McKenna v. Local Heroes Stittsville, 2013 HRTO 1117

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashley McKenna Applicant

-and-

Local Heroes Stittsville and Shane Chartrand Respondents

DECISION

Adjudicator: Paul Aterman Date: June 25, 2013 Citation: 2013 HRTO 1117 Indexed as: McKenna v. Local Heroes Stittsville

APPEARANCES

Ashley McKenna, Applicant Debbie Lucas, Representative

Local Heroes Stittsville and Shane Chartrand, Respondents No one appearing

Introduction

1The corporate respondent operated a sports bar in Stittsville. In March of 2011 the applicant began to work there as a waitress on a part-time basis. She would work between three and five shifts (of five hours) each week, or between 60 and 100 hours per month. The applicant became pregnant in July of 2011. She felt fine and kept on working.

2However, the bar was not doing well. Around November of 2011 there was a change in the management of the bar, and the personal respondent took over as manager. As part of an attempt to revive its flagging business he introduced a new dress code for staff. The applicant spoke to him, raising a concern that the new form-fitting shirts would highlight her already visible pregnancy. The personal respondent agreed that she would not have to wear the new uniform on future shifts. But, with the exception of two further shifts, the applicant was not given any more work. Eventually she received a Record of Employment indicating that she had quit her employment.

3She filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex. For the reasons set out below, I find that the respondents discriminated against the applicant by refusing to provide her with work and then by formally terminating her employment. Her pregnancy was the reason for their actions. For this prohibited conduct under the Code the corporate and personal respondents are jointly and severally liable.

background

Failure of the respondents to participate in the hearing

4Throughout these proceedings the only address either party provided for the personal respondent was the mailing address of the corporate respondent. When the respondents filed their Response, the respondents’ representative confirmed it was filed on behalf of both respondents and that she was representing them both. The applicant’s June 5, 2012 Statement of Delivery of her Reply indicates that she provided the Reply to both respondents by hand, as well as by fax and mail to the corporate respondent and by mail to the respondents’ representative.

5On July 27, 2012 the respondents’ representative advised that she was no longer acting as their representative. She indicated that Markus Kosmos was now the respondents’ representative. She indicated his address for service as Local Heroes, 15 Robertson Road, Bells Corners, Ontario, K2H 5Y7. At the hearing the applicant identified Mr. Kosmos as the owner, or one of the owners, of the corporate respondent, as well as being the owner, or one of the owners, of the Local Heroes bar in Bells Corners. That bar is still in operation.

6The Tribunal provided notice of the hearing to the respondents, care of Mr. Kosmos, at the Bells Corners address. There is no indication that mail, including the Notice of Confirmation of Hearing, was returned from this address. As none of the parties provided the Tribunal with documents, a witness list and witness statements in accordance with the deadlines set out in the Notice of Confirmation of Hearing, a Case Assessment Direction was issued to advise parties of the potential consequences of not doing so. The applicant then provided her documents to Mr. Kosmos and the Tribunal, but the respondents did not respond to the Case Assessment Direction.

7Neither respondent appeared at the hearing despite being given a 30 minute grace period from the scheduled start time. I am satisfied that both respondents were provided notice of the hearing. The respondents filed a common Response and were represented by the same representative. The Tribunal corresponded with the respondents through their representative. In addition, the applicant provided both respondents with her Reply by hand, as well as by other means. Once the first representative withdrew, she provided the Tribunal with Mr. Kosmos’ mailing address. The Tribunal used his mailing address to contact the respondents, with no indication that he did not receive mail from the Tribunal. Based on these facts I have no reason to doubt that the respondents received notice of the hearing.

The applicant’s employment with the corporate respondent

8The applicant testified that her part-time employment as a waitress with the corporate respondent meant that she had no guaranteed shifts and would have to be available to respond to her employer’s call. However, from March to November, 2011 she worked on a steady basis, with between three and five shifts each week. As of September, 2011 she started a second part-time job as a hostess in a restaurant at Scotiabank Place on nights when professional hockey games or concerts were being staged. She would normally work one shift per week in that job.

