HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
LaMoya Chyvonn Peart
Applicant
-and-
Distinct HealthCare Services Inc.
Respondent
DECISION
Adjudicator: Alan G. Smith
Indexed as: Peart v. Distinct HealthCare Services Inc.
APPEARANCES
LaMoya Chyvonn Peart, Applicant
Self Represented
Distinct HealthCare Services Inc., Respondent
Michael Suria, Counsel
BACkground
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of sex with respect to employment. Essentially the applicant alleges that on October 25, 2010, her employment was terminated because she was pregnant.
2In its Response filed December 31, 2010, the respondent says that the applicant was terminated due to work performance issues.
3The matter was heard on its merits before me on May 14, 15, and 16, 2012. Both parties participated in the hearing.
The evidence
Applicant
4The applicant began her employment with the respondent in September of 2009. Originally her job title was Human Resources Marketing Coordinator but in June of 2009 her duties were changed to that of Human Resources Recruiter.
5In March of 2010 the applicant became aware that she was pregnant. At that time she also informed her manager, Esther Isaacs, of that fact. The applicant testified that she also told Ms. Isaacs that the due date was November 27, 2010.
6The applicant admitted that she missed some work at the beginning of her pregnancy but that she at all times complied with company policy in that regard, i.e., that she notified the company of her inability to attend work at least two hours before her shift was to begin. She also stated that she did sometimes take naps during her breaks at work.
7The applicant also admitted she missed work due to attendance at appointments with her doctor. However, she asserted that she also complied with the employer’s policy in that regard i.e., giving at least one week’s notice of the absence.
8The applicant stated that in June 2010 Ms. Isaacs began to “micro-manage” the applicant’s work.
9The applicant recalled an incident which she alleged occurred on August 10, 2010. She stated that she was scheduled to go on a business trip. In a conversation with Ms. Isaacs prior to departing, Ms. Isaacs offered to buy maternity ware for the applicant. The applicant says she felt that Ms. Isaacs was making the applicant’s appearance, then noticeably pregnant, an issue.
10The applicant asserted that in mid-September 2010 Ms. Isaacs advised her that it would no longer be necessary to give written notice of up-coming medical appointments i.e., that verbal notification would suffice.
11The applicant testified that on the morning of October 22, 2010, she had a conversation with Ms. Isaacs in which the applicant informed Ms. Isaacs that she had a medical appointment scheduled for October 25, 2010, and hence would require that entire day off work. The applicant says that Ms. Isaacs responded by saying, “that’s fine, come back to work on the 26th”.
12The applicant advised that she had a meeting with Ms. Isaacs and the respondent’s Human Resources Manager William Snyder in the afternoon of October 22, 2010. The applicant alleged that Ms. Isaacs made the following comments to her during the course of that meeting:
you look tired, you seem like you don’t want to be at work anymore?
you’re not dressing professionally;
you are looking big;
you should take maternity leave early;
13The applicant testified that at the conclusion of the October 22nd meeting Ms. Isaacs advised her that she had changed her mind regarding the request to have the day off on October 25th. Ms. Isaacs now wanted the applicant to return to work after her medical appointment was concluded on the 25th. The applicant stated that the final mutual agreement between her and Ms. Isaacs was that the applicant would telephone the respondent’s office after her medical appointment to discuss with Ms. Isaacs whether or not she should to return to work that day.
14The applicant stated that, in the late morning of October 25, 2010 she telephoned the respondent’s office, but was informed that Ms. Isaacs was in a meeting. The applicant testified that sometime later in the day she again telephoned the office and left a message for Ms. Isaacs that she would not be able to return to work that day.
15The applicant stated that in the late afternoon of October 25, 2010, she received a voice mail message on her residence telephone from Ms. Isaacs asking her to return the call. When she returned the call, Ms. Isaacs requested that the applicant return the office keys that were in her possession. The applicant testified that she could not come to an agreement on where to meet Ms. Isaacs to hand her back the keys. The applicant said that Ms. Isaacs terminated the telephone conversation with the remark, “I don’t have time for this”.
16The applicant testified that in the early evening of October 25, 2010, Ms. Isaacs again telephoned her at her residence. In the course of the conversation Ms. Isaacs stated to the applicant, “I’m at the office processing your maternity leave…I think it would be best if you don’t come back to work…I’m processing your maternity leave early”. The applicant indicated that at this point in the conversation she asked “why?”. The applicant testified that Ms. Isaacs answered, “you didn’t get back to me re scheduling today…I’m not paying to babysit you”. The applicant responded, “I know my rights”, to which Ms. Isaacs responded, “you do whatever you think necessary, but don’t come back to work tomorrow”. The applicant says Ms. Isaacs then hung up the telephone.
17The applicant stated that on October 26, 2010, she telephoned the respondent’s office and spoke with a co-worker named “Lillian” who advised the applicant that Ms. Isaacs had told the staff person responsible for payroll to prepare a “Record of Employment” (“ROE”) for the applicant indicating maternity leave as the reason for the interruption of earnings. The applicant never returned to work for the respondent.
