Tekyi-Annan v. 2191214 Ontario Inc., 2013 HRTO 1947

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Efia Tekyi-Annan

Applicant

-and-

2191214 Ontario Inc. (o/a OPA! Souvlaki of Greece)

Respondent

DECISION

Adjudicator: Ruth Carey

Date: November 25, 2013

Citation: 2013 HRTO 1947

Indexed as: Tekyi-Annan v. 2191214 Ontario Inc.

APPEARANCES

Efia Tekyi-Annan, Applicant

Self-represented

2191214 Ontario Inc. (o/a OPA! Souvlaki of Greece), Respondent

George Karandat and Ashvin Sahgal, Representatives

Introduction

1This is an Application filed 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.

2In the spring of 2011 the applicant was 19 years old and a first-year student at York University. She was also five months pregnant although her pregnancy did not show. In addition to attending school, the applicant worked part-time at McDonalds. McDonalds would not offer students full-time hours so the applicant wanted additional work to make more money and to accumulate enough hours to be eligible for maternity benefits from Employment Insurance. On April 4, 2011, the applicant started work part-time as a team member in the respondent restaurant located in a shopping plaza in Maple. Team members prepare food, take and fill orders, collect payment, and clean up. The respondent terminated the applicant’s employment shortly after it started. Her last day of work was April 19, 2011.

3The applicant asserts that she was fired from her employment with the respondent because she was pregnant. The Application also alleges the applicant was not given a promotion due to her pregnancy.

4The respondent’s position is that the applicant’s employment was terminated because she refused to do the job duties her supervisor asked her to do one day, and because there had been an earlier incident of lateness. With respect to the issue of promotion, the respondent’s position is that the applicant was still in her probationary period when she was terminated and was not eligible for promotion.

5The disputed issues in this Application are factual ones. The parties and their witnesses offer conflicting testimony, and one key witness for the respondent repudiated material facts contained within his own prior written statement. So the primary task for the Tribunal on this Application is assessment of credibility. The question that must be decided is: was the applicant’s pregnancy a factor in the respondent’s decisions with respect to promotion or termination of employment?

6Having considered all of the evidence before me, I conclude there was no promotion withheld or granted so the applicant’s pregnancy was irrelevant with respect to that issue. However, I am satisfied that it is more likely than not that the applicant’s pregnancy was a factor in the respondent’s decision to terminate her employment and therefore find the respondent breached section 5(1) of the Code. The applicant is entitled to compensation for injury to dignity, feelings and self-respect in the amount of $10,000 and the respondent is directed to ensure that all of its owners/operators, store managers, key holders and those with supervisory responsibilities take the on-line Human Rights 101 course offered by the Ontario Human Rights Commission at www.ohrc.on.ca.

7The Application as originally filed named two personal respondents, Amy Santokhi and Doug Hibberd. At the beginning of the hearing the parties agreed the personal respondents should be removed as parties so I have amended the style of cause accordingly. At various points in this Decision I refer to prior written statements made by Ms. Santokhi and Mr. Hibberd. This reference is to the Responses they filed as personal respondents; both of them attached signed statements to their Responses.

8The hearing was held on August 6 and 7, 2013. The applicant testified and called as witnesses: Shabana Rahaman, Comella Burke, and Max Zimmerman. The respondent called: George Karandat, Doug Hibberd, and Amy Santokhi.

FINDINGS OF FACT

9It is undisputed the applicant originally applied to work at the respondent restaurant in January of 2011 but nothing apparently came of that application.

10One of the applicant’s best friends is Shabana Rahaman. She was offered a supervisory job by the respondent; when she decided to turn it down, the respondent’s store manager, Amy Santokhi, asked Ms. Rahaman if she knew anyone looking for work and she recommended the applicant to her.

11Ms. Santokhi interviewed the applicant sometime in mid-March, 2011, and offered her a job. During the course of that interview, nothing was said about the applicant’s pregnancy. They talked about a number of topics including the hours of work that the applicant was available for, whether or not there would be any conflict with the applicant’s job at McDonalds, when the applicant’s exams would be finished for the term, and the applicant’s experience. The applicant may have met George Karandat that day shortly after she accepted the job offer made to her by Ms. Santokhi. Mr. Karandat is the area manager and Ms. Santokhi’s direct supervisor.

April 11, 2011

12The evidence of the witnesses concerning what happened during the short period of the applicant’s employment with the respondent differs considerably, starting with the events of April 11, 2011.

13The reason why what happened on April 11, 2011 is important is because the respondent claims that it terminated the applicant’s employment in part because of her lateness that day. Based on the evidence before me I am satisfied that the respondent and the applicant actually agreed in advance that she would arrive late so it was not an event warranting discipline. However, I am also satisfied that the applicant arrived much later than the respondent expected.

14The respondent routinely creates a written work schedule and posts it on the refrigerator door the week before. If a worker cannot work their regularly assigned shift, then it is his or her responsibility to find someone to cover for them among the other employees. The work schedules entered into evidence all say:

NO SCHEDULE CHANGES UNLESS APPROVED BY GEORGE (NO LEE-WAY)

15According to the applicant, at some point prior to the schedule being posted for the week of April 11, 2011, she told Ms. Santokhi that she could not work on Monday, April 11, 2011. This was because she already signed up and paid for a “crew outing” for that day with McDonalds. Crew outings are social events; the one on April 11, 2011, involved a trip to a bowling alley.

16When the work schedule was posted the week prior to April 11, 2011, it showed the applicant working from 5 p.m. to 10 p.m. that day. The applicant states that when she saw the schedule she reminded Ms. Santokhi she was not available to work that shift; Ms. Santokhi apologised and said something to the effect of “oh well, I guess I’ll have to work from opening to closing”. The applicant felt sorry for Ms. Santokhi so she told her that she would leave her crew outing early and help close. The applicant did leave her crew outing early and the parties agree that the applicant arrived at the respondent restaurant at 8:30 p.m.

17The applicant also filed into evidence at the hearing an unsigned statement from a friend named Tricia Crawford that was not disclosed to the respondent in advance of the hearing. Ms. Crawford was at the McDonalds crew outing with the applicant. Because the respondent consented to it being entered into evidence, I accepted the statement but explained to the parties that as it had not been disclosed in advance and as Ms. Crawford could not be questioned under oath, the statement was hearsay and in the normal course would be given little evidentiary weight. It is dated August 4, 2013, which was two days prior to the hearing before the Tribunal and says in part:

Efia informed me that she had already paid to go to the crew outing before she got the job at OPA! but didn’t know what to do because she had been asked to work that day although she was not scheduled at OPA! She later told me that she had worked it out with her boss and that she would go to the event for a bit and return to work later. On the day of the event Efia did just that the event was at a bowling ally [sic] in Markham and Efia stayed for a little bit and then left earlier than she said she was going to because she hadn’t realized how far the actual bowling ally [sic] was from where she was working.

18Ms. Santokhi states that the applicant never told her prior to April 11, 2011, that she could not work that day. Instead, around lunch time the applicant called her and informed her she was going to be late because of a mandatory meeting related to her other job. Ms. Santokhi believed that meant the applicant might be half an hour late, not three and a half hours late.

19Based on the evidence before me I find that the applicant did tell Ms. Santokhi about the crew outing in advance of the schedule being posted. I am also satisfied that when the schedule was posted and the applicant reminded Ms. Santokhi of their earlier conversation, Ms. Santokhi and the applicant agreed that the applicant would work the shift but arrive late and Ms. Santokhi would cover for her until she arrived.