9The applicant stated that the Stittsville bar was not doing well financially. She knew none of the details of its problems, but testified that all of the staff understood that it was not doing well. In November, 2011 there were changes in the management of the bar and her supervisor was replaced by the personal respondent.

10She testified that the first conversation she had with the personal respondent was around the end of November, on the day he took over as manager. He informed her that staff would now be expected to wear a new uniform. Up to that point the wait staff could wear t-shirts branded with beer company logos and lycra yoga pants. The applicant maintained that the personal respondent told her that the new uniform was to consist of (in his words) a “tight, form-fitting” lycra shirt made to look like a sports referee’s jersey, black lycra yoga pants or short black lycra shorts.

11With the exception of one waitress, whom the applicant believed to be in her late forties, all the wait staff and bartenders were women in an age range of between 19 and 25. The older waitress only worked breakfast and day shifts.

12The applicant told the personal respondent that she would not feel comfortable wearing the new uniform, as her pregnancy had now become visible and a lycra shirt would only highlight the fact that she was expecting a child. By contrast, the t-shirts worn up to that point were sufficiently loose so as not to draw attention to her pregnancy. She testified that the personal respondent told her that there would be no problem in making an exception to the dress code in her case. She stated that the conversation ended with the personal respondent asking her to thoroughly clean the whole bar, as it was looking neglected. She did as she was asked and ended her shift late.

The applicant’s termination

13She testified that after this conversation she received no more calls for work. She made repeated inquiries about when she would be scheduled. She went to the bar about ten times to check the shift schedule and telephoned often to ask the personal respondent when she would be scheduled. She was told there was no work available. The applicant stated that she found it demeaning to have to keep making inquiries, in essence having to beg for work, and that as this went on she found it humiliating to show up repeatedly at the bar only to be told to go away.

14The applicant maintained that in this period the respondents hired two new waitresses. She knew this by reading unfamiliar names on the shift schedule and by seeing the waitresses at work in the bar when she came in to check the schedule. The applicant stated that she asked the personal respondent why new waitresses had been hired when she was available. She testified that he told her he did not have to give her a reason for management decisions on who works and when they work. The applicant discussed her situation with co-workers and they felt she was being treated unfairly.

15She then sought the advice of the Human Rights Legal Support Centre. She was advised to write a letter to the respondents to find out why she was not being given work. On December 28, 2011, she hand-delivered the letter to the personal respondent. The letter contrasts the frequency of her shifts under the previous management with her current lack of work, notes that the lack of shifts followed directly upon the conversation regarding the new dress code, expresses her availability and willingness to work, and asks whether she had been terminated.

16The personal respondent sent her an email the next day which reads:

This letter corresponds with the requested information from, Ashley McKenna, on the date of December 29th, 2011, in regards to employment at Local Heroes Stittsville.

Ashley has been employed by Local Heroes for Nine months, and continues to hold employment with us.

Due to new management, restructuring and financial reconstruction of the business, there have been multiple staff that have had cut backs on there hours. In some cases, certain staff members have been given, NO shifts in a week. This is either due to In-availability or miss-communication.

Dress code has recently been changed from a variety of product branding (eg: beer shirts, senators apparel etc.) to restaurant branding (eg: Local Heroes branded referee shirts).

Ashley had discussed her concerns with the dress code and we had concluded that due to her pregnancy, she was exempt from the new dress code. Since this, I have not been able to contact Ashley, due to non-up to date contact information. Again, she was not scheduled, due to assumption of in-availability.

Ashley’s pregnancy is irrelevant to her employment or termination from Local Heroes and it weighs no factor on either of the two extremes.

Her desire to continue her employment at Local Heroes is greatly appreciated and has been answered with shifts that are available, that also cater to her availability. We appreciate her assertive and proactive actions towards her employment with us.

The questions that were asked have been answered in person and are as follows:

Has her employment been terminated?

A- No.

If her employment was terminated, why?

A- Employment status is active

If her employment has not been terminated, when can she expect to be placed back on the schedule?

A- She has been placed on the schedual for the following weekend, January 7th and 8th, 2012.

Now that Ashley’s availability has been discussed. Her proper up-to-date contact information has been received by myself, she will be scheduled accordingly to availability and as required.