18The applicant testified that she did not begin looking for work until mid-October 2011. She secured new employment at the end of November 2011, earning $600 a week before deductions, approximately the same salary she had been earning while working for the respondent. However, the applicant advised that her hours were cut to approximately 50% in May of 2012.
19The applicant stated that she experienced depression before giving birth and was extremely anxious due to not having employment to return to after her maternity leave concluded.
20The applicant stated that she had planned to work right up to her due date. She gave birth on November 30, 2010.
21The applicant was cross-examined with regard to respondent’s Exhibit 7 which was a “Time Off Request Form” on the respondent’s letterhead dated September 29, 2010. The document reads, “…have to leave for doctor’s appointment @ 9:40 am. Will open office and leave at 9:15 am will return after appointment”. The applicant testified that even though the written request indicated that she would return after the medical appointment, Ms. Isaacs had advised her verbally, “to take the whole day off” which is what occurred. The applicant therefore denied that her absence in the afternoon of September 29th was unauthorized.
22Respondent counsel also introduced as Exhibit 9, an unsigned letter dated September 29, 2010, on the respondent’s letterhead purportedly written by Ms. Isaacs and directed to the applicant. The subject line of the letter reads “Time off Without Approval” and states in part:
This letter is a formal warning to you in response to your unexcused absence form work this morning. Although you were not given approval for time off today Wednesday September 29, 2010, you still took the time off any, [sic] not considering the consequences or condition you put the company in.
You were made aware of your request for time off not being approved because of the circumstances. You were asked if other alternative arrangements could be made in regards to your appointments in which you did not respond, and your request was not approved.
Because we would prefer not to have to terminate your employment, we encourage you to communicate clearly and directly and in advance with your manager at any time in the future that you cannot fulfil your employment obligations. If you require assistance due to special circumstances in your private life, please make an appointment to discuss these with your supervisor or someone in human resources so that we can make any reasonable arrangements or allowances that we can.
Today you left the office without informing anyone that you were leaving and you did not return four hours later.
A copy of this warning letter will be placed in your human resources file for future reference….
The applicant denied receiving the warning letter in September 2010 and testified that the first time she saw it was as an attachment to the Response to her Application.
23Also during the cross-examination the respondent introduced Exhibit 11, another letter addressed to the applicant and dated October 13, 2010. The creator of the letter is not indicated. It reads as follows:
You are receiving this written [sic] as a final warning for failure to comply with the company’s dress code policy. As discussed (in the past, recently, on such and such dates) it is expected that your work attire portray a professional and appropriate appearance as outlined in the dress code policy; especially for the position you hold you are interacting with the public.
This is important in order for the company to maintain a positive image with Fellow Office employees, Venders’ and Field Staff, and by not adhering to the dress code, other staff may perceive this as being appropriate behaviour.
I trust that you will take the necessary steps to comply with the dress code. It is your responsibility to make immediate changes as of tomorrow.
Failure to being your attire up to company expectations may lead to further disciplinary action including termination.
The applicant testified that, as with Exhibit 9, she did not receive the letter in October 2010 and first saw it in the Response.
24The applicant was questioned about another absence which occurred on October 13, 2010. The applicant testified that, although she had not made a request in writing, Ms. Isaacs had verbally approved it. The applicant also stated that Ms. Isaacs was aware that the absences were to attend medical appointments related to the applicant’s pregnancy.
25A further unsigned letter, purportedly from Ms. Isaacs, dated October 15, 2010, addressed to the applicant on the respondent’s letterhead entitled “Final Unsatisfactory Job Performance” was introduced by the respondent during the cross-examination of the applicant (Exhibit 12). The letter is lengthy, totalling thirteen paragraphs. It contains detailed criticisms of the applicant’s job performance and includes the following:
…On Friday October 15, 2010, during our most recent performance meeting, you agreed that you had not been productive and have not been working to your job description expectations. You said as of Monday October 18, 2010 you will put forth your best effort and increase your job performance that will surpass our recruitment expectations….As of now you are not performing and that is why we are at this meeting. All your previous promises have been broken. You also said that as of October 18, 2010, you will dress professionally and be part of the positive team environment in the office. This is another issue that I have been trying to get you to correct for months (despite my offer to personally give you money to purchase appropriate maternity ware).
The final sentence of the letter reads, “…I have no alternative but insist on your immediate resignation from your current Recruitment position”.
26The applicant denied that she met with Ms. Isaacs on October 15, 2012, stating that she was not in attendance at work on that day. She again advised that, as with Exhibits 9 and 11, the first time she had seen the letter was as contained in the Response. She reiterated that, as she had indicated in her testimony-in-chief, the meeting with Ms. Isaacs and Mr. Snyder to discuss performance issues took place on October 22, 2012, not on October 15th.
