HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Shettleworth

Applicant

-and-

GAP (Canada) Inc., Angela Mercey, Anthony Hastings, Slyvia Dziedzic, Meagan Gauley and Shaunak Sushila

Respondents

decision

Adjudicator: Jennifer Scott

Decision Date: January 9, 2013

Citation: 2013 HRTO 17

Indexed as: Shettleworth v. GAP (Canada) Inc.

APPEARANCES

Andrea Shettleworth, Applicant ) Self-represented

GAP (Canada) Inc., Angela Mercey, ) Anthony Hastings, Slyvia Dziedzic, ) Meighan Ferris-Miles, Counsel Meagan Gauley and Shaunak Sushila )

INTRODUCTION

1This Application was filed with the Tribunal on July 8, 2010. The applicant alleges that she was discriminated against during her employment with Banana Republic on the basis of race contrary to s. 5 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Banana Republic is owned by the corporate respondent Gap (Canada) Inc.

2Following the filing of the Application, the applicant’s employment was terminated. The applicant alleges the termination was a form of reprisal contrary to s. 8 of the Code.

3In an earlier Interim Decision, 2012 HRTO 1026, the applicant’s allegations of discrimination during her employment were dismissed as having no reasonable prospect of success. The Tribunal directed a hearing on the issue of reprisal alone. This is the Tribunal’s decision on that question, following a hearing on November 7 and 8, 2012.

FACTUAL BACKGROUND

4The applicant worked as a sales associate with Banana Republic at the Mississauga Square One for nine years. By all accounts, she was an extremely talented sales associate. In 2010, the applicant won a trip to San Francisco, after having sold more than $900,000.00 in merchandise in 2009.

5On June 11, 2010, the applicant was disciplined by her employer. The applicant was advised that three complaints had been made against her by her peers for bossing behaviour, taking sales away from others, giving away discounts to customers outside of the provided guidelines, following and watching other sales staff, yelling and embarrassing staff in front of customers, and working off the clock. Working off the clock is punching off the time clock to go on break and then returning to the sales floor to work while on break. Managers complained that the applicant argued, yelled and refused to follow their instructions. The applicant was advised that these complaints violated either policy, procedure or the code of business conduct.

6The applicant received a final written warning dated June 11, 2010 and was given the following directions regarding her future job performance:

• You will participate with your fellow sales associates in sales guidelines training which will outline expected behaviors for all sales associates. You will then be expected to follow the guidelines and will be held accountable to them.
• You will not approach cashiers, sales support associates, or non-sell associates if you have an issue or a problem. You will instead discuss your issue with the LOD (leader on duty) and allow them to follow up.
• You will not interfere in others sales or offer them any unsolicited comments in front of their customers.
• You will go on break when instructed to do so. You will stay off the sales floor when not working on the clock or shopping for yourself.
• You will follow policy and procedure when it comes to customer discounts or coupons.
• You will respect all leaders equally regardless of their age or tenure and will follow their instruction when asked to do so.
• You will speak to others in a tone that is respectful.
• Failure to follow the actions listed above will result in further disciplinary action up to and including termination.

Although the applicant refused to sign the final written warning, there is no question that she received it.

7The day after the written warning, the applicant wrote to Steve Stickel, the Senior Vice President of Banana Republic, and complained about how the company dealt with an alleged assault against her by a co-worker in December 2009. This complaint was also made in the Application and was addressed in the Tribunal’s earlier Interim Decision. In this correspondence, the applicant alleged that she was being discriminated against on the basis of her race due to the excessive monitoring of her behaviour, the construction of differences of opinion between staff as confrontational or insubordinate behaviour, the characterization of normal communication from racialized staff as rude or aggressive and the punishment of racialized staff for failing to get along with others without recognizing the reason for the conflict was the racially discriminatory attitudes and behaviour on the part of the non-racialized staff.