To conclude, this was a formal notice to be kept on record for Ashley McKenna and Local Heroes Stittsville, in regards to her employment status, active.

17Following this exchange the applicant was scheduled and worked the breakfast shifts on January 7 and 8, 2012. She testified that she was the first to be cut on those shifts. What that means is that as the pace of work on a shift begins to wind down, some of the wait staff are “cut” or told to finish work, while a reduced number are kept on and paid until the end of the shift. The personal respondent made these decisions.

18After these shifts she was given no more work by the respondents. On January 30, 2012 a Record of Employment (“RoE”) dated January 26, 2012 arrived in the mail from the corporate respondent. The code on the RoE is “E”, which signifies that the applicant quit her employment.

19The next day she sent an email to the personal respondent. She denies having quit her employment. The email includes the following statement:

I have never expressed any intent to terminate my employment with Local Heroes, to the contrary I have constantly expressed desire to continue my employment at Local Heroes! This can be substantiated by my letter to you dated December 29, 2011 and my frequent phone calls and visits to Local Heroes Stittsville.

20The applicant sought Employment Insurance benefits and was told that she was ineligible for having quit without just cause. She tried to have the corporate respondent issue a correct RoE, but to no avail. The Response filed by the respondents includes an amended RoE dated February 15, 2012 that indicates the applicant was laid off due to a shortage of work. The applicant testified that neither she nor Service Canada were given this amended version of the RoE.

21The applicant then filed this Application. Her intent was to work until the birth of her child in April of 2012, and she maintained her second part-time job at Scotiabank Place until then. She has not worked since giving birth, living on maternity benefits and assistance from her mother. She started a search for a new job three weeks prior to this hearing.

analysis

22The Code prohibits discrimination in employment on the basis of sex. This includes a prohibition on discrimination because of pregnancy. Sections 5(1), 9 and 10(2) read:

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, gender identity, gender expression, 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.

23The issues I need to determine are whether the applicant was discriminated against because of her pregnancy and, if so, what an appropriate remedy is in the circumstances of this case.

Did the respondents discriminate against the applicant?

24I accept the applicant’s oral testimony. It was uncontradicted, delivered in a forthright manner and was consistent with documentary evidence that is largely contemporaneous with the events in question and that pre-dates the filing of this Application. The applicant maintains that the respondents’ decision to introduce a new uniform, and her request to be exempted from wearing it triggered a decision by the respondents to stop giving her work and then to terminate her employment.

25The applicant testified that the respondents wanted to boost the fortunes of the bar by re-branding it and attracting a younger clientele. I find that emphasizing the sexual attractiveness of its staff was the means to this end. The wait staff were – with one exception – young women between the ages of 19 and 25. The older waitress would work morning and day shifts only. The new uniform that staff were expected to wear was made to draw attention to the shape of the body.

26Given this context, I find that the fact that the applicant was pregnant, and visibly so, was regarded by the respondents as inconsistent with their branding efforts and that her presence at work was an inconvenience that could be dispensed with by not offering her any more shifts. Although I accept that the bar was having financial difficulties, up to that point the applicant had been working regular shifts. As soon as she raised an objection to the uniform, with the exception of two additional shifts, the work stopped altogether.

27The email from the personal respondent dated December 29, 2011 is disingenuous. In it he denies that the applicant has been terminated and claims that she could not be scheduled because he could not get in touch with her. The applicant’s uncontradicted evidence is that she went to the bar frequently and phoned the personal respondent to inquire about shifts. Her testimony on that point is consistent with her contemporaneous response in the form of her January 31, 2012 email that I quote in paragraph 15 above. Based on this evidence I find that the applicant could have easily been contacted and the respondents could have offered her work. If financial considerations were at play, the respondents’ claim that a reduction in hours was necessary might be credible. However the applicant’s hours were not reduced. Rather, she was offered no work whatsoever for the remainder of November, all of December and the beginning of January.

