HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Qing (Queenie) Xu
Applicant
-and-
Swarovski Canada Limited
Respondent
INTERIM decision
Adjudicator: Keith Brennenstuhl
Indexed as: Xu v. Swarovski Canada Limited
APPEARANCES
Qing (Queenie) Xu, Applicant ) Self-represented
Swarovski Canada Ltd., Respondent ) Donna Gallant, Counsel
1This is an Application 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 the area of employment on the basis of sex.
2By Case Assessment Direction dated November 8, 2011, the Tribunal directed that a summary hearing be held by teleconference. It stated as follows at paragraphs 6:
The Tribunal’s Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during the summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent’s actions and the grounds cited, given the explanation of events in the Response.
3The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing the issue is whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.
Background
4In February 2009, the applicant commenced employment as a Junior Cash Specialist with the respondent. In April 2010 the applicant went on maternal leave, which was scheduled to end in April, 20ll. The respondent hired N.C. to assist the finance department during the applicant’s leave.
5The respondent indicates that in June 2010 it engaged a technology firm to automate its credit card reconciliation process. According to the respondent, when the automation was complete, approximately 60% of the Junior Cash Specialist’s functions disappeared and it was decided that the Junior Cash Specialist role was no longer viable or necessary. The respondent indicates that over the same period, with the increase in the number of stores, loss prevention became a focal point for the finance department and an Inventory Control and Loss Prevention Specialist position was created. In addition an Accounting Specialist position was created to provide support to the Inventory Control and Loss Prevention Specialist and to assume responsibility for running the automated credit card reconciliation process among other functions. N.C. was placed into this position. In the meantime, according to the respondent, the Accounts Payable Administrator resigned from the company and the respondent arranged for the Accounts Payable Administrator position to be filled on a temporary basis.
6In early April, 2011, upon arranging the applicant’s return to work, the respondent advised the applicant that her previous position had been eliminated but that given her previous experience, the respondent was pleased to offer the applicant the position of Accounts Payable Administrator. According to the respondent the role was of equivalent level and value as her previous position and came with a higher salary.
7The applicant maintains that the new position that was offered to her is in fact a demotion, that it is not equivalent to a Cash Specialist and that it is essentially a junior clerical position.. She claims that the difference in compensation, if any, between her old position and the new position is minimal. The applicant indicates that the person hired to cover her while she was on maternal leave continues to work for the respondent carrying out most of the duties that were part of the applicant’s previous role as Junior Cash Specialist.
8It is the position of the applicant that by offering her the Accounts Payable Administrator position rather than the position she held prior to her maternal leave the respondent effectively demoted her which resulted in her constructive dismissal. The applicant argues that her dismissal in this fashion amounts to a breach of the Code.
Decision
9In my view, there are clear conflicts between the parties about the facts underpinning the Application. For example the applicant says that the position she was offered on her return from maternal leave was junior to the position she held prior to going on leave. The respondent maintains, however, that the position was equivalent to the applicant’s former position and that it came with a better salary. The respondent claims that the applicant’s former position was eliminated as a result of automation while the applicant says that her job still largely exists just in a different form. I am not persuaded that these issues can be resolved without an evidentiary hearing.
10The thrust of the applicant’s claim is that but for her pregnancy and her maternal leave she would still be performing her former job. In essence the respondent is saying that it is entitled to eliminate positions and introduce cost saving measures and that simply because an employee is on maternal leave does not preclude the employer’s right to manage its organization
11In my view whether the applicant faced adverse treatment because of her pregnancy and her maternal leave is a matter that should be determined at a hearing, with the benefit of document disclosure and cross-examination. I am not persuaded, based on an assessment of all the information before me, to exercise my discretion to dismiss the application without a hearing.
Order
12The Registrar will establish a date for hearing in the usual course.
Dated at Toronto, this 3rd day of May, 2012.
“Signed by”
Keith Brennenstuhl
Vice-chair