the applicant might have asked for vacation time but the applicant denied this. The applicant could not recall exactly what happened in the two week period or why she was not scheduled.

11At some time prior to November 13, 2010, the applicant sent a text message to Raman, the personal respondent’s daughter. It read as follows:

Hi raman its janna. I called the store but no one picked up. My doctor advised me to stop working immediately. I don’t think I can work this Saturday. I need the ROE. I told Mona [the personal respondent] about it. Since I didn’t work last two weeks can u put Oct 31 as my last day. I really appreciate all ur help.

12The date this text message was sent is not clear. From the content, it appears that it must have been sent before Saturday November 13^th, as that was the Saturday that the applicant was scheduled to work. It must have been sent after November 5, because that was when the applicant received the doctor’s note. It thus appears that the text message was sent at some time during the period November 5 to November 12.

13Raman responded to the text message with a text message that reads as follows:

Hi Janna, sorry for the late reply, if you can’t work Saturday, you need to find someone to replace you, that is ur responsibility. When I order the pay cheques next week, I will order ur ROE. Goodnight.

14The personal respondent testified that while Raman had worked in the store during the early months of the applicant’s employment, she had stopped working in the store by July 2010. The personal respondent testified that after July 2010, Raman had nothing to do with the business although the personal respondent used Raman’s computer for business purposes.

15The applicant agrees that Raman was not in the store after about July, 2010 but indicated that she understood that Raman was still involved in the business. She testified that in the time that Raman did work in the store, Raman was involved in employment-related issues including scheduling.

16The applicant testified that after she got Raman’s text she called one of the other employees and asked her to cover the Saturday November 13^th shift. She testified that she understood that this employee agreed to cover her shift for her. The respondents’ submit that the other employee did not agree to cover the shift. The respondents’ provided a letter from this employee with the Response. That letter indicates that the applicant called the employee on Friday November 12, 2010, but she told the applicant that she could not cover the shift.

17On November 13, 2010, the applicant did not report for work. Ms. Grose was in the store alone. Ms. Grose called the personal respondent to tell her that the applicant was not at work. The personal respondent testified that she had to come to the store herself to cover for the applicant. This was very inconvenient as she was entertaining guests, or preparing to entertain guests, at the time.

18The personal respondent terminated the applicant’s employment. The applicant testified that this occurred on Sunday November 14, 2010. The personal respondent could not recall how or when the termination was communicated.

19The personal respondent testified that she had no knowledge of the text message that the applicant sent to Raman. She does not dispute that the applicant sent the text to Raman and does not dispute that the reply text was sent by Raman. She testified that Raman did not tell her about the text, although she became aware of it some time later, and after the applicant’s employment had been terminated. The personal respondent indicated that Raman may have been away from home at the time.

20The personal respondent testified that if she had known about the applicant’s text message, she would not have terminated the applicant’s employment.

21The personal respondent testified that the applicant’s employment was terminated because the applicant failed to report for work on Saturday November 13, 2010 and failed to arrange for someone else to cover her shift. The personal respondent testified that in addition, there had been numerous performance issues during the time of the applicant’s employment. She testified that the applicant did not get along with the other employees and on one occasion the applicant left the oven on overnight. The personal respondent and Ms. Grose testified that the applicant was spoken to on several occasions about these issues although nothing was put in writing.

22The applicant testified that she was never spoken to about performance issues except in regard to the oven incident.

23The parties agree that the Record of Employment (ROE) that was issued to the applicant indicated that she had been fired.

24The applicant testified that she was very upset when the personal respondent told her she was fired. She said that she felt even more ill than she was already feeling because of the pregnancy-related symptoms. She indicated that this lasted for about a week.

25The applicant testified that she applied for employment insurance benefits after she received the ROE. Although there was some delay before the claim was processed, benefits were granted for the period after the termination. She received sick benefits and then maternity benefits. These ended after about one year. She then stayed home with her baby and has recently been looking for work.

THE LEGAL CONTEXT

26Section 5(1) of the Code provides as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

27Section 10(2) provides:

The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

ANALYSIS

28The first point to note about the facts of this case is that there was no direct financial consequence for the applicant as a result of the termination of her employment. The applicant was medically not able to work subsequent to November 12, 2010 and so would not have earned anything from employment after November 12 even if her employment had not been terminated. She continued to be medically unable to work until she started her maternity leave. She received employment insurance benefits for the period after November 13, 2010 (subject to the usual two-week waiting period and also to administrative delay in processing the application for employment insurance benefits). The applicant did not suggest that she would have returned to this employment after her maternity leave if her employment had not been terminated.

