Anderson v. Henry, 2012 HRTO 213

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Krista Lynn Anderson

Applicant

-and-

Patricia Henry

Respondent

decision

Adjudicator: Judith Hinchman

Date: January 30, 2012

Citation: 2012 HRTO 213

Indexed as: Anderson v. Henry

APPEARANCES / wRITTEN SUBMISSIONS

Krista Lynn Anderson, Applicant ) Self-represented

Patricia Henry, Respondent ) Christopher Little, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O., c. H.19, as amended (the “Code”). The applicant, Krista Lynn Anderson, alleges discrimination in respect of employment based on sex. Specifically she alleges that she was fired because she had been on pregnancy leave.

2The respondent, Patricia Henry, is the Executive Director of York Professional Care & Education, the applicant’s employer at the relevant time (“York”).

BACKGROUND

3York is a non-profit charity that is licensed by the Ministry of Community and Social Services to operate educational programs for children ages 2½ to 12 in childcare centres, before and after school programs, and in licensed homes. In addition it also operates an accredited summer camp program, and through municipal funding offers adult training in the York Region community.

4York employed the applicant as a receptionist/administrative assistant in York’s Aurora head office from September 26, 2007, until June 1, 2010. In addition to phone duties, the applicant also carried out administrative tasks to support the head office and staff members at the York childcare centres.

5The applicant took maternity leave from June 1, 2009 until June 1, 2010. Prior to her departure, the applicant trained a contract replacement to act as receptionist for the period of her pregnancy leave.

6During that period, York closed two of its ten childcare centres.

7Prior to her scheduled return on June 1, 2010, on April 30, 2010, the respondent and another employee met with the applicant and informed her that for business reasons the receptionist position had been eliminated as of the end of March 2010. A letter of termination followed on May 18, 2010, informing the applicant her last day of employment would coincide with her scheduled return date.

THE LAW

8The relevant sections of the Code are 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.

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

10(2) 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.

THE EVIDENCE

9The respondent testified that during the applicant’s leave, York downsized due to declining enrolment in its childcare centres, the closure of two of those centres, and also because it implemented an automated telephone answering system and updated email software.

10Specifically the respondent testified that in September 2009 and February 2010 York closed two of its ten childcare centres as a result of declining enrolment and a resulting decline in operating income. One of those centres was the largest York childcare site. The respondent’s testimony is corroborated by documents prepared at the relevant time that analyzed the financial situation of the closed centres as well as her Executive Director reports presented to the Board of Directors. The applicant did not dispute the accuracy of these documents.

11The respondent testified that the closures reduced the overall amount of administrative support required from head office, which included photocopying activity sheets, planning sheets, and calendars for the centres’ teachers.

12The respondent testified that at the same time a new, fully-automated phone system that directed incoming calls to individuals as well as providing voice mail meant that a receptionist was no longer required to answer the phone, route calls, or take messages. Finally an updated Internet system meant that teachers could email calendars, activity sheets, etc. to the head office where they would be automatically printed. This system also resulted in automating most of the parent handbook preparation.

13In the respondent’s estimation these factors left only 5% of the receptionist/administrative assistant duties, which were shared by the remaining staff. The York Board of Directors thus decided to eliminate that position. As a result the applicant’s temporary replacement was terminated in March 2010, and the applicant was thereafter informed of the decision to eliminate her position.

14The respondent testified about the other positions and the education, certification, or experience required and submitted job descriptions to corroborate that testimony. Those positions were managerial, early childhood educator, assistant teacher, kids’ club leader, child care provider, child counsellor/staff, camp counsellor/outdoor education specialist. The respondent also testified that in-home care providers who participated in York’s program were independent contractors licensed by the province and were not employees. As well, substitute teachers were also non-employees called from an approved list of teachers with the requisite qualifications.

15The respondent testified that the applicant was not qualified through education, certification, or experience for any other staff position. The applicant under cross-examination agreed with that conclusion. The applicant alleges, however, that the respondent could have trained her for another position.

DECISION

16I must determine whether the fact that the applicant was on pregnancy leave was a factor in the respondent’s decision to terminate her employment.

17The burden lies with the applicant to show on a balance of probabilities that the respondent’s actions were based, in whole or in part, on discriminatory grounds. The applicant has failed to lead any evidence from which I can infer that the respondent’s actions were informed by the fact that she was on pregnancy leave other than the fact that the timing of the termination of her employment occurred at the end of her pregnancy leave.

18The applicant has not disputed the respondent’s evidence regarding the business decline York suffered or the fact that it instituted updated technology that automated much of the receptionist/administrative assistant duties. On a balance of probabilities, I find that there were legitimate non-discriminatory reasons for York to eliminate that position and thus legitimate non-discriminatory reasons for the respondent to terminate the applicant’s employment and that these were not tainted by any discriminatory factors.

19I do not agree that after legitimately eliminating the receptionist/administrative assistant position, the respondent had a duty to invite the applicant to apply for another position and then train the applicant for another position. I accept the documented education, certification, or experience requirements for other staff positions, which was not disputed. The applicant has not shown that she was qualified for any other position at York. And it is not disputed that the applicant did not apply for any other position.

20This Application is dismissed.