8The applicant filed her Application with the Tribunal on July 8, 2010. In the Application, she refers to the final written warning of June 11, 2010 and makes similar allegations of discrimination that were made to Steve Stickel on June 12, 2010. Banana Republic received notice of the Application from the Tribunal by letter dated August 24, 2010.

9In August 2010, Banana Republic had a sales incentive program called Wednesday Purchaser and Thursday Non-Purchaser Bounceback. Customers who made a purchase on certain Wednesdays in August received 40% off coupons to be redeemed on August 25, September 1, September 8 and September 15, 2010. Customers who shopped on specific Thursdays in August, but did not purchase anything, received 40% off coupons to be redeemed on September 2, September 9 and September 16, 2010. The coupons were handed out from August 2 to August 16, 2010 and from August 8 to August 24, 2010. The distribution of coupons ended on August 24, 2010 and all remaining coupons were to be destroyed.

10On September 9, 2010, the Customer Experience Manager of the applicant’s store, Monica Moura, notified the Senior District Manager, Angela Mercey, that the applicant had handed out multiple discount coupons to customers on September 8 and 9, 2010, after the expiry of the distribution date for the Bounceback program. Around the same time, it came to the attention of management that the applicant had worked off the clock on September 9, 2010.

11Angela Mercey investigated the allegations that the applicant had contravened the terms of her final written warning. She interviewed the applicant on September 15, 2010. The applicant denied handing out discount coupons on September 8, but admitted to handing out a couple of coupons on September 9, 2010. The applicant asserted another employee, Vivienne, had also handed out coupons on that day. The applicant also stated the Bloor Street and Eaton Centre Banana Republic stores were handing out coupons on September 9, 2010. With respect to working off the clock, the applicant stated she had been given permission by Sylvia Dziedzic to work during her break on September 9, 2010. After the meeting, Angela Mercey was advised that a customer had called the store on September 15, 2010, looking for the applicant because she had promised to give the customer 40% off coupons that day.

12On September 16, 2010, the applicant was placed on a paid suspension pending the completion of an investigation into her conduct at work, specifically, giving away discount coupons outside of the provided guidelines, working off the clock, and refusing to follow instructions/ insubordinate behaviour.

13Angela Mercey reviewed a written summary of the store video tapes for September 9, 2010 as part of her investigation into the allegation that the applicant had worked off the clock on that day. The summary showed that the applicant had worked off the clock for approximately ten minutes while her manager, Sylvia Dziedzic, was on break.

14Angela Mercey instructed Banana Republic’s loss prevention staff to review the video tapes for the Bloor Street and Eaton Centre Banana Republic stores for September 9, 2010. The tapes did not show discount coupons being handed out by those stores on that date.

15Angela Mercey asked Sylvia Dziedzic to investigate the allegation that Vivienne Steffensen handed out discount coupons on September 9, 2010. Sylvia Dziedzic determined that Vivienne Steffensen had given out discount coupons on that day.

16On September 21, 2010, the applicant’s employment was terminated for violating the terms of the final written warning. On September 23, 2010, Vivienne Steffensen received corrective action for handing out discount coupons on September 9, 2010. Ms. Steffensen was advised that further violation of the discount coupon policy would lead to termination.

ANALYSIS

17The applicant argues the corporate respondent’s decision to terminate her employment was in reprisal for filing her Application pursuant to section 8 of the Code. Section 8 states:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act, and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.

18To prove reprisal, the applicant must establish that the corporate respondent terminated her employment in retaliation for claiming or enforcing her rights under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation of the Code, the applicant must establish the decision to terminate her employment was made with the intention to retaliate against her. See Noble v. York University, 2010 HRTO 878. For the reasons that follow, I am unable to find the termination of the applicant’s employment was a form of reprisal under the Code.

19On June 11, 2010, the applicant received a final written warning for substandard job performance. The applicant was given an action plan and was advised that failure to follow the plan would result in further disciplinary action against her up to and including termination. The action plan provided clear direction regarding following company policy on customer discounts and coupons, and not working off the clock. The warning was issued before the applicant asserted her human rights internally with Steve Stickel on June 12, 2010 and before she filed her Application with the Tribunal on July 8, 2010.