20I say this primarily because within days of this incident of lateness, Ms. Santokhi spoke to the applicant about the possibility of promoting her to shift leader after her three-month probationary period ended. According to Ms. Santokhi, she did this because she believed the applicant was intending to work for some time with the respondent. She states she planned to ask Mr. Karandat if the applicant would be eligible to be a shift leader after her probation.

21If it is true that the applicant failed to tell the respondent in advance of the schedule being posted that she could not work on April 11, 2011, but instead called in unexpectedly a few hours before her scheduled shift to say she would be late, it is unlikely that the respondent would be talking to her about the potential for future advancement within days of such an incident. Showing up three and a half hours late for a shift with only a few hours’ notice one week into a new job is not conduct that normally leads almost immediately to talk of promotion. Absent some other explanation as to why the prospect of promotion was raised so soon after April 11, 2011, I am satisfied that Ms. Santokhi’s discussion with the applicant about future opportunities is more consistent with the applicant’s version of events: Ms. Santokhi simply forgot the applicant told her in advance not to schedule her that day and then agreed to cover for her absence.

22However, I am also satisfied that the applicant arrived at work considerably later than Ms. Santokhi expected and the applicant was aware of that.

23I say this for a number of reasons. The applicant did not testify as to what the agreement was regarding her anticipated time of arrival. Ms. Santokhi testified that when she talked to the applicant about the fact she would be late for her shift, nothing was said about what time the applicant expected to arrive. As a result, I accept that the agreement between Ms. Santokhi and the applicant did not include a specific anticipated arrival time for the applicant. Rather, it would appear the agreement was that the applicant would get there as soon as she could. Ms. Santokhi assumed the applicant would only be about a half hour late as that is consistent with her experience of what happens when someone says they will be late.

24The statement of Ms. Crawford says: the applicant left the crew outing earlier than she said she was going to because she hadn’t realized how far the bowling alley was from where she was working. Although the statement is hearsay and not to be given much weight as evidence, it was tendered by the applicant so I believe it is appropriate to consider it when it seems contrary to the applicant’s interests. The statement essentially states that the applicant misjudged how long it would take to get from the crew outing location to the respondent restaurant, which tends to support the statement of Ms. Santokhi that the applicant arrived later than expected.

25According to Ms. Santokhi, when the applicant arrived three and a half hours later than scheduled, she told the applicant that degree of lateness was not acceptable and the applicant indicated it would not happen again. This is consistent with the evidence of Mr. Karandat, who testified that Ms. Santokhi called him and told him the applicant was late that day. The applicant states that the respondent never said anything about lateness. Because of the subsequent discussion about promotion, I accept that her being late was not considered to be a significant event; but it seems unlikely that nothing was said about it at all given that Ms. Santokhi was expecting the applicant to arrive much earlier than she did.

Disclosure of the Applicant’s Pregnancy

26The applicant essentially takes the position that how Ms. Santokhi and Mr. Karandat reacted to learning she was pregnant supports her allegation that the termination of her employment a few days later was related to her pregnancy. According to the applicant, Ms. Santokhi reacted by telling the applicant Mr. Karandat would be very upset at learning she was pregnant; and Mr. Karandat reacted by accusing her of being devious and trying to ruin his business. Both Ms. Santokhi and Mr. Karandat deny these allegations of the applicant.

27Based on the evidence before me, I am satisfied that the applicant was reluctant to disclose her pregnancy and feared the reaction would be negative. As to the conflict in the parties’ evidence with respect to how Ms. Santokhi and Mr. Karandat reacted to her disclosure, the evidence is insufficient to establish that it is more likely than not that they reacted the way the applicant says they did.

28It is uncontested that the applicant first disclosed her pregnancy in the workplace to a supervisor named Mihaela Fogarasi. This probably occurred on April 7, 2011. The applicant asked Ms. Fogarasi not to tell anyone else about her pregnancy and Ms. Fogarasi agreed. She told the applicant she should not feel uncomfortable disclosing her pregnancy and recommended she tell Ms. Santokhi as she would be understanding.

29The applicant then disclosed the fact of her pregnancy to Ms. Santokhi. The parties agree this disclosure occurred, but disagree as to when it happened and what was said.

30According to the applicant, on Sunday, April 17, 2011, she was working with Ms. Santokhi when Ms. Santokhi stated that the respondent was looking for a shift leader. She explained to the applicant that it would require more hours and more pay. The applicant knew that she would be going on maternity leave in about three months so she decided it was necessary to disclose the fact of her pregnancy to Ms. Santokhi. The applicant states Ms. Santokhi was shocked by her disclosure and repeatedly said “George is going to kill me” which the applicant understood to mean that Mr. Karandat was going to be upset on learning of her pregnancy. The applicant states that she believed from observing Mr. Karandat’s behaviour that he was going to react negatively to news of her pregnancy. The applicant then asked Ms. Santokhi to tell Mr. Karandat about her pregnancy on her behalf. Ms. Santokhi declined to do as the applicant asked and told her that Mr. Karandat would have more respect for the applicant if she told him herself.

31Ms. Santokhi states that she learned the applicant was pregnant on Friday, April 15, and not April 17, 2011. As stated above, it is her evidence she raised the shift leader position with the applicant because she thought the applicant would be working for the respondent for a period of time and she was going to ask Mr. Karandat if the applicant would be eligible for promotion to shift leader after her probation period ended. As her pregnancy meant she would need time off, Ms. Santokhi states she told the applicant she was going to have to speak to Mr. Karandat and inform him of her pregnancy. Ms. Santokhi denies saying “George is going to kill me” or anything that would lead the applicant to believe that Mr. Karandat would be upset to learn of the applicant’s pregnancy.

32During her testimony, Ms. Santokhi did not deny or acknowledge the applicant asked her to tell Mr. Karandat about her pregnancy on the applicant’s behalf. However, Ms. Santokhi’s Response to the Application says:

She then told me she was pregnant. And need time off after just working with use [sic] for a few weeks. I then told Efia that I have to let George know, she then said no. Asked if she wants to tell George or should I. Told her to tell George that day or I will have to. [Emphasis added.]

33Given the applicant’s uncontested evidence that she not only made Ms. Fogarasi promise to keep the pregnancy secret but asked Ms. Santokhi to disclose it to Mr. Karandat on her behalf, I am satisfied that the applicant was reluctant to disclose her pregnancy to Mr. Karandat and nervous about how he would react.

34With respect to the issue of whether or not Ms. Santokhi told the applicant that Mr. Karandat would be upset to learn of her pregnancy, the testimony of Comella Burke is relevant.

35Ms. Burke is a friend of the applicant’s. She worked for the respondent restaurant at the same time as the applicant and for a period both before and after the applicant’s employment. It is her evidence that after the applicant disclosed her pregnancy to the respondent, Ms. Santokhi told her that Mr. Karandat was upset that the applicant was pregnant and wanted to fire her but did not know how to go around it.

36At the hearing, Ms. Santokhi was asked if she remembers talking to Ms. Burke about the applicant’s pregnancy. Her reply was simply no. I took this to mean that it is Ms. Santokhi’s evidence that she never talked to Ms. Burke about the applicant’s pregnancy at all. The only other substantive remark Ms. Santokhi made in her evidence about Ms. Burke was that after the applicant filed this Application, Ms. Burke commented to her the respondent should never have hired the applicant. This latter remark was not put to Ms. Burke during her cross-examination so she was never given an opportunity to deny it. As a result, I place no importance on it.

