Tammy Brown v. Primary Response Inc., 2013 HRTO 1046

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Brown

Applicant

-and-

Primary Response Inc.

Respondent

DECISION

Adjudicator: Mark Hart

Date: June 11, 2013

Citation: 2013 HRTO 1046

Indexed as: Brown v. Primary Response Inc.

APPEARANCES

Tammy Brown, Applicant

Self-represented

Primary Response Inc., Respondent

Yvonne MacDonald, Representative

1This is an Application dated May 11, 2011, and completed August 10, 2011, and filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal.

2The issues raised in this matter are whether the respondent engaged in reprisal contrary to s. 8 of the Code: (1) by failing to place the applicant in a static, full-time position paying $14.00 per hour during the period from January 21, 2011 to April 26, 2011, and (2) by taking the position that the applicant had voluntarily resigned her employment when she failed to renew her security guard license prior to its expiry on April 29, 2011.

3The hearing in this matter was held on May 14, 2013. On consent of the parties, I took the lead in questioning the witnesses and heard from the applicant and Yvonne MacDonald, who is the respondent’s human resources and training development manager.

4The applicant was employed as a security guard and previously worked for a different company. On April 29, 2009, the respondent took over the previous company’s business, and continued to employ the applicant. In 2010, the applicant filed a human rights application with this Tribunal alleging that she had experienced discrimination by being removed from a static posting at the Ministry of Finance and having her rate of pay reduced from $14 per hour to $11 per hour. That application proceeded to mediation, and resulted in a settlement dated January 21, 2011.

1) Allegation re failure to place the applicant in a static posting

5There is no dispute that during the period from and after the date of the settlement on January 21, 2011 until April 26, 2011, the applicant’s rate of pay returned to $14 per hour. The applicant’s contention is that she was told that the respondent would make efforts to find her a static position in which she would be paid that rate, but that this did not happen. The applicant’s evidence is that she consistently had to call in to the respondent’s scheduling department in order to find assignments, and that she was moved into a variety of temporary postings and for some periods was without any posting. The applicant states that she spoke with a woman in the scheduling department who was supposed to be looking for a static posting for her, and was told that they were having difficulty finding a site that was willing to pay the applicant’s rate of pay. The applicant concedes that she is not aware of any static posting that she could have been put into at which her $14 per hour rate of pay would have been maintained.

6Ms. MacDonald’s evidence is that the respondent made efforts to try to find a static posting for the applicant, but was not successful in doing so up until the time the applicant stopped working for the respondent. Ms. MacDonald noted that under the employment contract with the applicant, the applicant expressly understood and agreed that the respondent reserved the right to unilaterally change her assignments, duties and reporting relationship at the respondent’s sole discretion. While the respondent did try to find a static posting for the applicant, Ms. MacDonald stated that this was not the respondent’s obligation; rather, the respondent’s obligation was simply to provide the applicant with full-time work at the appropriate rate of pay.

7In terms of the respondent’s efforts to find the applicant a static posting, Ms. MacDonald states that the applicant was interviewed for a security guard posting at Centennial College, but was not a successful candidate. Ms. MacDonald states that the respondent never stopped in its efforts to find a static posting for the applicant, but experienced difficulty in locating a static posting that was in the east end of the greater Toronto area and that would pay the applicant’s rate of pay. Ms. MacDonald states that she was not willing to remove a security guard who was already assigned to a static posting in order to make that posting available to the applicant.

8At the end of the day, there is simply no evidence before me that there was a static posting available at the applicant’s rate of pay that the respondent could have placed the applicant in, but failed to do so. In the absence of any such evidence, and in view of the challenges faced by the respondent in finding a static posting for the applicant that would pay her rate of pay and in view of the relatively short period of time at issue, I do not have a sufficient basis in the evidence to support a finding that the respondent engaged in reprisal against the applicant on the basis that it did not place her in a static posting.

2) Allegation re ending of employment relationship

9As a security guard in Ontario, the applicant was required to maintain a valid licence under the Private Security and Investigative Services Act, 2005, S.O. 2005, c. 34, as amended (“PSISA”). During the time period at issue, the applicant possessed a valid security licence that was due to expire on April 29, 2011.

10The applicant’s evidence is that she submitted her licence renewal application to the Ministry of Corrections on March 18, 2011. The applicant states that her renewal application was sent back to her on April 11 or 12, 2011, because her guarantor had not signed copies of the identification that she was required to provide. The applicant states that she did this expeditiously, and returned the renewal application and supporting materials to the Ministry shortly afterwards by express post.