27The applicant was cross-examined with regard to a document (Exhibit 2) she had introduced during her examination-in-chief entitled, “Distinct HealthCare Services Inc. Performance Evaluation”. The document was dated February 24, 2010, and signed by both the applicant and Ms. Isaacs. The top of the form lists twelve “standards” and “indicators” of performance criteria. The document indicates that the applicant scored in the 90 – 100% range on all but one of the criteria. In the category of “agreement closures” was she marked as falling in the 80 – 90% range. Ms. Isaacs written comments contained in the document state:
I must say you have been a very good employee. You always played a key role in the day to day function and running of Distinct Health Care. Your way of dealing with the staff and fellow employees is very professional. I would just like to say thank you.
The document also advised that the applicant would be granted a pay raise. This increased the applicant’s weekly gross salary to approximately $600. However, it also noted that Ms. Isaacs felt that further training in “policy and procedure” were required. The applicant testified that Exhibit 2 was a valid reflection of the performance evaluation which occurred in February 2010.
28The respondent introduced a further five page document (Exhibit 13) also dated February 21, 2010, entitled “Distinct HealthCare Services Inc. Employee Self-Appraisal”. The applicant agreed that she had noted on the document that she believed she required improvement in, “utilizing time wisely/increase in productivity”.
29The applicant was questioned with regard to a discussion with Ms. Isaacs on August 24, 2010, with regard to problems the applicant had had in dealing with a client, the Saugeen Valley Nursing Home. The applicant testified, she did not recall the discussion.
30The applicant was further questioned regarding a complaint from a nurse contracted by the applicant in August 2010. The applicant again indicated she had no recollection of the incident.
31The applicant was vigorously cross-examined regarding the discussion with Ms. Isaacs on October 22, 2010, vis-à-vis the applicant’s medical appointment of October 25, 2010. The applicant, reiterating her examination-in-chief, denied that she had agreed to return to the respondent’s office. The applicant also denied that Ms. Isaacs had warned her on October 22nd that if she did not return to work on October 25th she, “would be fired”.
Kirk Walker
32Kirk Walker, the applicant’s husband, testified on the applicant’s behalf. He stated that he had observed that the applicant was very upset by the termination of her employment. He stated that the applicant was concerned that the loss of employment would have adverse consequences for her baby. He noted that she seemed depressed, cried a lot, lost her appetite and spent an usual amount of time in bed.
33In cross-examination Mr. Walker admitted that it was his understanding that the applicant had never sought medical assistance for depression.
Esther Isaacs
34Ms. Isaacs testified that she is the owner and general manager of the respondent corporation.
35Ms. Isaacs advised that she felt the applicant spent too much time with candidates during recruitment interviews. Nevertheless, she did provide the applicant with a raise in pay in February 2010.
36Ms. Isaacs testified that the applicant never confirmed that she was pregnant. Ms. Isaac testified that the applicant only explained the necessity of the numerous absences for medical appointments by saying she was “sick” and was under the care of an obstetrician-gynaecologist. However, Ms. Isaacs said she did hear from other staff that the applicant was pregnant and would not be returning after maternity leave. She admitted that she knew that the applicant’s medical appointments, including the one on October 25, 2010, were related to pregnancy issues.
37Ms. Isaacs also conceded that time off requests in writing were not determinative i.e., that sometimes the written requests were modified by verbal exchanges.
38Ms. Isaacs testified that she received complaints from other staff about the applicant’s clothing. She confirmed that she did offer the applicant assistance in purchasing maternity clothing.
39With regard to the letter dated September 29, 2010, addressed to the applicant, (Exhibit 9) Ms. Isaacs stated that, “if I type a letter I would have given it to her [the applicant], but I can’t specifically recall”.
40Ms. Isaacs testified that she also did not recall on what date she gave the warning letter of October 15, 2010, (Exhibit 12) to the applicant, but thought she may have given it to her on Monday, October 18th. She admitted that, notwithstanding the final sentence of that letter, the applicant had continued to do recruiting until the termination.
41When asked by her counsel why she continued to employ the applicant despite all the applicant’s performance deficiencies, Ms. Isaac stated, “my interpretation was that you could not fire a pregnant person”.
42Ms. Isaacs testified that the meeting with the applicant and Mr. Snyder took place on October 21, 2011. It was in a conversation the following day that the applicant agreed to return to work after her medical appointment on October 25, 2010.
43Ms. Isaacs’s testimony regarding the events of October 25, 2010, was essentially the same as the applicant’s. Ms. Isaacs recalled that she told the applicant during the telephone conversation that evening that, “you only think about yourself, its only about you…don’t bother coming back, you’re fired”. However Ms. Isaacs denied saying anything about maternity leave in the conversation.
44Ms. Isaacs testified that she could not explain why the ROE issued to the applicant after the termination indicated pregnancy, and not dismissal, as the reason for cessation of work. She advised that she had nothing to do with the preparation of the ROE and that it was Mr. Snyder who would have initiated the production of the document.
45Ms. Isaacs denied that the respondent’s pregnancy was a factor in the decision to terminate the applicant’s employment.