37Based on the evidence before me, I find there is insufficient evidence to conclude that it is more likely than not that Ms. Santokhi told the applicant Mr. Karandat would be upset about the applicant’s pregnancy. The applicant and Ms. Santokhi were the only participants and witnesses to their conversation that day and there is no supporting or surrounding evidence that supports or refutes either’s credibility with respect to their conversation. Even if I accept Ms. Burke’s evidence that Ms. Santokhi said on a different occasion that Mr. Karandat was upset over the applicant’s pregnancy that does not mean that Ms. Santokhi said something to that effect to the applicant on this earlier occasion. As a result, I am not prepared to find that it is more likely than not that Ms. Santokhi told the applicant Mr. Karandat would be upset on learning of her pregnancy.

38Both the applicant and Mr. Karandat testified that within hours of the applicant’s conversation about her pregnancy with Ms. Santokhi, she spoke to him and informed him she was pregnant.

39According to the applicant, when she spoke with Mr. Karandat about her pregnancy he was visibly upset and asked her why she did not disclose it during the interview process. It was her evidence that he repeatedly mentioned he would have to look up stuff, figure it out and get back to her, and accused her of deceiving him and his company.

40Mr. Karandat disputes the applicant’s evidence concerning what was said when the applicant disclosed her pregnancy to him. He says that on Friday, April 15, 2011, the applicant told him she was pregnant. According to him, the reason he knows this occurred on April 15 and not April 17, 2011, is because April 17, 2011, was a Sunday and he is never in the restaurant on Sundays.

41With respect to the date of the applicant’s disclosures of her pregnancy to Ms. Santokhi and Mr. Karandat, I accept the evidence of Ms. Santokhi and Mr. Karandat that the applicant’s disclosure of her pregnancy to them occurred on April 15 and not April 17, 2011 as the applicant states.

42As the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, states at para. 11:

…a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

43In my experience this is particularly true with respect to dates. Unless a date is memorable because it is tied to some significant event like a birthday or anniversary, it is very common for witnesses to be honestly mistaken about dates. Mr. Karandat’s testimony that he does not work on Sundays is the kind of extraneous memory aid that makes it easier to remember a date. As a result, I believe it is more likely that his memory of the date is more accurate than the applicant’s and the conversation between them occurred on April 15, 2011, and not April 17, 2011. That being said, the malleability of memory and the common difficulty people have remembering dates means that I am not prepared to find the applicant’s mistake in this regard damaging to her credibility; it is possible she is just honestly mistaken about the date.

44Mr. Karandat states the applicant told him she was pregnant while standing in the pass through door between the kitchen and restaurant within ear shot of customers. He also says the restaurant’s owner, Ashvin Sahgal, was present that day and they decided Mr. Karandat should speak with the applicant further about her pregnancy to ask if she could do all of the duties of her job or needed accommodation. With Mr. Sahgal present, he asked the applicant if she could lift up to 40 pounds, as the heaviest thing in the restaurant was 40-pound bags of rice, and if she would be returning after her maternity leave, to which she answered yes. He also asked her if she was aware of how many hours of work she needed to be eligible for employment insurance maternity benefits because he was aware that the hours she was scheduled to work for the respondent would be insufficient.

45According to Mr. Karandat, he also told her during this conversation that the schedule that had just been posted for the following week contained an error and he did not need her to work on the following Saturday, April 23, 2011, after all. The applicant specifically denies this was said and claims that shift was not cancelled until her employment was terminated. This is discussed more fully below.

46Mr. Karandat also says he mentioned the episode of lateness on the Monday of that week but cannot recall what the applicant said in reply. Mr. Karandat says the reason he recalls so many details of this conversation is because he recorded it in his day timer, but the notes were not disclosed to the applicant or entered into evidence before me.

47The respondent argues that Mr. Karandat’s version of the conversation that occurred with the applicant when she disclosed her pregnancy is more credible than the applicant’s because there was no reason for Mr. Karandat to be upset. This argument is based on the fact that the respondent had experienced a similar disclosure with regards to another employee in the past, and that person remained employed and returned to work after her maternity leave.

48On January 29, 2010, the respondent hired the woman referred to above. At that time she was 20 or 21, and unmarried. Three weeks after she started working for the respondent she discovered she was pregnant and disclosed that to the respondent. According to Mr. Karandat, she was three weeks into her pregnancy when she disclosed it to him. She worked until July 30, 2010, and returned from maternity leave on August 15, 2011. If Mr. Karandat’s evidence in this regard is accurate then this other employee stopped working when she was about seven months pregnant. Mr. Karandat states that towards the end of the period this other employee was working prior to going on maternity leave, she experienced some limitations on her ability to do the work due to her pregnancy and her work schedule was reduced.

49During the hearing the applicant speculated that she was perceived differently by the respondent from this other pregnant employee because the applicant is black, unmarried, and very young. The applicant’s bald assertions in this regard are unsubstantiated. The evidence with respect to this other employee is that she was also very young and unmarried so there was no substantive difference between them with respect to age and marital status. The respondent described this other employee as being Russian. Assuming without finding this means she was not black, there is no evidence before me that suggests the applicant was treated differently because of her race. As race is not a ground pled in the Application it is not open to the Tribunal to make a finding that the alleged differential treatment between the applicant and the other pregnant employee was in part because of the applicant’s race; but even if the applicant had included race as a grounds for discrimination in her Application, the allegation would be dismissed as unfounded as there is no evidence to support it.

50However, Mr. Karandat’s evidence with respect to the other pregnant employee establishes that she did not work up to her due date and towards the end needed a reduced work schedule. In light of that experience, it would not be surprising if Mr. Karandat was upset on discovering he had just hired someone who was only three and a half months away from her due date. It would be reasonable for him to believe the applicant was going to be on maternity leave within weeks of being hired and perhaps before she was even fully trained or finished her probationary period. The hiring and training of new employees represents an investment of resources for any business, so the prospect of a new hire leaving within weeks of her start date is not likely to be welcome news to an employer. This concern is reflected in Ms. Santokhi’s Response quoted above in paragraph 32 of this Decision in which she specifically references the possibility the applicant would need leave within weeks of starting with the respondent. It would also not be surprising if he was concerned about potential accommodations the applicant might need as that occurred in the previous instance.

51Therefore, the respondent’s evidence with respect to the prior employee who became pregnant does not necessarily support the conclusion the respondent offered the evidence for; namely, that its prior experience shows it is unlikely the respondent would be upset at the applicant’s disclosure of her pregnancy. Rather its evidence arguably supports the opposite conclusion; the respondent had reason to be upset because the applicant’s pregnancy was well advanced and its previous experience was that problems arise in late pregnancy.

52However, just because the respondent’s argument does not hold up when the facts are examined, does not mean that the applicant’s evidence with respect to how Mr. Karandat reacted to her disclosure is more credible than his. Absent some other evidence or testimony with respect to what was said between them that day, I am not prepared to find that Mr. Karandat was upset at the applicant’s disclosure of her pregnancy or disparaged her for failing to disclose it at the time she was hired. In other words, the evidence is simply insufficient to support a finding that the applicant’s version of events that day is more likely than the respondent’s.

The Events of April 19, 2011

53What happened on April 19, 2011, is central to the issues in this Application and the credibility of the parties. The respondent relies on its version of the events of that day as a non-discriminatory explanation for the applicant’s termination.

54It is the respondent’s position that it decided to terminate the applicant’s employment because she refused to do the tasks assigned to her during her shift on April 19, 2011. Given the earlier incident of lateness, the respondent felt termination of employment was appropriate. April 19, 2011, was the applicant’s last day of work for the respondent. The respondent says the applicant’s employment was terminated that day by Mr. Karandat during an in-person meeting that occurred at the end of her shift.