11The applicant states that she kept the respondent advised of the issue around the renewal of her licence. She states that she was told that her last day of work would be April 26, 2011, if she did not have her renewed licence in hand. The applicant states that, prior to the expiry of her licence, she was never told that she would lose her employment with the respondent if her licence expired prior to receiving the new licence. The applicant relies upon a print-out from the respondent’s website regarding licence renewals, which includes the following language in a letter from an administrative assistant in the human resources department: “Please contact me with status updates (passed test, applied or renewal) so we can insure your position will be held, and/or we find a replacement in time”.

12Unfortunately, the applicant was not notified by the Ministry that her licence had been renewed until May 5, 2011, which was six days after her licence had expired. The applicant states that she left a voicemail message with Ms. MacDonald that day and spoke with her the following day. The applicant’s evidence is that she was told by Ms. MacDonald that she was considered to have resigned her employment with the respondent, and would have to come in to the human resources office in order to re-apply. The applicant states that she asked Ms. MacDonald whether this meant that she would lose her seniority and rate of pay, and that Ms. MacDonald answered yes.

13Ms. MacDonald relates a somewhat different version of events, although in my view the factual disputes as between the applicant and Ms. MacDonald as to what transpired are not material to this decision. Ms. MacDonald’s evidence is that she first became aware of the issue regarding renewal of the applicant’s licence as a result of a voicemail message left for her by the applicant on April 27, 2011. Ms. MacDonald’s evidence is that she spoke with the applicant on April 28, 2011, and advised her that if she did not have her renewed licence by the time it expired the following day, then she would be removed from all assignments and would need to attend at the respondent’s human resources office to re-do her paperwork. Ms. MacDonald’s evidence is that she speaks to anywhere between 30 or 40 employees per month about the same issue, and what she tells them is always the same.

14Ms. MacDonald testified that she had no discussion with the applicant about her losing her seniority and going back to minimum wage. She states that if that had been raised, then she would have told the applicant that this was not the case. She states that there was no more specific discussion regarding the consequences of the applicant’s licence expiring. All that was said was that the applicant would have to attend the respondent’s office if her licence expired and re-do her paperwork.

15In terms of the requirement to re-do her paperwork, Ms. MacDonald testified that, by law, as an entity licensed to provide security, the respondent cannot legally employ an unlicensed guard. As a result, the file for an employee whose licence expires becomes inactive, because the respondent cannot have someone on its records as an employee if they not a licensed guard. Ms. MacDonald testified that this happens commonly, on average about 10 to 50 times per month, and provided the Tribunal with documentation and specific examples to support her evidence. She states that if an employee’s licence expires, their file is de-activated. If the individual subsequently receives a renewed licence, then the employee is transferred over to a new employee number and the physical paper file is transferred into a new file, and their rate of pay and seniority remains the same. Ms. MacDonald states that this the only way that the respondent can keep people employed and not break the law under the PSISA.

16Ms. MacDonald states that she next received a voicemail from the applicant on May 3, 2011, and then spoke with her the following day. Ms. MacDonald states that the applicant advised that she still had not received her licence at that time, and would be calling back again the next day. Ms. MacDonald testified that she told the applicant that as soon as she physically had her renewed licence in hand, she needed to attend the respondent’s office to re-do her paperwork.

17Ms. MacDonald states that she then spoke twice with the applicant on May 6, 2011. She states that when they first spoke, the applicant had not gotten her mail yet. When they spoke again in the afternoon, Ms. MacDonald states that she was told by the applicant that she had received her licence. Ms. MacDonald states that she once again informed the applicant that she needed to attend the respondent’s human resources office. Ms. MacDonald states that the applicant started swearing at her and said that the respondent was trying to make her a minimum wage employee. Ms. MacDonald states that she advised the applicant that this was not true and that she needed to calm down, and that they could discuss the matter the next day when the applicant attended the office. She testified that the applicant continued swearing and then hung up phone. This was denied by the applicant in her evidence at the hearing.