46The respondent produced a five page document entitled, “DHC Report Re: Lamoya Peart (Former Employee)” and had it marked as Exhibit 15. Ms. Isaacs explained that it was a document she prepared for counsel in preparation for the hearing of the Application. The document is essentially a chronology of the interaction between Ms. Isaacs and the applicant during the course of the applicant’s employment and outlines the deficiencies Ms. Isaacs perceived in the applicant’s job performance. I note with particular interest two paragraphs on page 4 of the document:
By the time it was my plan to relieve her of her duties, she announced to me she was pregnant and that is why she has not done anything much all week….
Since Lamoya’s pregnancy she no longer had any interest in work. She dressed inappropriately and unprofessional [sic] especially, for her position. This was discussed with her on several occasions; she was given warning verbally and in writing. (Her appearance was discussed by staff members amongst themselves) Lamoya paid no attention to warnings.
47I asked Ms. Isaacs to clarify what she meant by the statement, “Since Lamoya’s pregnancy she no longer had any interest in work”. She replied that, “if pregnancy was the reason for the applicant’s termination, the applicant would have been terminated much earlier”.
48I also asked Ms. Isaacs if she could explain the discrepancy between her testimony at the hearing and the version of events that was contained in the Response. In particular I drew her attention to two paragraphs contained on page 10 of the Response:
After the Applicant announced to the office that she was pregnant, her attendance at work fell to less than half. At the time when she did attend the office, her work never improved, and when she was asked to perform her duties she would often shout “I’m pregnant! I know my rights”! The Applicant was found several times sleeping on her desk, and she displayed constant insubordination and deliberate lack of productivity….
Distinct HealthCare is in dire financial trouble. The business requires effective employees, and literally cannot afford to employee people who refuse to do any work, let along employees who stall business efforts by neglecting to respond to prospective clients or perform their core duties. The Respondent’s intention was to offer the opportunity to the Applicant to take some time off to consider her options, which the Applicant has taken as an opportunity quit her job and falsely accuse the Respondent of bias. [emphasis added].
Ms. Isaacs responded that, “she never saw the Response before it was sent out by her lawyer”. She offered no explanation for the discrepancy between what she had stated in the Response and her present testimony with regard to the events of evening of October 25, 2010.
49Also, with regard to the events of the evening of October 25, 2010, Ms. Isaacs admitted that she was angry during the telephone conversation with the Applicant but again reiterated that the applicant’s pregnancy was not a consideration in the termination of the Applicant’s employment. Ms. Isaacs testified that, “she was just looking out for the business”.
William Snyder
50Mr. Snyder testified that he was hired by the respondent in the early summer of 2010, as human resources manager.
51Mr. Snyder stated that he had not witnessed the discussion between the applicant and Ms. Isaacs regarding what was to occur during the afternoon of October 25, 2010.
52He also testified that he had no knowledge as to how or why “pregnancy/parental leave” was indicated on the ROE issued to the applicant.
53Mr. Snyder further stated that the in June 2010, the applicant notified him that she was pregnant and would be taking maternity leave. Subsequently, Ms. Isaacs told him that the applicant would not be returning to work at the respondent after maternity leave.
54Mr. Snyder also testified that he had no knowledge regarding Exhibits 9,11, and 12, the three warning letters addressed to the applicant.
SUBMISSIONS
Applicant
55The applicant submits that I should find that her termination by the respondent violated the Code and therefore the respondent should be required to pay $20,000 in compensation for injury to the applicant’s dignity, feelings and self-respect. She cites the Tribunal decision Graham v. 3022366 Canada Inc., 2011 HRTO 1470 in support of that quantum.
Respondent
56The respondent argues that, if the applicant’s pregnancy was the reason for the termination, the respondent would have terminated much earlier i.e., there was no reason to wait until October 25, 2010.
57The respondent also submitted that Ms. Isaacs was inexperienced with human resources issues and hence did not provide letters or make appropriate notes when many disciplinary interviews were held with the applicant.
THE LAW
58The relevant sections of the Code are as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, 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.
10(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. R.S.O. 1990, c. H.19, s. 11 (1).
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. R.S.O. 1990, c. H.19, s. 11 (2); 1994, c. 27, s. 65 (1); 2002, c. 18, Sched. C, s. 2 (1); 2009, c. 33, Sched. 2, s. 35 (1).
45.2 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:
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.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
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. 2006, c. 30, s. 5.
59The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. It is also well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination. It is not necessary that discrimination be the sole or even the predominant reason for the termination for the Code to be infringed. See, Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 and Royal v. Optilinx Systems Inc., 2010 HRTO 2135. The applicant must, however, establish a nexus between the termination and the prohibited ground on which she relies. My job is therefore to determine whether Ms. Isaacs’ decision to terminate the applicant’s employment was tainted by impermissible consideration of the applicant’s pregnancy contrary to the provisions of the Code.
60Although the ultimate burden of proof is on the applicant, in many cases, such as the present one the respondent bares an evidentiary burden. This is because, once an inference of discrimination is made out by the applicant, it is the respondent’s burden to rebut that inference.