55It is the applicant’s position that she did not refuse to do tasks assigned to her on April 19, 2011, but acknowledges there was conflict in the workplace that day; she argues the respondent is essentially using what happened as a convenient excuse to cover up the fact that the respondent fired her because of her pregnancy. The applicant also says her employment was not terminated on April 19, 2011, but a few days later via text from Ms. Santokhi and confirmed by telephone call from Mr. Karandat.

56For the reasons stated below, I find that the applicant did not refuse to do assigned tasks on April 19, 2011; rather, she stood up for herself in the face of criticism; disclosed her pregnancy to Mr. Hibberd when asking for help moving boxes and completed moving all of the boxes on her own when Mr. Hibberd refused to assist her; complained to Ms. Santokhi about Mr. Hibberd’s rudeness to her; and took a break she was entitled to when permission was refused. I am also satisfied that her employment was not terminated that day as the respondent claims; rather a conversation took place with Mr. Karandat that led the applicant to reasonably believe her employment was going to be terminated, which is exactly what happened a few days later.

57It is undisputed that shortly after the applicant disclosed she was pregnant to Mr. Karandat and Ms. Santokhi, she worked a closing shift with Mihaela Fogarasi. That was on Monday, April 18, 2011. They did not have time to finish all of their closing duties, which included things like cleaning up and doing dishes. Ms. Fogarasi was the key holder and had to leave on time to catch the bus, so that meant the applicant had to leave as well.

58On the morning of Tuesday, April 19, 2011, Doug Hibberd, a supervisor employed by the respondent, arrived at the restaurant at 9 a.m. and discovered closing the night before had not been properly completed. The applicant’s shift started at 10 a.m. The applicant and Mr. Hibberd were the only employees in the restaurant until 3 p.m. Their evidence as to what occurred during that shift differs significantly.

59According to the applicant, when she started work that day Mr. Hibberd was upset and repeatedly complained about the fact that extra work had to be done because closing had not been completed properly the night before. It was her evidence that he returned to this theme so often that eventually she said to him he should stop complaining about it because nothing would change the fact it was not done. This irritated Mr. Hibberd further.

60At some point a meat delivery arrived and boxes were left in the kitchen. According to the applicant, Mr. Hibberd told her to put the boxes away, which she proceeded to do. As he was doing light work while she was putting boxes away, the applicant asked him if he would help her with the boxes. When he declined to do so she told him she was asking for his help because she was pregnant. He made a remark to the effect “why did you have to go and get pregnant” and asked the applicant how far into her pregnancy she was. When she told him she was six months pregnant he again refused to help her with the boxes. He essentially said his wife’s pregnancy had taught him that she was not at risk at that stage of pregnancy. The applicant finished putting the boxes away by herself.

61It was the applicant’s evidence that Mr. Hibberd continued to complain about the previous day’s closing, so she told him she had to go to the bathroom and made a telephone call on her cell phone to Ms. Santokhi. There is no dispute between the parties that the applicant told Ms. Santokhi that Mr. Hibberd was being rude and harassing. There is also no dispute that at no time during this call did the applicant mention her pregnancy or say that Mr. Hibberd was forcing her to do tasks that she could or would not do. Ms. Santokhi’s testimony corroborates the applicant’s with respect to this phone call, which ended with her essentially telling the applicant to go back to work and she would deal with Mr. Hibberd.

62Mr. Hibberd testified that on April 19, 2011, he opened the restaurant and discovered closing had not been properly done the night before. However, he denied being upset by this and states he was unaware that the applicant was one of the employees who had not closed properly. He denies badgering the applicant about the work not being done the previous night on closing. It is his evidence that when he asked the applicant to do certain tasks she said no and that her attitude was unbearable. According to him, he asked the applicant to help clean up by doing the dishes and washing the area where prepared vegetables are kept, but she refused and instead insisted on cutting vegetables. He also states that when the meat order arrived, he asked her to assist him in putting the boxes away but she would not, so he did it by himself. It is his evidence that the applicant said she did not have to listen to his directions, he was just another worker; and if he continued to tell her what to do she was going to leave. He claims her behaviour was such that customers asked him what the problem was and he replied that he did not know and apologised for the applicant’s behaviour.

63Sometime after the lunch rush Mr. Hibberd got a telephone call from Ms. Santokhi, who asked him how things were going working with the applicant. This was the telephone call Ms. Santokhi made to follow up on the applicant’s complaint about Mr. Hibberd’s behaviour. He told her that the applicant was being insubordinate by refusing to do tasks as assigned and had threatened to walk out.

64According to the applicant, after she called Ms. Santokhi, Mr. Karandat came into the restaurant. This would have been around 1 p.m. He told her he wanted to speak to her at the end of her shift and asked her when that would be. She told him her shift ended at 3 p.m. that day. He did some work involving inventory and left. Neither Mr. Hibberd nor Mr. Karandat disputed this evidence of the applicant in their testimony so I accept that it is true.

65The next thing that happened involved the applicant taking her break. According to the applicant, after Mr. Karandat did inventory and left, Mr. Hibberd’s antagonistic behaviour continued. So she decided to take the break she was entitled to even though it was busy. When she returned, Mr. Hibberd’s behaviour was unchanged. On cross-examination it was put to the applicant that she simply decided to go on break when she wanted to. She responded by saying that when she asked Mr. Hibberd for her break he refused because it was busy in the restaurant. She then told him that she knew the law, she was entitled to her break, and her shift was ending so she was going to take her break. Mr. Hibberd denied telling the applicant not to take her break.

66I accept the applicant’s evidence with respect to her taking her break on April 19, 2011, over that of Mr. Hibberd. I say that because of other evidence offered by the parties detailed below.

67With respect to breaks, it was the uncontested evidence of Ms. Santokhi that because the applicant was working a five-hour shift on April 19, 2011, she was entitled to a break of 30 minutes. Workers are not supposed to take breaks during rush times which are 11 a.m. to 1 p.m. and 5 p.m. to 8 p.m. As the applicant’s shift started at 10 a.m., this means there was a relatively short window between 1 p.m. and 3 p.m. when she should have taken her break.

68The applicant and her witnesses who worked for the respondent (Comella Burke and Max Zimmerman) all testified that there were conflicts in the workplace concerning breaks. I took their evidence to mean that conflict arose because if there were only two people scheduled to work and one took a break, the other was left alone to do all the work, which could be onerous. As a result, workers were sometimes pressured not to take breaks. They also offered vague references to conflict over whether or not hours of pay were calculated accurately when breaks were not taken. Both Mr. Karandat and Ms. Santokhi deny workers were ever told not to take their break or that breaks were missed and not paid for.

69Based on all of the evidence before me, I accept the applicant and her witnesses’ testimony in this regard and find that taking breaks was a contentious issue that caused friction in the workplace and that there were problems calculating hours worked for pay purposes. I say this because of two documents provided by the respondent.

70The first document is the work schedules for the period April 4, 2011 to April 24, 2011. As is the case for April 19, 2011, the schedules show a number of instances where only two employees were present in the workplace during the lunch rush period. For example, this occurred on April 5, 6, 9, 10, 11, 12, 13, 14, 16, 18, 20, and 21. If only two employees are present and one takes a break, the other employee is left alone to do all of the work serving customers, taking orders, filling the order, collecting payment and keeping order in the workplace. That situation would likely lead to resentment towards a colleague taking a break. As everyone was in the same position with respect to breaks when only two people were scheduled to work, it seems probable that an atmosphere would develop discouraging workers from taking their break.