18When the applicant did not attend at the respondent’s offices the next day, Ms. MacDonald states that she called the applicant on May 7, 2011, at about 2:15 p.m. She states that the context of conversation was the same, and that the applicant again was swearing at her, except that on this occasion the applicant said that the respondent was doing this because she previously had filed a human rights application. Ms. MacDonald states that she told the applicant that this was not true, and that the respondent had over 70 people that month with expired licences. Ms. MacDonald’s evidence is that the issue of whether the applicant’s rate of pay and seniority would be maintained did not come up in that conversation. Ms. MacDonald states that she told the applicant that she needed to calm down and that, if she wished to discuss the matter further, they could do so when the applicant attended the respondent’s offices. Ms. MacDonald states that this was the last conversation she had with the applicant, and that the applicant did not ever attend the respondent’s offices to re-do her paperwork.

19A record of employment for the applicant was issued on May 12, 2011, which shows “quit” as the reason for issuance.

20Ms. MacDonald testified that an employee in the respondent’s human resources office called the applicant on August 31, 2011, and left a voicemail message inquiring whether she was interested in returning to work. Ms. MacDonald states that this was in accordance with the respondent’s general practice, whereby a follow-up call would be made to a former employee whose licence had expired approximately three months later to see if they had any interest in coming back to work. There is no dispute that this call was not returned by the applicant.

21The respondent submitted into evidence a copy of its Security Licence Policy as signed by the applicant on May 19, 2009. In this policy, it is stated that “if your expiry date comes up before you provide us with a copy of the new valid licence, you will not be able to return to work until you meet with the HR manager to determine your suitability to continue employment with Primary Response.” The respondent submitted a revised Security Licence Policy, which also includes the following statement in bold and italics: “We reiterate that without a valid Security Guard and/or Private Investigator License you are not able to work, and our Employee/Employer relationship will end as you will not be eligible to perform your duties”. Ms. MacDonald believes that this language was added to the revised policy sometime in 2010. There is no specific evidence before me that a copy of a revised policy including this language was signed or reviewed by the applicant.

22The issue for me to determine is whether the applicant’s employment relationship with the respondent was severed because she previously had filed a human rights application against the respondent. This is simply not supported by the evidence.

23Section 31 of the PSISA states: “No business entity shall employ a private investigator or a security guard unless the private investigator or the security guard has an appropriate licence.” This is interpreted by the respondent as meaning that a person without a valid licence simply cannot retain their status as an employee. It is not a matter that the person simply not report for active duty during any period when their licence is not valid. The respondent’s position is that a person without a valid licence cannot remain on its books as an employee at all. It is not my responsibility to determine whether the respondent is correct in this interpretation of its obligations under s. 31 of the PSISA. It is sufficient for this Tribunal’s purposes under the Code to find that this was an honest and sincerely held belief on the respondent’s part, and not a pretext for reprisal against the applicant because she previously had filed a human rights application against the respondent. I have no hesitation in finding that this interpretation of the governing legislation is an honest and sincerely held belief on the respondent’s part.

24In making this finding, I am persuaded not only by the respondent’s policy, which clearly reflects this interpretation of its obligations under the PSISA, but also by Ms. MacDonald’s evidence, as supported by documentation, that the ending of the employment relationship with employees whose licence has expired was a practice of the respondent that was applied generally to its employees and was not targeted at the applicant. In her evidence, Ms. MacDonald was able to provide specific examples of other employees whose employment had ended because of an expired licence, including one specific example where there was only a three-day gap between the expiry of the employee’s licence and his receipt of a renewed licence. I note also that the applicant herself gave evidence that, after her employment relationship with the respondent had ended, she became aware of another employee whose employment with the respondent was ended due to an expired licence. The applicant confirmed that this individual had not previously filed a human rights application against the respondent. The applicant also was not able to identify any licensed employee of the respondent whose employment relationship was allowed to continue uninterrupted despite their licence having expired and then been renewed after a gap.

25In this case, the applicant was focused on her evidence that she was told by Ms. MacDonald that she would lose her seniority and go back to minimum wage as a result of the expiry of her licence and the brief gap before she received her renewed licence. I appreciate that this is disputed by Ms. MacDonald. But even if I were to accept the applicant’s evidence, this is not a sufficient basis to prove reprisal under the Code. In order to provide reprisal under the Code, the applicant needs to be able to establish that she was treated differently or adversely because she previously had filed a human rights application against the respondent. This simply is not supported by the evidence. Rather, the evidence shows that all employees whose licence expired were treated as though the employment relationship had ended, and there simply is no evidence to establish that the applicant was treated any differently. While it may seem unfair to the applicant that her employment relationship was considered to have ended as a result of only a brief lapse in her licence, this result was driven by the respondent’s understanding of its obligations under the PSISA and not by reprisal against the applicant.

26For all of the foregoing reasons, the Application is dismissed.