FINDINGS AND ANALYSIS
Credibility
61One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
…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 witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor 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 the 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 (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
62I also considered the factors identified by the Tribunal in Cugliari v. Telefficiency Corporationt, 2006 HRTO 7 and DeForest v. Brockton Farm Ltd., 2012 HRTO 1666: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.
63In my view, there is evidence before me which severely undermines Ms. Isaacs’ credibility and directs me to prefer the evidence of the applicant where it conflicts with that of Ms. Isaacs.
64There is the stark inconsistency between the portrayals of the applicant’s cessation of work as submitted in the Response versus Ms. Isaacs’ testimony at the hearing. As noted above, Ms. Isaacs stated in the Response, “The Respondent’s intention was to offer the opportunity to the Applicant to take some time off to consider her options, which the Applicant has taken as an opportunity quit her job and falsely accuse the Respondent of bias”. Ms. Isaacs unequivocally testified at the hearing that in her telephone conversation with the applicant on the evening of October 25, 2010, she told the applicant, “don’t bother coming back, you’re fired”. Ms. Isaacs offered no convincing explanation for the discrepancy.
65With regard to the “warning letters”, Exhibits 9, 10 and 11, I accept the applicant’s testimony that she did not receive these documents during the course of her employment i.e., that the first time she saw them was in the Response to the Application. I come to this conclusion, not only because of my decision to prefer the applicant’s testimony over that of Ms. Isaacs, but because of the lack of internal consistency and specificity with regard to the documents. Exhibit 9 is unsigned. Ms. Isaacs testified that she did not “specifically recall” when she gave the document to the applicant. Exhibit 11, which states it is a “final warning” is also unsigned. Moreover, the creator of Exhibit 11 is also not indicated. Even though Exhibit 12 catalogues extensive performance concerns, Ms. Isaacs testified that she could not recall on what date she gave Exhibit 12 to the applicant. Ms. Isaacs admitted that although Exhibit 12’s final sentence states, “…I have no alternative but insist on your immediate resignation from your current Recruitment position”, the applicant continued to do recruiting until the termination. Mr. Snyder, the respondent’s human resources manager, testified that he had no knowledge of Exhibits 9, 10 or 11. This is despite that fact that Exhibit 9 specifically states, “A copy of this warning letter will be placed in your human resources file for future reference” and Exhibit 12 notes at the bottom of its final page, “cc: Personnel File of Employee”.
66Even though I do not accept that Exhibits 9, 11 and 12 were given to the applicant during her employment, I do find that the documents were authored by Ms. Isaacs and hence can be used to determine Ms. Isaacs’ state of mind with regard to the termination of the applicant.
The Decision to Terminate Employment
Was the Applicant’s Employment Terminated?
67Notwithstanding that the respondent indicated on the ROE prepared for the applicant that the reason for the “interruption of earnings” (to use the Employment Insurance terminology) was pregnancy and that the applicant’s application for Employment Insurance was processed on the basis of pregnancy and parental leave rather than termination, it is clear to me that the applicant’s employment by the respondent was terminated by the respondent on October 25, 2010 and that both parties understood this to be the fact. I note that during the course of the hearing the respondent never argued that the employment relationship continued after October 25, 2010. Indeed, Ms. Isaacs’ testimony was that she told the applicant on that date, “…don’t bother coming back, you’re fired”. Similarly, the applicant testified about being anxious and depressed before giving birth because she did not have employment to return to after her maternity leave.
68I think that while it is clear that Ms. Isaacs made the decision to terminate the applicant on October 25, 2010 she also directed that the applicant’s ROE be prepared in such a way that the applicant was entitled to pregnancy and parental leave. In addition to essentially being forced to take leave earlier than planned, the effective date of the applicant’s termination thus became her final day of parental leave, at which point she had no job to return to. Ms. Isaacs herself conceded (at para. 41) that she thought she couldn’t fire a pregnant woman. It seems clear to me that as of October 25th, Ms. Isaacs had made the decision that she no longer wanted the applicant in the workplace. However, perhaps given her admitted misgivings about the consequences of terminating an employee some five weeks prior to an intended pregnancy and parental leave, she decided to force the applicant to “take early leave” and to arrange the termination so that it did not become effective until after the pregnancy and parental leave.
Was Pregnancy a Factor in the Applicant’s Termination?
69Notwithstanding my finding that the applicant’s employment was terminated, she must still establish a nexus between the termination and a Code ground (in this case sex, or pregnancy). I note in this regard that while there is an ROE for an interruption of earnings for pregnancy/maternity leave, there is no ROE indicating the reason for the applicant’s termination. However, given that the applicant’s employment was terminated five weeks before she was due to give birth, I find that the timing of the termination creates an inference that the decision to terminate was based, at least partially, on the fact of the applicant’s pregnancy.
70Taking the evidence as a whole, for the reasons that follow, I also find additional support for my conclusion that it is more probable than not that the applicant’s pregnancy was a factor that contributed to the decision to terminate her employment.
71The applicant began her employment in September 2009. Some five months later the applicant received a performance evaluation in which Ms. Isaacs noted, “I must say you have been a very good employee”. The applicant also received an increase in pay at that time.
