Shajari v. Powerline Plus Ltd., 2012 HRTO 1934

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mehrnoush Shajari Applicant

-and-

Powerline Plus Ltd. Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: October 11, 2012 Citation: 2012 HRTO 1934 Indexed as: Shajari v. Powerline Plus Ltd.

APPEARANCES

Mehrnoush Shajari, Applicant Self-represented

Powerline Plus Ltd., Respondent Giselle Matin, Counsel

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 with respect to employment owing to age, sex and marital status.

2The hearing into this matter was held on September 13 and 14, 2012. I heard the evidence of the applicant and the evidence of her only witness, her spouse, Alireza Radfarma. In addition I heard from Ben Matin, the president and CEO of the respondent corporation, one of eleven witnesses for the respondent.

3At the conclusion of the first day of the hearing I directed the parties’ attention to Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, and asked the parties to provide submissions on whether there was a reasonable prospect that the Application would succeed. While the HRTO Rules of Procedure provide for a Summary Hearing at an early stage of the proceedings, and prior to a hearing, Pellerin states that an adjudicator may assess whether there is a reasonable prospect of success at an appropriate stage of an ongoing hearing. Pellerin states at para. 30:

For all these reasons, I have considered the parties’ arguments in light of the evidence in this case in relation to the question of whether the Application has no reasonable prospect of success. In my view, this question should be considered in light of the evidence that has been heard and that is reasonably expected to be presented. This involves a consideration of whether, in light of the pleadings, witness statements, documents relied upon and evidence that has been heard, there is a reasonable prospect that an applicant can meet his or her burden of proof.

4The following morning I heard the parties’ submissions on whether there was a reasonable prospect of success. This decision addresses that issue.

Background

5The corporate respondent is a family owned and operated business. On or about February 14, 2011 the applicant commenced employment with the respondent as an administrative assistant on a three month probationary period. One week prior to the conclusion of her probationary period the respondent terminated her employment.

6The applicant alleges that throughout her period of employment with the respondent she was mistreated by fellow employees. She asserts that she was wrongfully dismissed and was never given a reasonable explanation for her dismissal.

7The respondent claims that the applicant was terminated during her probationary period because her communication skills and her computer skills did not meet the respondent’s expectations or the skill level that she claimed to have.

Applicant’s evidence

8The applicant testified that shortly after her employment commenced she was told by two co-workers that her position was at risk because she was married and not able to flirt with the supervisors.

9She testified that the CEO’s son who was a part time employee was engaged to the receptionist. The applicant testified that she observed the son massage the receptionist’s neck and shoulders while she was on reception. According to the applicant the CEO treated the receptionist differently from other staff. On her birthday the company bought pizza for all the staff and sent flowers to her desk. As well the CEO and his son took the receptionist to a restaurant for lunch and the son gave her a birthday gift.

10The applicant testified that the receptionist was promoted to a job that should have gone to the applicant even though the receptionist was not professional and not as well educated as the applicant. She claimed that the receptionist got the promotion because she was engaged to the CEO’s son and because she was younger than the applicant.

11She testified that while the CEO allowed her to take a sick day, the office manager complained to the CEO that she was never allowed to take a sick day while she was on probation. The applicant explained that this was humiliating and embarrassing.

12The applicant testified that her shift started at 8:00 am. On one occasion when she started her shift she noticed an email from the CEO that had been sent to her at 7:30 pm. the previous evening indicating that she was to attend a meeting at 8:00 am. that day. According to the applicant although she was only five minutes late for the meeting she and other workers who were late as well were barred from the meeting. The applicant stated that she was humiliated and felt that she and the other workers were being excluded from the team and the meeting.

13The applicant testified that someone had somehow altered her work with respect to a client’s application for the purpose of showing the CEO that she had made a mistake. She explained that she did not know who altered her work but she found it frustrating and felt that someone was trying to sabotage her work.