71The second document is the applicant’s record of employment (“ROE”) which states that the applicant worked a total of 38 hours during her employment with the respondent. This does not match the schedules provided by the respondent, which show the applicant worked 43 hours during the same period. With respect to the schedules, Mr. Karandat testified that as the week progresses corrections and changes are made by hand on the schedule itself. So after the week ends the schedule is an accurate record of the number of hours each employee worked. The schedule is then sent to an outside accounting firm and used for payroll purposes. If this is true then the respondent’s schedules should match the applicant’s ROE in terms of number of hours worked, but they do not. This internal inconsistency in the respondent’s records supports the evidence of the applicant and her witnesses that there were problems with respect to the respondent’s tracking of hours worked.

72During the course of his testimony before me Mr. Hibberd stated that sometime after he spoke with Ms. Santokhi, the applicant told him she was pregnant during their shift together on April 19, 2011, but her pregnancy was unrelated to her refusal to do tasks. This testimony was a surprise as prior to the hearing Mr. Hibberd had filed and delivered a Response to the Application which included a signed statement that said in part:

She told me that she could not help me with anything that day and that I was on my own because she was pregnant. She then continued to tell me all she could do was to take the cash…

Things didn’t go very well at all that day with her because every time I asked her to do something she would tell me that she couldn’t do it because she was pregnant…

I believe Efia was using it as an excuse not to do the job she was hired to do.

73Because the parties were unrepresented, I put Mr. Hibberd’s prior written statement to him, and asked him to identify it as his statement, which he did. With the parties’ consent, I then entered it into evidence and asked Mr. Hibberd for an explanation as to why his testimony differed from his prior signed statement. His only reply to this query was that his prior statement was incorrect. I put to Mr. Hibberd the truism that a written statement made closer in time to the event in question is likely to be more accurate than a later recollection of events and he simply denied that was the case here.

74Absent some substantive explanation as to why Mr. Hibberd’s prior written statement differs so markedly from his testimony concerning the applicant’s behaviour and what was said between them regarding her pregnancy on April 19, 2011, I am not prepared to accept his testimony on these points as credible.

75That being said, there is one aspect of the applicant’s evidence that is also not credible; namely, that she was never trained to do cash.

76In Mr. Hibberd’s Response to the Application, he states that the applicant refused to do any tasks except taking cash. In her Reply, the applicant says this is not true as she was never trained to do cash and her testimony at the hearing was consistent with that statement in her Reply. Mr. Hibberd was not present in the room during the applicant’s testimony and he testified after she did. Mr. Hibberd now claims the applicant refused to do anything except prepare vegetables and his prior written statement saying she refused to do anything except cash is a mistake.

77Max Zimmerman was one of the applicant’s witnesses. He knows the applicant from high school and he worked for the respondent for about 8 months. His employment with the respondent overlapped the brief period of employment of the applicant. He states that he worked shifts at the same time as the applicant and saw her working on cash. The work schedules entered into evidence were shown to Mr. Zimmerman on cross-examination. When it was pointed out to him that the schedules do not show any instances when he was working during the same time as the applicant, he replied that the schedules had to be mistaken. He also says that all team members are trained on all aspects of the job, including cash.

78Ms. Santokhi also states that team members are trained on all aspects of the job. She says she personally trained the applicant on how to do cash.

79One of the documents entered into evidence by the respondent is entitled “1^st Impressions”. It is a job description that the applicant signed when she was hired. It describes the applicant’s job as a cashier and details the tasks a cashier is expected to do. The only reference to non-cash related duties in the applicant’s job description is as follows:

During the nightly clean-up the cashier is required to complete their section of the nightly cleaning checklist. In addition to this the on shift manager may ask them to do other tasks. The cashier is required to help in any way so that the store is completely cleaned properly.

80Based on all of the evidence before me I am satisfied that it is more likely than not that the applicant was trained on cash and her evidence to the contrary is not credible. I say this for a number of reasons.

81First, although it was undisputed that team members at the respondent’s restaurant were actually required to do all aspects of the work, the applicant’s job description supports the conclusion that doing cash was a central task. In that context it seems unlikely she would not have received some training on cash during the two weeks she worked for the respondent.

82Second, the applicant was scheduled to work alone with Mr. Hibberd on April 19, 2011. It was undisputed that Mr. Hibberd was entitled to take a break of 45 minutes during his shift that day as it ran from 9 a.m. to 6 p.m. The applicant’s shift ended at 3 p.m. If the applicant was untrained on cash, she would not have been able to cover for Mr. Hibberd taking a break, so as long as there were customers it would have been impossible for him to step away for even a very brief trip to the bathroom until after 3 p.m. Although it is possible that was what happened, it would have been a significant hardship for Mr. Hibberd and it seems unlikely to me that he would not have commented on it either in his prior statement or his testimony at the hearing.

83Third, the applicant’s own witness, Mr. Zimmerman, refuted her evidence that she was never trained on cash. The conflict between his testimony and the work schedules entered into evidence may mean that Mr. Zimmerman is not a credible witness, but given the inconsistencies between the respondent’s work schedules and the applicant’s ROE described above, it may well be that Mr. Zimmerman was correct in stating the work schedules contain mistakes. Mr. Zimmerman presented himself at the hearing as an affable young man eager to help support the applicant’s case. As his evidence corroborates Ms. Santokhi’s statement that the applicant was trained to do cash, I accept it as supportive of that proposition.

84This raises the following question: if the applicant is not credible with respect to her statement that she was never trained on cash, and Mr. Hibberd is not credible with respect to what happened between himself and the applicant during her last shift on April 19, 2011, what actually happened between them that day?

85The answer to that question lies partly in the evidence of Ms. Santokhi. There is no dispute between the parties about the applicant’s phone call to Ms. Santokhi complaining about Mr. Hibberd’s being rude. During the hearing I asked Ms. Santokhi to speculate as to why the applicant would call her to complain about Mr. Hibberd’s behaviour if in fact it was the applicant who was misbehaving by being insubordinate. She declined to speculate but does agree that it seems odd. She also says that when Mr. Hibberd told her the applicant was refusing to do tasks, she was surprised because the applicant was not like that working with her.

86In assessing the evidence before me and the credibility of the parties I am guided by Faryna v. Chorny, above, at paras. 10-11 which says:

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility...

The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [Emphasis added.]

87It seems unlikely to me that that the applicant would essentially sneak into the bathroom to call the store manager to complain about Mr. Hibberd’s behaviour if she was actually being insubordinate and refusing to do tasks. If that were the case it would be contrary to her best interest to draw Ms. Santokhi’s attention to the situation. The improbability of the applicant doing that, combined with Ms. Santokhi’s admission that she was surprised to hear allegations of insubordination leveled against the applicant, support the conclusion that the applicant is telling the truth about what happened between herself and Mr. Hibberd on April 19, 2011.

88Further, Mr. Hibberd’s contention that the applicant sought to avoid tasks is also inconsistent with the applicant’s behaviour after her employment was terminated.

89As stated above, the applicant worked at McDonalds both before and during her employment with the respondent. While the applicant was employed with the respondent she applied for a third part-time job at Wal-Mart. Her plan was to work one day a week at McDonalds, and part-time with both the respondent and Wal-Mart up to her due date of July 31, 2011.