72While Ms. Isaacs appeared to at least initially take the position in her testimony that she was not aware that the applicant was actually pregnant, I find that Ms. Isaacs was aware of the applicant’s pregnancy in March of 2010, or very soon thereafter. This is the testimony of the applicant and I note that Ms. Isaacs herself conceded in her testimony that she had heard from other staff that the applicant was pregnant. I also note that Ms. Isaacs stated in the Response that the applicant “announced to the office that she was pregnant”. The evidence is clear that the relationship between the applicant and Ms. Isaacs deteriorated after the announcement of the applicant’s pregnancy.
73At some point after the applicant’s announcement of her pregnancy, perhaps coinciding with the point where she became visibly pregnant, it began to be clear that Ms. Isaacs was unhappy with the applicant’s workplace attire and physical appearance, was unhappy about the length of time being taken for medical appointments (again pregnancy related) and unhappy about what she says was declining performance.
The Applicant’s Appearance
74The applicant states that as early as August 2010, Ms. Isaacs was making an issue of the applicant’s ‘appearance’. Both the applicant and Ms. Isaacs confirm in their evidence that an offer was made by Ms. Isaacs to purchase maternity ware for the applicant.
75Two of the disciplinary letters which Ms. Isaacs said were given to the applicant (and that the applicant denies receiving while an employee) refer to the applicant’s clothing. Exhibit 11 (dated October 13, 2010) criticizes the applicant for not “adhering to the dress code”. Exhibit 12 (dated October 15, 2010) advises the applicant that she has broken her promise to “dress professionally” and reiterates that Ms. Isaac had offered to provide funding for the purchase of maternity ware.
76The issue of the applicant’s pregnancy and particularly her clothing was also prominent in Exhibit 15, the document prepared for counsel by Ms. Isaacs. See the excerpts from that document above at paragraph 46.
77In the meeting between herself, Ms. Isaacs and Mr. Snyder on October 22, 2010, the applicant testified that Ms. Isaacs made a number of comments about her appearance and attire, including the statement, “you are looking big”. See, paragraph 12, above. Ms. Isaacs never denied making these statements.
78There is ample evidence that Ms. Isaacs’ had concerns about the applicant’s attire during the latter stages of her pregnancy. Most particularly, it is undisputed that Ms. Isaacs offered, on several occasions to buy her, presumably appropriately professional, maternity ware. An employer will not run afoul of the Code if they merely adopt and enforce neutral workplace policies or standards such as professional attire or attendance requirements. In this case, however, although there were numerous references to an “office dress code policy” the respondent failed to present any evidence whatsoever as to what the dress code policy specifically required with regard to an employee’s attire. It also appears, on the evidence before me, that the only time the “office dress code policy” was raised was with respect to the applicant alone and only during the latter stages of her pregnancy. Given the lack of evidence of a neutral workplace policy, I find that an inference can be drawn that the respondent’s concerns about the applicant’s attire are directly linked to the pregnancy and were a factor in the applicant’s termination.
79I also find that Ms. Isaac’s remark, “you are looking big” particularly in the context of her urging the applicant to consider taking early maternity leave is direct evidence that the applicant’s pregnancy, and the fact of merely looking pregnant, beyond that of attire, had become a negative factor in Ms. Isaacs’ mind and was a factor in the applicant’s termination.
Attendance and Job Performance
80As noted above an employer will not run afoul of the Code if they merely adopt and enforce neutral workplace policies or standards such as professional attire, attendance or job performance requirements, unless, under s. 11, an employee can establish the “requirement, qualification or factor” results in the “exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member….” If an employee can establish this, then the employer may attempt to establish, in defence, that the requirement, qualification or factor was reasonable and bona fide and they could not accommodate the employee short of undue hardship.
81In the present case, as noted above, Ms. Isaacs was aware of the applicant’s pregnancy in March of 2010, or very soon thereafter. Given that Ms. Isaacs’ laudatory comments contained in the applicant’s Performance Evaluation of late February 2010 (Exhibit 2), the deterioration in the applicant’s job performance and attendance alleged by the respondent appears to coincide with the developing pregnancy. In this regard the respondent appears to argue that the applicant had decided to use her pregnancy as an excuse for laziness. For example, as noted in paragraph 46, above, in Exhibit 15 Ms. Isaacs states, “Since Lamoya’s pregnancy she no longer has any interest in work”. There is no evidence that Ms. Isaacs ever approached the applicant with a view to determining whether some form of Code-related accommodation was warranted in the circumstances. In fact, having found that Exhibits 9, 11 and 12 were never given to the applicant during the course of her employment there is little evidence, other than Ms. Isaacs’ comments about the applicant’s appearance in August 2010 and the meeting with the applicant and Ms. Isaacs in October 2010, that the applicant’s alleged deficiencies were ever brought to the applicant’s attention. Given the timing of the alleged deficiencies, arising as they did during the latter stages of the applicant’s pregnancy, in my view the respondent was obliged to make inquiries as to whether those perceived deficiencies were related to the applicant’s pregnancy. I find that even had the respondent had any legitimate performance related concerns she would have been under an obligation to determine, in these circumstances, whether those concerns arose from the applicant’s pregnancy and if so explore short term accommodation to the point of undue hardship; none of which she did.