28In response to the applicant’s letter of December 28, 2011 the respondents offered her two shifts. In my view the respondents provided this work in order to placate the applicant, but with no intention of continuing her employment over any longer term. I come to this conclusion for the following reasons. First, the offer of those shifts is made in response to a pointed letter from the applicant which she drafted after seeking legal advice. The letter raises the question of whether she has been terminated without cause, and it implies that she is not prepared to let the matter drop. Second, the offer of the two shifts comes in an email from the personal respondent that provides an explanation for failing to schedule her that, as I note in the preceding paragraph, is itself not credible. Third, the applicant was scheduled for two of the less lucrative breakfast shifts and was the first waitress to be cut on those shifts. Fourth, and most compelling, is the fact that after those two shifts she received no other offers of work from the respondents and then received her RoE.

29The law does not require that I find that the applicant’s pregnancy was the sole or dominant reason for ending her employment. I simply need to decide whether her pregnancy was a factor in that decision (See: Velenosi v. Dominion Management, (1997), 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (Ont. C.A.); Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.)). However, in this case I think that it is more likely than not that the applicant’s pregnancy was the only reason for ending her employment.

30As soon as the applicant voices a concern about the new dress code, the regular flow of shifts that she was used to ends. Despite the fact that she lets the respondents know repeatedly that she is available and wants to work, she is not called. However, two new waitresses are hired, which suggests that the financial challenges facing the business were not so great that the respondents could not have offered the applicant some work, even if it were less than she been accustomed to. When pressed, the respondents offer an excuse for failing to contact her that is not credible. Taken together, these facts suggest that the applicant’s pregnancy and her reluctance to wear the new uniform are the reasons why her shifts were reduced and she was terminated. I conclude that this violated the applicant’s right to equal treatment with respect to employment and constituted discrimination on the basis of sex contrary to ss. 5 and 10(2) of the Code.

The respondents are jointly and severally liable

31The personal respondent was employed in a managerial capacity, and his actions were the direct source of the discriminatory conduct. He had the conversation with the applicant regarding the new uniform, he provided her with the assurance that she would not have to wear it, and he took the decisions not to schedule the applicant for work. The conduct of the personal respondent is sufficient to find that he breached both s. 5(1) and s.10(2) for the purpose of establishing liability under the Code. The Code also makes clear in s.46.3(1) that a corporation is vicariously liable for the acts or omissions of its officers and employees that are done in the course of their employment. In this case the corporate respondent is vicariously liable for the discriminatory conduct of the personal respondent.

32The applicant indicated that the Stittsville bar is closed and has been since September of 2012. There is no evidence before me about the structure of the corporate respondent and whether it still functions as a corporation. However, the fact that the bar is closed, at the very least, raises the prospect that the applicant may have difficulty enforcing the remedy.

33Given the risk that the applicant may not recover damages, and given the conduct of the personal respondent, it is appropriate to make clear not only that the corporate respondent is vicariously liable, but also that the respondents are jointly and severally liable in this case. In my view this is consistent with the principles set out by the Divisional Court in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876.

What is the appropriate remedy?

34Subsections 45.2(1) and (2) of the Code provide that:

… 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.

For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

Compensation for lost income

35The applicant had intended to work up until she gave birth, and testified that she did so at her second job at Scotiabank Place. She requests compensation for what she would have earned from January 9, 2012 (the date following her last shift) until April 10, 2012 based on an average of four shifts per week. In my view this is reasonable because it is consistent with the frequency of her work prior to being dropped from the shift schedule, and because the evidence indicates that she was capable of working in this period. In fact, she could also have claimed lost income for the period from the end of November, 2011 to January 7, 2012, as the respondents’ discriminatory actions reduced her income in this period. However, she did not make that request. In the circumstances I award her $2,848.00, which is the amount she has claimed for lost income.

Compensation for injury to dignity, feelings, and self-respect

36In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal noted at paragraphs 53-54 that:

… injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

…Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

37The applicant has requested $25,000.00 as compensation. In describing the impact of the respondents’ conduct on her she explained how she felt both before and after her termination. She indicated that it was humiliating to have repeatedly requested shifts and to have shown up at the bar only to be turned away. She expressed this as a sense that she was not wanted and that after the first few attempts she felt stupid for persisting in trying to work. She also stated that the respondents were effectively telling her that her pregnancy was something unattractive and that she did not deserve to be seen working while expecting her child. The applicant found that waiting for work, and then dealing with her termination to be stressful and she worried about how it might affect her pregnancy and the health of her child. As a single mother she worried about how she would cope financially and felt that it was pointless to go looking for work in January of 2011 because she believed that no one would hire a woman who was six months pregnant.