20The applicant’s employment was terminated on September 21, 2010. The issue before the Tribunal is whether the applicant’s employment was terminated in reprisal for her claiming and enforcing her human rights. The corporate respondent states the applicant’s employment was terminated because she breached the terms of the final written warning. The applicant challenges this assertion by claiming the rules set out in the written warning were not consistently applied and the corporate respondent’s reliance on her breach was a pretext to justify the retaliatory termination.

21The applicant does not dispute that she worked off the clock on September 9, 2010 and handed out discount coupons on that day. Nor does she dispute that this conduct was contrary to the terms of the final written warning. She simply states she was not the only associate that gave out coupons and that her manager, Sylvia Dziedzic, had given her permission to work off the clock.

22During the hearing, there was some confusion on the part of Sylvia Dziedzic regarding the terms of the Bounceback program and whether coupons could be given out and redeemed on the same day. Ms. Dziedzic appeared to be unaware that the discount coupons could not be handed out after August 24, 2010. It is somewhat disconcerting that the applicant’s own manager was confused about how the discount coupon program worked. That being said, there is no evidence that the applicant did not understand how the program operated. At no time did the applicant assert that she did not understand that she should not have been giving out coupons on September 9, 2010. Her only claim was that other employees were also doing it.

23The applicant is correct that she was not the only sales associate who handed out discount coupons on September 9, 2010. Vivienne Steffensen also handed out coupons that day and she received a final written warning for doing so. Vivienne Steffensen was not terminated because it was the first final written warning that she had received.

24The applicant is also correct that Sylvia Dziedzic gave her permission to work off the clock on September 9, 2010. Ms. Dziedzic admitted that when she returned from break she gave the applicant permission to finish helping a customer. The applicant would not have needed permission unless she was supposed to be on break. However, the applicant started working off the clock when Ms. Dziedzic was on break. She could not have obtained permission from Ms. Dziedzic when she was not even in the store. Assuming the applicant asked permission to continue working with a customer immediately upon Ms. Dziedzic’s return from break, the applicant worked off the clock for approximately ten minutes without permission.

25The applicant has failed to establish that the rules around giving out discount coupons and working off the clock were not consistently applied. Vivienne Steffensen received a final written warning for handing out discount coupons outside of the distribution period. The applicant asserts she often worked at home and therefore worked “off the clock”. Working from home is not the same as working during a required meal or rest break. The final written warning clearly states the applicant was required to go on break when instructed to do so and to stay off the sales floor when not working on the clock. It applied when the applicant was working at the store, not when she was working at home.

26As testified by Angela Mercey, there are important reasons for the rules regarding working off the clock and abiding by the terms of the discount coupon program. A failure to follow the rule regarding working off the clock may put the employer in breach of the Employment Standards Act. Breaching the terms of the discount coupon program interferes with the relationship between staff. If one sales associate solicits customers through the unauthorized use of coupons, it impacts all staff. It also has a detrimental impact on customer relations if some customers are receiving discount coupons and others are not. I accept the evidence of Angela Mercey on this point.

27The applicant has failed to establish that the corporate respondent intended to reprise against her because of her internal human rights complaint and her Application to the Tribunal. The applicant’s employment was terminated because she was in breach of the final written warning. The final written warning was issued before the applicant claimed her human rights. The applicant was warned that if she breached the terms of the final written warning, further disciplinary action would result, including possible termination. The applicant was an incredible sales associate with a volume of sales unsurpassed by her colleagues. She was not an employee the corporate respondent would have wanted to give up. The corporate respondent terminated her employment because her conduct was serious and in direct contravention of the final written warning. The applicant’s breach of the final written warning was not used by the corporate respondent as a pretext to retaliate against her. For these reasons, the reprisal claim is dismissed. As a result of this finding and the earlier Interim Decision 2012 HRTO 1026, the Application is dismissed.