82It is common ground that the applicant’s failure to return to work following a medical appointment on October 25, 2010, in relation to her pregnancy, was directly related to her termination. The applicant testified that the agreement with Ms. Isaac was that the applicant would telephone Ms. Isaac after her medical appointment to discuss whether Ms. Isaac required the applicant to return to work. Ms. Isaac testified that the agreement with the applicant was that the applicant would return to the respondent workplace immediately after her medical appointment. Notwithstanding my above findings with regard to the applicant’s and Ms. Isaacs’ credibility I find that it is unnecessary in the circumstances to determine whose version of the agreement is the one to be adopted. I cannot find, based on all of the evidence before me, including the letters submitted by the respondent, that the failure to return to work after the medical appointment was the sole basis for the applicant’s termination. It was at best the culminating event which led the respondent to terminate the applicant in light of the other factors discussed above.
The ROE
83Both parties agree that in the telephone conversation terminating the applicant’s employment on the evening of October 25, 2010, Ms. Isaacs made a statement to the effect that she had begun processing the applicant’s maternity leave. The applicant was in fact issued an ROE coded for Pregnancy and Parental leave. In my view this is another piece of evidence that the applicant’s pregnancy was being considered in Ms. Isaacs’ decision making process. Had the applicant not been pregnant, with her due date approaching, and hence eligible for Pregnancy and Parental leave, Ms. Isaacs would have been forced to issue an ROE indicating the reason for the interruption of earnings was “dismissal”. A ROE indicating “dismissal” would have potentially disentitled the applicant from receiving Employment Insurance benefits. The applicant would no doubt have contested the disentitlement, which in turn would have necessitated Ms. Isaacs responding to enquiries by the Canadian Employment Insurance Commission and possibly attending a hearing before an Employment Insurance Board of Referees. Given these potential repercussions, it was obviously far easier for the respondent to issue an ROE coded for Pregnancy and Parental leave. In my view, Ms. Isaacs understood that, due to the applicant’s fast approaching due date, the applicant was financially and psychologically vulnerable and pre-occupied with the pregnancy and would accept the “no hassle” ROE coded for Pregnancy and Parental leave. In all of the circumstances, I draw an adverse inference that the applicant’s pregnancy was either a direct or indirect factor in her termination, from the failure to issue an ROE for termination following the actual termination on October 25th.
CONCLUSION
84I reject the respondent’s argument that if pregnancy was the reason for the termination the dismissal would have occurred much earlier, given that Ms. Isaacs had been aware of the pregnancy for a number of months. This argument is premised on the idea that there can only be one reason for the termination of the applicant. As discussed above, to establish a Code violation I need only find that the applicant’s pregnancy was one factor in the applicant’s termination, among other considerations in Ms. Isaacs’ mind.
85I also reject the argument that Ms. Isaacs’ lack of experience in human resources matters should be considered an excuse or justification for her conduct. The fact that the applicant’s alleged workplace performance issues could have been better documented does not affect my finding regarding Code-related discrimination on the part of Ms. Isaacs.
86For the combination of reasons set out above, I am of the view that the applicant has established on a balance of probabilities a case of discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 9 and 10(2) of the Code and that the respondent has failed to prove a statutory defence or exemption for its decision to terminate her employment.
REMEDY
87The Tribunal has decided a number of cases in which it found that an employee’s employment was terminated because of pregnancy contrary to the Code. In some of those cases, pregnancy was found to be the only reason for the termination. See Maciel v. Fashion Coiffures, 2009 HRTO 1804, Bickell v. The Country Grill, 2011 HRTO 1333, and Guay v. 1481979 Ontario, 2010 HRTO 1563. In other cases, more akin to the present situation, pregnancy was found to be a factor in the reasons for the termination. See Osvald v. Videocomm Technologies, 2010 HRTO 770, Charbonneau v. Atelier Salon & Spa, 2010 HRTO 1736, Splane v. Ultimate Fitness, 2011 HRTO 195, and Graham v. 3022366 Canada Inc., 2011 HRTO 1470.
Wage Loss
88An applicant who has experienced an infringement of her rights in an employment context is generally entitled to monetary compensation for the loss of earnings that the applicant experienced as a result of the infringement. The applicant is entitled to be “made whole” through compensation for the earnings she would have earned had the infringement not occurred, subject to her duty to mitigate these losses.
89I accept the applicant’s testimony that her due date was November 26, 2010. I also accept that she intended to work right up to that date. She in fact gave birth on November 30, 2010. I conclude that the applicant is entitled to compensation for wage loss for the period from October 25, 2010 to November 26, 2010, a period of five weeks. It was undisputed that the applicant earned approximately $600 per week. Hence, the applicant would have earned approximately $3,000 over the period in question.