38I find that the respondents’ conduct toward the applicant was offensive and lacking in respect for her dignity and her equal worth. She raised legitimate and reasonable concerns about wearing the new uniform because her pregnancy had progressed to the point of being visible. The applicant understandably felt that wearing the new uniform would draw attention to her pregnancy and that it would be awkward and embarrassing to wear a tight shirt as her pregnancy progressed. The personal respondent’s assurance that she would benefit from an exception to this rule was deceptive and led the applicant to think, temporarily, that her concerns were being respected. When ultimately challenged on this, he provided a reason for not scheduling her that lacks any credibility. I find that the respondents simply decided to deal with what they perceived as a problem raised by the applicant by not allowing her to come back to work. They were indifferent to the impact that this had on the applicant, who was in a vulnerable position, with limited financial means and a child on the way. I conclude that the actions of the respondents were deliberate incidents of discrimination.

39In reviewing decisions of the Tribunal where pregnancy was either a factor or the sole reason to terminate employment, I note that to date awards for injury to dignity, feelings and self-respect have generally ranged between $10,000.00 and $20,000.00. See for example: Bickell v. The Country Grill, 2011 HRTO 1333 ($15,000.00), Graham v 3022366 Canada Ltd., 2011 HRTO 1470 ($20,000.00), Maciel v. Fashion Coiffures, 2009 HRTO 1804 ($15,000.00), Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758 ($10,000.00), Guay v. 1481979 Ontario, 2010 HRTO 1563 ($10,000), Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 ($12,500.00), and Korkola v Maid Day! Maid Day! Inc., 2013 HRTO 525 ($13,000.00).

40In Shinozaki v. Hotlomi Spa, 2013 HRTO 1027 the applicant was awarded $20,000.00 in circumstances which bear a number of similarities to this case. In that case the applicant’s employment was of a similar length and the respondents’ actions in terminating the applicant were driven by a view that her pregnancy made her unattractive to the respondents’ customers. Discrimination was deliberate and pregnancy was the sole reason for termination. Those parallels are all present in this case.

41However, in Shinozaki the Tribunal notes that the applicant was subject to persistent and offensive personal comments about her pregnancy over a number of months before she was ultimately terminated from work. That did not take place in this case, and is a reason why I would make a lesser award than in Shinozaki. I consider an award of $17,000.00 for injury to dignity, feelings and self-respect to be appropriate in this case.

Public interest remedy

42The deliberate nature of the respondents’ conduct in this case leads me to conclude that they would benefit from training on their obligations under the Code. I order that, within 30 days of the date of this Decision, the personal respondent and any other managerial staff of the corporate respondent are to complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101). The personal respondent and the corporate respondent are also directed to confirm in writing to the applicant within 60 days of this Decision that they have complied with this Order regarding training.

order

43The Application is granted and I make the following Orders:

1. The respondents are to pay the applicant $2,848.00 as compensation for lost income, plus prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c.43 at a rate of 1.3% from January 9, 2012, the date following the applicant’s last shift, to the date of this Decision. The respondents are to pay this within 30 days of the date of this Decision. If they fail to do so, then post-judgment interest at the rate of 3% shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date.

2. The respondents are to pay the applicant $17,000.00 as compensation for injury to dignity, feelings, and self-respect, plus prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c.43 at a rate of 1.3% from January 9, 2012, the date following the applicant’s last shift, to the date of this Decision. The respondents are to pay this within 30 days of the date of this Decision. If they fail to do so, then post-judgment interest at the rate of 3% shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date;

3. The personal respondent and any other managerial staff of the corporate respondent are to complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 30 days of the date of this Decision. The personal respondent and the corporate respondent are also directed to confirm in writing to the applicant within 60 days of this Decision that they have complied with this Order regarding training.