90Wal-Mart did a mass interview and hiring process in April of 2011 because it was opening a new store. The applicant was hired at that time but did not start work until May 26, 2011, as the store was not ready. It did not open until early in July, 2011. For the period between May 26, 2011, and the store opening the applicant was required to wear a hard hat on the job and do manual tasks that involved substantial lifting such as putting in shelving and setting up cash. She entered into evidence her record of employment from Wal-Mart which shows she worked up until July 24, 2011. She also continued to work at McDonalds until mid to late July. Her son was born on July 28, 2011. After her maternity leave the applicant went back to work at both McDonalds and Wal-Mart in the spring of 2012. Therefore, the applicant’s behaviour after her termination with the respondent is not consistent with either Mr. Hibberd’s written description of the applicant as someone who avoids work or his testimony.

91Based on all of the evidence before me, I am satisfied that the applicant’s evidence with respect to what happened during her last shift on April 19, 2011, is more credible than that of the respondent. I come to this conclusion despite my finding above that the applicant is not credible with respect to her statement that she was never trained on cash. It is not uncommon or even unusual for a trier of fact to accept part of a witness’s testimony but not all of it. See for example: Shah v. George Brown College, 2009 HRTO 920 at para. 22; Loomba v. Home Depot Canada, 2010 HRTO 1434 at para. 17; Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 at para. 54; and Macan v. Strongco, 2013 HRTO 841 at para. 81. I would also observe that whether or not the applicant was trained on cash is collateral to the issues in this Application, while the question of her alleged insubordination on April 19, 2011, is central to the respondent’s position.

92I am satisfied that on April 19, 2011, the applicant never refused to do tasks assigned to her. Rather, she objected to Mr. Hibberd’s repeated complaints about closing the night before; asked for his help moving boxes because she was pregnant, which he refused to give; complained about his behaviour to Ms. Santokhi; and took the break she was entitled to even though Mr. Hibberd refused his consent.

93The next evidentiary conflict that arises between the parties with respect to the events of April 19, 2011, concerns the applicant’s meeting with Mr. Karandat at the end of her shift. According to the applicant, Mr. Karandat chastised her for not disclosing her pregnancy earlier, said he was not sure what he was going to do about it, and that he would make a decision by that coming Saturday, which was April 23, 2011. According to the respondent, it was during this meeting that the applicant was told her employment was terminated due to the insubordination that had occurred that day coupled with the lateness incident of April 11, 2011. For the reasons stated below, I am satisfied that the applicant’s employment was not terminated on April 19, 2011, as the respondent claims; and therefore the applicant’s version of her conversation with Mr. Karandat is more likely than the respondent’s.

94After speaking with Mr. Hibberd, Ms. Santokhi called Mr. Karandat about her conversations with the applicant and Mr. Hibberd. According to Ms. Santokhi, she reported to him how they were behaving and that there was tension in the workplace. She says she told him the applicant was refusing to do tasks and she raised the issue of terminating the applicant’s employment.

95In contrast, Mr. Hibberd states that when Ms. Santokhi called him and he described the applicant’s behaviour to her, she said she would talk to the applicant first and then discuss it further with him. He spontaneously stated in his evidence that this was typical of Ms. Santokhi as she liked to hear both sides. During her testimony, Ms. Santokhi used identical language stating she liked to hear both sides. At the hearing I pointed out to her that according to her evidence she did not speak to the applicant after hearing Mr. Hibberd’s allegations of insubordination; that means the applicant was never given an opportunity to reply to them, so Ms. Santokhi did not in fact hear both sides. I asked her for an explanation as to this difference between her alleged behaviour on April 19, 2011, and her normal practice of hearing both sides and she offered no explanation beyond acknowledging the observation was correct.

96Mr. Hibberd also states that he and Ms. Santokhi did discuss the applicant further after his shift, which ended that day at 6 p.m. They then decided together to recommend to Mr. Karandat that the applicant’s employment be terminated, which he believes they did the next day, or possibly later the same day of April 19, 2011. On cross-examination he was again asked when the decision to terminate was made. He reiterated he thought that it occurred the next day but he could not remember and it might have happened on April 19, 2011.

97Mr. Karandat testified that just prior to the end of the applicant’s shift, he received a telephone call from Ms. Santokhi, who said to him the applicant was refusing to do tasks and threatening to walk out. He was not told she was refusing tasks because of her pregnancy. He states that Ms. Santokhi then recommended the applicant’s employment be terminated, to which he replied hang on a second, let me first call the employment standards branch and human rights. He says he calls employment standards branch routinely prior to terminating an employee for a second opinion, and he called human rights in addition on this occasion because of the applicant’s pregnancy. After getting these second opinions, he called Ms. Santokhi back and said the respondent was going to proceed to terminate the applicant’s employment.

98The applicant testified that at the end of her shift she had a discussion with Mr. Karandat. Mr. Karandat acknowledges a conversation occurred at this time but disputes the applicant’s version of what was said. According to the applicant, Mr. Karandat said something to the effect of, “what did you think you were going to gain by not telling us you were pregnant”, “do you know how many hours you need to take maternity leave” and “do you plan to take the full year of maternity leave”. It is her evidence that Mr. Karandat started yelling at her, accusing her of hurting his business, saying she should have disclosed during the interview and knew she was being devious in not doing so. The applicant told him she was not required to disclose her pregnancy during the interview and did not plan on taking the full year of maternity leave but rather intended to return to work as soon as school ended the following April. According to the applicant, Mr. Karandat stated she would not get the hours she needed for maternity benefits, that he had spent the day before calling places like the labour board to find out if she had done something wrong, she should go home and he would make a decision about her employment on Saturday, April 23, 2011, her next scheduled shift. The applicant essentially accused him of planning to fire her, and speculated the only reason he was waiting to do it until Saturday was because of the difficulties inherent in getting someone to cover her shift that day. He replied that he was not necessarily going to fire her, but rather he needed time to think about it. Sometime towards the end of this conversation, the applicant says the owner, Ashvin Sahgal, sat down with them but said nothing.

99Mr. Karandat’s testimony about his conversation with the applicant on April 19, 2011, was very brief. He states that he told her the reasons for her termination being insubordination on April 19, 2011, and the lateness incident of April 11, 2011; and that the applicant understood.

100I accept the evidence of the applicant over that of the respondent’s witnesses with respect to her conversation with Mr. Karandat on April 19, 2011, because the evidence of the respondent’s witnesses does not match as to how and when the decision to terminate the applicant was reached and does not constitute a coherent narrative.

101According to Ms. Santokhi, she decided and did recommend termination to Mr. Karandat after speaking to Mr. Hibberd following the lunch rush which ends at 1 p.m. According to Mr. Hibberd, the decision to terminate the applicant’s employment was made by himself and Ms. Santokhi together after his shift finished at 6 p.m. and after Ms. Santokhi had an opportunity to hear both sides by speaking to the applicant again, which Ms. Santokhi says did not happen. According to Mr. Hibberd, only then was their recommendation communicated to Mr. Karandat.

102Mr. Karandat tells a third story: the decision was reached near the end of the applicant’s shift and only after he had called the employment standards branch and human rights. However, it was the uncontested evidence of the applicant that Mr. Karandat had come into the restaurant prior to that time (at about 1 p.m.), told her he wanted to speak to her at the end of her shift, left, and then returned later at 3 p.m. No explanation was offered by the respondent as to what Mr. Karandat wanted to speak to the applicant about the first time he was in the restaurant; but if any of the respondent’s witnesses are to be believed it could not have been about terminating the applicant’s employment as according to them that decision was reached well after the lunch rush.

103As a result of the conflicting evidence of the respondent’s witnesses with respect to how and when the applicant’s employment was terminated, I find them to be less credible than the applicant in this regard and I accept that the applicant was not told her employment was terminated by Mr. Karandat on April 19, 2011. Given that was not the topic of their conversation and my finding above that the applicant was not insubordinate that day as alleged by the respondent, I also accept the applicant’s testimony as to what was actually said when she spoke with Mr. Karandat on April 19, 2011.