90The applicant testified that she began looking for work once her Employment Insurance benefits ended in mid-October 2011. She was unemployed until November 30, 2011, at which time she secured employment paying approximately the same wage as that she had received from the respondent. I conclude, therefore, that the applicant is also entitled to compensation for wage loss for the period October 17, 2011 to November 25, 2011, a period of six weeks. Six weeks of wage loss multiplied by a weekly wage of $600 is $3,600.
Injury to Dignity, Feelings and Self-Respect
91As noted above, section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), the Divisional Court discussed the factors that should be considered when determining the amount of compensation for injury to dignity, feelings and self-respect. At paragraph 153, the Court said:
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.
92In Arunchalam v. Best Buy, 2010 HRTO 1880, the Tribunal summarized some of the considerations relevant to an assessment of damages to be awarded under s. 45.2 of the Code:
I turn now to the relevant factors in determining the damages in a particular case. The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.
The first criterion recognizes that injury to dignity, feelings, and self -respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. See Sanford v. Koop, 2005 HRTO 53.
93In Osvald, above, the applicant was awarded $10,000 in compensation for injury to dignity, feelings and self-respect. In that case the Tribunal found that there were performance issues that contributed to the decision to terminate the applicant’s employment but that factors related to pregnancy had also contributed. The applicant had suffered a miscarriage and was immediately terminated. The adjudicator accepted the applicant’s evidence that she had been “traumatized by the experience” and made to feel “like garbage”. It took the applicant a long time to regain the confidence she lost and this delayed her ability to return to the workforce.
94In Charbonneau, above, the Tribunal accepted the applicant’s testimony that she felt very hurt and was very upset after her employer would not re-hire her partially because of her pregnancy. The applicant was young and experienced the discrimination at a time when she was particularly vulnerable because of her pregnancy and because she had no prospects of employment in Canada which would entitle her to receive employment insurance after the birth of the baby. The Tribunal awarded $10,000 for injury to her dignity, feelings and self-respect.
95During the hearing the respondent submitted that the Tribunal’s decision regarding quantum of damages in Splane, above, should be adopted in the present case. In Splane, the applicant testified that she was extremely stressed by the financial situation resulting from the discrimination. However, the adjudicator noted that the applicant had only given very brief evidence about her reaction to the discrimination. The Tribunal awarded $5,000 for injury to her dignity, feelings and self-respect.
96In Graham, above, the applicant was employed in a job that she had been, by all accounts, performing competently for several years. As a result of the conduct of the respondents, the applicant was put in the position of having to deal with a number of issues including uncertainty as to her source of income during the balance of her pregnancy and frustration at the respondents’ unwillingness to accept that she did not view the pregnancy as a disability. As a result of her termination she had to endure a subsequent unsettled period where she had to take on a variety of small, temporary jobs in order to stay afloat. Finally, the applicant was forced 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. The Tribunal awarded $20,000 for injury to her dignity, feelings and self-respect.
97As noted above, during the course of the present hearing the applicant submitted that the award in Graham was also appropriate in her situation.
98In applying the first criteria in Arunchalam, above, I find that the respondent’s conduct was objectively serious: the applicant was subjected to discrimination at a time when she was particularly vulnerable, being eight months’ pregnant. See, Bickell v. The Country Grill, 2011 HRTO 1333. On the other hand the applicant had only been in the respondent’s employ for some thirteen months, a relatively short period of employment, and in my view the termination would have had an objectively less serious impact than it would have in respect of a very long term employee.
99Arunchalam, above, also suggests an analysis of the applicant’s particular experience in response to the discrimination. In that regard, the applicant testified that she experienced significant anxiety and emotional depression after her employment was terminated. She felt vulnerable and shocked by the action of her employer. I accept Mr. Walker’s testimony that he observed that, after the termination of her employment, the applicant cried frequently, lost her appetite and spent an unusual amount of time in bed. The applicant was without any income until December 24, 2010, when she received her first Employment Insurance cheque. She was extremely worried about her ability to care for the new child financially, given that she had no job to return to after maternity leave. The applicant consulted her family doctor regarding the anxiety she was experiencing and its possible negative effects on her unborn child. In sum, I accept that the applicant experienced substantial injury to her dignity, feelings and self-respect as a result of being terminated by the respondent.
100I find that the applicant’s evidence relating to her reaction to the discrimination was significantly different to that in Splane, above, but not as profound as that in Graham, above. In view of the impact that the termination of her employment had on the applicant at a time of particular vulnerability, I award $12,500 as monetary compensation for injury to the applicant’s dignity, feelings and self-respect.
ORDER
101The respondent is to pay to the applicant $6,600 as compensation for loss of earnings, less statutory deductions, and $12,500 as compensation for injury to dignity, feelings and self-respect.
102These payments must be made within 45 days of the date of this Decision. If the payments are not made within 45 days of the date of this Decision, the respondent shall pay post-judgement interest on the amount not paid in accordance with the Courts of Justice Act, from the date of this Decision.
Dated at Toronto, this 22nd day of February, 2013.
“Signed by”
Alan G. Smith
Member