29The second important point is that the applicant sent a text message before November 13, 2010. It clearly indicated that the applicant had been advised by her doctor “to stop working immediately.” It also advised that the applicant felt she thought she would be unable to work on November 13.

30This text message was sent to the personal respondent’s daughter and not to the personal respondent. I accept that the applicant sent the text message to the daughter because she had previously communicated with the daughter about employment-related matters. In my view it is significant that the daughter responded to the applicant’s text and did not indicate that the applicant should have communicated with the personal respondent and should not have corresponded with the daughter. To the contrary, the daughter’s response responded directly to the applicant’s text. She told the applicant that it was the applicant’s responsibility to find someone to replace her on November 13 and advised that she would be issuing a ROE when she dealt with the paycheques the next week.

31The personal respondent testified that by November 2010 her daughter was no longer involved in the business. This is not consistent with the content of the daughter’s text. If the daughter was in fact no longer involved in the business, the personal respondent should have made that clear to her daughter.

32Since the applicant had previously communicated with the daughter about employment-related matters, and particularly because of the nature of the daughter’s response to the applicant’s text, it appears to me that the applicant reasonably understood that she had informed her employer that she was unable to work on November 12, 2010 and thereafter for medical reasons.

33It appears to me that the personal respondent terminated the applicant’s employment because she was annoyed by the fact that she had to go to the store on November 13 when she was not expecting to have to work and when she was preparing to entertain friends. While the personal respondent says that there were performance issues during the applicant’s employment, the reason for the termination was clearly that that the applicant did not appear for work on November 13, 2010, which caused inconvenience to the personal respondent. The personal respondent concedes that there is no documentation of any performance issues involving the applicant.

34The personal respondent testified that she was unaware of the text and would not have fired her if she had been aware. While I accept that this is true, it appears to me that if the personal respondent was not aware of the text, she ought to have been aware of it, given that Raman responded to the text in a way that logically indicated to the applicant that she had informed her employer of her situation. If the personal respondent was not aware of the text this was not the fault of the applicant.

35The issue in this human rights Application is not whether the personal respondent personally discriminated against the applicant, based on her personal knowledge of the circumstances. It is rather whether the applicant experienced discrimination related to her employment based on her sex and pregnancy. On the facts of this case, I find that the applicant did experience discrimination related to her employment when her employment was terminated because she did not report for work on November 13, 2010 when she had communicated to the employer that she would be unable to do so for medical reasons which were connected to her pregnancy.

REMEDY

36Section 45.2(1) of the Code provides as follows:

45.2 (1) 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.

37The applicant seeks monetary compensation and an order directing the respondent to engage in training to promote future compliance with the Code.

38I conclude that the applicant is entitled to a relatively small amount of monetary compensation. The amount of financial compensation in this case is limited primarily because the applicant experienced no loss of earnings as a result of the termination of her employment. As discussed earlier, she was medically unable to work after November 13, 2010 and received employment insurance benefits, which she would have received whether or not her employment was terminated. The applicant was not planning to return to the employment after her maternity leave ended.

39The monetary compensation that the applicant is entitled to is therefore compensation for the injury to dignity, feelings and self-respect that she experienced as a result of the termination of her employment. The applicant’s evidence is that she was upset as a result of the termination and this resulted in some increase in her physical symptoms. She testified that these effects lasted for about one week.

40I conclude that the applicant is entitled to monetary compensation in the amount of $2,000 for the injury to dignity, feelings and self-respect that she experienced as a result of the termination of her employment based on her pregnancy.

41The corporate respondent is directed to pay the applicant $2,000 in compensation for the injury to dignity, feelings and self-respect that the applicant experienced. If this amount is not paid to the applicant within thirty days of the date of this decision, the applicant is also entitled to interest under the Courts of Justice Act.

42In my view, the discrimination that occurred in this case occurred only because of the particular facts of the case. In my view, in these circumstances, an order directing the respondents to engage in training to ensure future compliance with the Code is not necessary.

ORDER

43The corporate respondent is directed to pay the applicant $2,000 in compensation for the injury to dignity, feelings and self-respect that the applicant experienced as a result of the discriminatory termination of her employment. If this amount is not paid to the applicant within thirty days of the date of this decision, the applicant is also entitled to interest under the Courts of Justice Act.