Subsequent Events

104After the applicant’s conversation with Mr. Karandat, she states she was greatly upset and she started to cry. She called her boyfriend and went over to see him to talk about it. She knew it was wrong to fire her because of pregnancy so she called the Human Rights Legal Support Centre and asked for advice. It advised her to write a letter to Mr. Karandat stating he was not permitted to terminate her for reasons related to her pregnancy and if he did so, she would pursue legal action. The applicant did not do this because a few days later, possibly on Thursday, April 21, 2011, she received a text message from Ms. Santokhi informing her that April 19, 2011, was her last shift with the respondent and not to come in for the shift scheduled for April 23, 2011. Mr. Karandat also called the applicant and said: as you believe you are going to be fired anyway, do not bother coming in on Saturday. Mr. Karandat denies this latter conversation occurred and states that in 30 years he has never terminated someone’s employment over the telephone.

105The applicant testified that she and Ms. Santokhi exchanged texts up until May 11, 2011. Ms. Santokhi was very apologetic and said she did not want the applicant to be fired. The applicant believed she was entitled to pay in lieu of notice so she requested two weeks’ notice and Ms. Santokhi said she would speak to Mr. Karandat, which the applicant assumes she did. She then told the applicant that as a probationary employee of less than three months she was not entitled to any notice or pay in lieu. The applicant says she also requested a letter of termination but was not given one. According to the applicant, she lost the phone on which these texts were written so could not produce them or file them into evidence. Ms. Santokhi denies having any contact with the applicant after April 19, 2011.

106Although nothing in this Decision turns on this dispute between the parties about the events that occurred after April 19, 2011, I am satisfied that the applicant’s version is more likely than that of the respondent’s. I say this because the applicant’s behaviour prior to and on April 19, 2011, is consistent with a person who is very interested in rights and entitlements and will stand up for them. The applicant insisted on taking her break on April 19, 2011, even though Mr. Hibberd did not want her to because she believed it was her right. Similarly, she knew she did not have to disclose her pregnancy during the hiring process. This interest in and focus on rights as demonstrated by the applicant’s behaviour indicates to me that it is more likely than not that after April 19, 2011, she would have continued in the same vein. It also seems unlikely to me that the applicant would fabricate testimony about making a mistake as to her rights: she asked for pay in lieu of notice and only later learned she was not entitled to it. So I accept her evidence that she had contact with the respondent after April 19, 2011, was fired in the manner she describes, requested a letter of termination and pay in lieu of notice and did not receive them.

107The final event that is relevant to this Application occurred on May 3, 2011, when the respondent issued the applicant a record of employment. In the box for “reason for issuing this ROE” the respondent entered “K” code. Under comments, the respondent wrote:

COULD NOT PERFORM DUTIES THAT SHE WAS HIRED TO DO.

ANALYSIS

108Sections 5(1), 9, and 10(2) of the Code read as follows:

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.

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

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.

109In Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court explained what an applicant must establish to prove discrimination (at para. 33):

…to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

110As explained in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), at para. 28, a prima facie case of discrimination “is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour, in the absence of an answer from the respondent”. The three elements of the prima facie test are: is the applicant a member of a group protected by the Code; was she subject to adverse treatment; and was her pregnancy a factor in the alleged adverse treatment. See: Shaw v. Phipps, 2012 ONCA 155 at para. 14.

111In this Application there is no dispute between the parties that the applicant was pregnant and that her employment was terminated. This means that with respect to the decision to terminate the applicant’s employment, the key question to be decided is whether or not the applicant’s pregnancy was a factor in the respondent’s decision. However, the Application also alleges that the applicant was denied a promotion because of her pregnancy. With respect to that issue the second element of the test is relevant; namely, was the applicant subject to adverse treatment with respect to promotion?

The Promotion Allegation

112It is not entirely clear from the Application on what basis the applicant alleges she was denied a promotion. It was also not clear at the hearing.

113At one point during the hearing the applicant seemed to be taking the position that she was entitled to be in a key holder’s supervisory role right from the beginning of her employment, as she was hired in place of Ms. Rahaman who had been offered that position. That proposition is not sustainable on the evidence. The respondent’s hiring package signed by the applicant includes a job offer and a job description. Those documents make it clear the applicant was offered and accepted a position as a regular team member at a team member’s rate of pay. There was no expectation on the part of either party that the applicant was being hired for a key holder or supervisory role.

114The only evidence at the hearing with respect to promotion concerned the discussion on April 15, 2011, between Ms. Santokhi and the applicant about whether or not the applicant might be interested in being a key holder at the end of her three-month probation. No evidence was led that would indicate the applicant was eligible for promotion prior to the end of her probationary period. Further, no evidence was led to indicate anyone was promoted from team member to a supervisory or key holder role instead of the applicant during the period of her employment. As the applicant’s employment was terminated prior to the end of her probation period, the issue of promotion never came up again.

115Based on the evidence before me I am satisfied that the applicant was never denied a promotion by the respondent. This means the applicant did not experience adverse treatment with respect to promotion and she has not demonstrated the second part of the three-part test for a prima facie case. Therefore, the allegation of discrimination in the Application with respect to being denied promotion is dismissed.

The Termination Allegation

116The applicant led sufficient evidence at the hearing to satisfy all three parts of the prima facie test, including the third criteria that her pregnancy was a factor in the decision to terminate her employment. For the reasons stated above I am satisfied that the applicant’s version of what was said by Mr. Karandat at the end of her shift on April 19, 2011, is more credible than the evidence of the respondent. He chastised her for not disclosing her pregnancy during the hiring process, told her he was not sure what he was going to do about it, and that he would make a decision about her continuing employment by that coming Saturday, April 23, 2011. Her employment was then terminated. That is sufficient to satisfy the requirements of the applicant’s prima facie case.

117Once an applicant has led sufficient evidence to make out a prima facie case, the onus shifts to the respondent to establish a non-discriminatory reason for the adverse behaviour in question. As indicated earlier in this Decision, the respondent relies on the assertion that it terminated the applicant’s employment because she refused to do tasks during her shift on April 19, 2011, and because of the incident of lateness of April 11, 2011.

118The primary difficulty with the respondent’s non-discriminatory explanation for the applicant’s termination is that the evidence does not support a finding that the applicant refused to do tasks assigned to her on April 19, 2011, as alleged by the respondent. Absent that finding, there is no non-discriminatory explanation for the applicant’s employment being terminated. The lateness incident of April 11, 2011, occurred prior to the applicant’s disclosure of her pregnancy and was not considered to be grounds for termination at the time. Therefore, that incident cannot constitute a non-discriminatory explanation for her employment being terminated on its own. There must have been something more. In the absence of a credible alternative explanation, I am satisfied that the applicant’s pregnancy was a factor in the respondent’s decision to terminate the applicant’s employment and find the respondent in breach of the Code.

119That being said, both parties were self-represented so I have considered alternative explanations for the respondent’s dismissal of the applicant that are suggested by the evidence.

120For example, it may be Mr. Hibberd lied to the respondent and did in fact tell Ms. Santokhi the applicant was refusing to do tasks when she was not. Given how the applicant defended herself against Mr. Hibberd’s complaints and insisted on taking her break when he refused permission, Mr. Hibberd may have been motivated to lie to the respondent out of dislike for the applicant’s failure to be subservient. Or it may be that he told them the truth and Ms. Santokhi and Mr. Karandat did not want to employ someone who might disrupt the workplace by insisting on her rights. In either case, the theory does not explain the inconsistencies in the respondent’s evidence with respect to when and how the termination of the applicant’s employment occurred. It also does not explain the ROE which says the termination was because the applicant could not do the tasks required of the job.