14The applicant maintains that she was terminated from her employment “because I did not participate in consensual sexual activity with the supervisors and CEO of the company.”

Mr. Radfarma’s evidence

15Mr. Radfarma’s evidence was largely hear-say in that he basically testified as to what the applicant had told him had happened at her work. While I found him to be earnest and honest, I do not give his evidence much weight.

Mr. Matin’s evidence

16There would be little served by setting out in detail the testimony of Mr. Matin. It is enough to say that his testimony focused on the reasons for dismissing the applicant. He indicated that he had concerns about her performance from the start and although they moved her into different positions within the organization in an effort to find her a suitable position, it was an unsuccessful exercise. In the end, the decision was taken to terminate the applicant just prior to the conclusion of her probationary period.

Analysis

17The applicant indicated that she was told by two co-workers that her job was at risk because she was married and therefore could not flirt with her supervisors. It may well have been her co-workers opinion that in order to succeed one needed to flirt with the bosses; however, I fail to appreciate how the expression of that opinion to the applicant amounted to Code- related discrimination.

18The applicant took umbrage with the massaging of the receptionist’s neck and shoulders by the CEO’s son. She also complained about the favourable treatment the receptionist received on her birthday from the son and father. According to the applicant the CEO and his son treated the receptionist differently from the other staff. Even if I were to adopt this premise, I do not see how this amounts to discrimination under the Code against the applicant on any of the grounds cited by the applicant.

19The applicant was of the view that the receptionist got the job that the applicant should have been offered because she was engaged to the CEO’s son and because she was younger than the applicant. Assuming that the receptionist’s relationship with the CEO’s son was a factor in the decision to hire the receptionist over the applicant, this would not lead to a finding of discrimination under the Code. Nepotism, while not necessarily a best business practice, is not proscribed by the Code. Discrimination on the basis of age, on the other hand, is proscribed by the Code. However, apart from mere speculation, the applicant has provided no evidence that age factored into the respondent’s decision to hire the receptionist over the applicant. Mr. Matin’s testimony did not shed any light on the issue. I accept that the receptionist is younger than the applicant, who is 35 years of age, but that by itself does not prove that the applicant was discriminated against on the basis of age.

20In my view, the office manager’s complaint to the CEO that she was never allowed a sick day during her probation does not engage the Code. The applicant failed to demonstrate any link between this incident and her age, sex or marital status or any other ground enumerated under the Code.

21The incident relating to the meeting cannot lead to a finding of discrimination. Firstly, there was no differential treatment. It would seem that the applicant’s underlying complaint was the failure on the part of Mr. Matin to give adequate notice of the meeting; however, all staff received the notice of meeting at the late hour and all staff members who were late for the meeting were barred from attending the meeting. Mr. Matin indicated that the meeting room door is always closed shortly after the starting time of a meeting to ensure promptness and to minimize disruptions during the meeting. Secondly, even if one were to characterize such treatment as differential, the applicant did not adduce any evidence linking that treatment to her age, sex or marital status.

22The applicant feared that on one occasion someone had sabotaged her work. Her evidence on this point was quite vague and lacking in detail. She did not know who did it, how they did it or why they did. She speculates that it was done in order to get her fired. All in all, I am not satisfied that the applicant’s evidence supports her allegation of sabotage. Even if the evidence was sufficient, as with many incidents, the application has not provided any evidence linking the sabotage to her age, sex or marital status.

23According to the applicant, her employment was terminated because she would not participate in consensual sexual activities with her supervisors. In my view, this allegation is intemperate. There was absolutely no evidence adduced by the applicant that could even remotely support this allegation. When asked if she had ever been asked for any sexual favours by anyone at any time during her employment with the respondent the applicant stated quite emphatically that she had not.

24In my view, it is evident, based on the evidence presented, that the applicant cannot prove discrimination within the meaning of the Code. There would be little served by hearing from the respondent’s remaining witnesses.

order

25The Application has no reasonable prospect of success and is therefore dismissed.