121None of the respondent’s witnesses offered an explanation for the contents of the ROE. It is more consistent with the conclusion that the respondent felt the applicant could not do the tasks required of the job because of her pregnancy.

122It is also possible the applicant did refuse to do certain tasks as a result of her pregnancy on April 19, 2011, as originally claimed by Mr. Hibberd in his Response; and it was only after the Application was filed that the respondent realised that it should have asked the applicant for medical documentation supporting her limitations prior to terminating the applicant’s employment. I would observe that this theory is supported by the Response filed by the respondent which says the applicant “did not provide a doctor’s note regarding her limitations for work”. The ROE would also make more sense in this context. The difficulty with this alternative theory is that it is not a non-discriminatory explanation for the applicant’s termination. Further, given the applicant’s work history following her dismissal by the respondent it seems unlikely she would refuse to do tasks because of her pregnancy.

123Given all of the above, the Application succeeds.

REMEDY

124The Application requests as remedies: the amount of $10,852.86 for lost wages, and monetary compensation for injury to dignity, feelings and self-respect; and an order requiring the respondent’s employees to undergo human rights training at the respondent’s expense.

125The evidence is insufficient to support a finding of lost wages. With respect to compensation for injury to dignity, feelings and self-respect, $10,000 is awarded as a reasonable amount. The respondent is ordered to ensure that all of its owners/operators, store managers, key holders and those with supervisory responsibilities complete the on-line Human Rights 101 course offered by the Ontario Human Rights Commission at www.ohrc.on.ca.

The Lost Wages Claim

126As stated above, it was the evidence of the applicant that prior to being hired by the respondent the applicant worked part-time at McDonalds. Her plan was to get sufficient additional part-time jobs to make up enough hours so that she would be eligible for maternity benefits from Employment Insurance when her baby was born. Shortly after starting her employment with the respondent, the applicant found a third part-time job with Wal-Mart. However, that job did not start until May 26, 2011. The applicant continued to work at both McDonalds and Wal-Mart until shortly before giving birth. She did accumulate enough hours for maternity benefits and she returned to both part-time jobs the following spring when her benefits were exhausted.

127The difficulty with the applicant’s claim for lost wages is that no evidence was led as to how many hours the applicant worked at McDonalds prior to and after the applicant’s employment with the respondent. As a result, it is possible she picked up enough shifts to offset the loss of her employment with the respondent. The applicant’s ROE from Wal-Mart suggests she worked on average 15 hours a week during the period prior to her maternity leave. But because no evidence was led as to how many hours she worked at McDonalds during that period it is uncertain if she would have worked more hours or not if the respondent had not terminated her employment. As a result, the evidence is insufficient to establish a wage loss amount.

128Further, no evidence was led by the applicant as to a job search for a third part-time job for the period after April 19, 2011, up to her baby’s birth; or in the spring of 2012 when she returned to employment after her maternity leave. Absent this type of evidence that speaks to the issue of mitigation, I am not prepared to award an amount for lost wages.

Compensation for Injury to Dignity, Feelings and Self-Respect

129Section 45.2 of the Code says in part:

45.2 (1) On an application under section 34, 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.

130As the wording of s. 45.2(1)1 indicates, monetary awards under the Code are compensatory in nature and not punitive. The intention is that an applicant will be put back into the position he or she would have been in but for the discriminatory act. See: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) at para. 150.

131Lane, above, also says at para. 153:

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

132With respect to the impact on the applicant of the respondent’s conduct, the applicant testified that the impact was emotional. She cried and the experience caused her stress and worry over whether or not she would be able to accumulate enough hours for her maternity leave. She did not experience physical symptoms and her pregnancy was uncomplicated.

133As is indicated in Lane, above, there is no fixed formula for the Tribunal to follow to assess a monetary compensation award (at para. 157), there is no limit to the amount that can be awarded, and the quantum must not be set too low because that would “trivialize the social importance of the Code” (at para. 152). In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated at para. 51:

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…

134In Graham v. 3022366 Canada Inc., 2011 HRTO 1470, the Tribunal awarded $20,000 for compensation for injury to dignity, feelings and self-respect. In that case the applicant was employed in a job that she had been, by all accounts, performing competently for several years. The employer refused to schedule her for shifts because it was of the view her pregnancy was essentially a disability because of the nature of her job duties. She lost all of her sources of income as a result of the respondent’s actions, had to resort to Employment Insurance benefits earlier than she otherwise might have done, and received maternity leave benefits at a lower rate and for a shorter period. None of these elements are present in the instant case.

135In Maciel v. Fashion Coiffures, 2009 HRTO 1804, the Tribunal awarded $15,000 for compensation for injury to dignity, feelings and self-respect. Some of the facts in Maciel are similar to those in this Application. For example, the applicant’s employment was very short-lived; the events in that case took place over a matter of two days. She was young and experiencing her first pregnancy. However, the applicant in Maciel suffered from depression after she was terminated, she had no source of income at all and had to depend on her parents, and others, to purchase the equipment and accessories for the upcoming birth of her child. She was unsuccessful in finding alternative employment so was not eligible for maternity benefits. Moreover, her enjoyment of her newborn son was tempered by the fact that she had no income other than the monthly Canada Child Tax Benefit. She felt compelled to seek employment during a time she would normally have received maternity benefits and been able to remain off work. Her ability to spend this time with her newborn son was curtailed by her financial situation.

136More similar to the applicant’s case is that of Guay v. 1481979 Ontario, 2010 HRTO 1563. In Guay the applicant’s employment was terminated after 20 days of employment. The evidence of impact was fairly minimal but similar to that of the applicant here. In Guay the evidence was the applicant felt very sad and stressed after her employment was terminated; she was young, vulnerable and shocked by the actions of her employer; she did not receive any medical treatment or counseling in respect of the effects of the loss of her employment. The Tribunal ordered the respondent in Guay to pay $10,000 to the applicant for compensation for injury to dignity, feelings and self-respect.

137Given all of the above, I am of the view $10,000 is an appropriate amount to award the applicant for compensation for injury to dignity, feelings and self-respect.

Non-Monetary Remedy

138Section 45.2(1)3 of the Code permits the Tribunal to make:

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.

139The applicant requests an order requiring the respondent to train all of its employees in human rights to ensure a similar situation does not occur in the future. This is a reasonable request. Given that team members seem to come and go with the respondent fairly quickly, the order will be limited to the owners/operators, store managers, key holders and those with supervisory responsibilities. Neither the applicant nor the respondent offered any suggestions as to who should do this training or when. The Ontario Human Rights Commission offers a suitable on-line course free of charge called Human Rights 101 available on their web-site at www.ohrc.on.ca. The respondent will be given six months to ensure all affected employees complete the course.

DECISION

140The Tribunal makes the following Order:

a. The Application is granted;

b. The respondent shall pay to the applicant $10,000 as compensation for injury to dignity, feelings and self-respect;

c. The respondent shall also pay to the applicant pre-judgment interest on the full amount due under paragraph b. above, for the period April 23, 2011, to the date of this Decision calculated pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;

d. The respondent shall also pay to the applicant post-judgment interest calculated pursuant to s. 129 of the Courts of Justice Act; and

e. Within six months of the date of this Decision, the respondent shall ensure that all of its owners/operators, store managers, key holders and those with supervisory responsibilities complete the on-line Human Rights 101 course offered by the Ontario Human Rights Commission at www.ohrc.on.ca.