Lugonia v. Arista Homes, 2014 HRTO 1531

Human Rights Tribunal of Ontario

B E T W E E N:

Amanda Lugonia Applicant

-and-

Arista Homes Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: October 14, 2014 Citation: 2014 HRTO 1531 Indexed as: Lugonia v. Arista Homes

APPEARANCES

Amanda Lugonia, Applicant Dijana Simonovic, Counsel

Arista Homes, Respondent Michael Cooper, Counsel

1The applicant alleged that the respondent terminated her employment because she was pregnant contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was hired as a receptionist on a one year contract to cover a pregnancy leave. She was terminated after working three shifts, the shift after she mentioned to the respondent’s regular receptionist that she was pregnant. The respondent denied that the applicant’s pregnancy was a factor in the termination of her employment. The management representatives who made the decision to terminate the applicant’s employment denied knowledge of the applicant’s pregnancy. The respondent submitted that the applicant was terminated because of performance issues and a lack of “fit”.

2At the hearing, I heard testimony from the applicant. I also heard testimony from Carlo Sistilli, the respondent’s Chief Financial Officer; Mary Cesarone, Executive Assistant and Office Manager, as well as Rose Giulekas, the respondent’s receptionist.

3For the reasons that follow, I find that the applicant has met her onus of establishing a violation of the Code in this case.

Factual Background

The interview process and offer of employment

4The respondent hired the applicant to fill in for the regular receptionist while she was on pregnancy leave. Prior to working for the respondent, the applicant had worked as a receptionist for two other employers and as a data entry/purchasing clerk. At the time that she applied to work with the respondent, the applicant had been working part-time as a chocolatier at Longo’s Food Store.

5The applicant underwent two interviews during June and/or July 2013. During the first interview, she was interviewed by Ms. Cesarone. The applicant testified that Ms. Cesarone told her that the interview process would be conducted in three stages.

6Ms. Cesarone testified that the respondent received approximately 120 applications and conducted about 12 first interviews. According to Ms. Cesarone, the interview process lasted about a month to five weeks.

7A week or two after the applicant’s first interview, Ms. Cesarone asked the applicant to come in for a second interview. During her second interview, the applicant met again with Ms. Cesarone and also with Mr. Sistilli. The applicant felt the interview went well. Both Ms. Cesarone and Mr. Sistilli testified that the applicant made a good impression.

8About a week or two after the applicant’s second interview, Ms. Cesarone called her in for a third meeting on July 17, 2013. The applicant testified that she thought she would be interviewed by Ms. Cesarone and the respondent’s Chief Executive Officer. Instead of interviewing her, Ms. Cesarone and Mr. Sistilli offered the applicant the position in this third meeting. Ms. Cesarone testified that the respondent did not conduct any third interviews but instead offered the applicant the position.

9The parties agreed that the applicant’s start date would be August 6, 2013. They agreed that the applicant would shadow the regular receptionist, Ms. Giulekas, two days per week for the month of August and then she would start full-time in September.

10During the meeting on July 17, 2013, Ms. Cesarone and Mr. Sistilli discussed various terms and conditions of employment with the applicant. In particular, they informed the applicant that her compensation would not include benefits, sick leave or vacation time. The applicant testified that she was not concerned that she would not receive benefit coverage since she was covered under her husband’s benefit plan. The applicant also testified that she understood that she would not be entitled to sick leave and that she did not expect vacation time since it was just a one year contract.

11In the meeting on July 17, 2013, Ms. Cesarone and Mr. Sistilli also informed the applicant of her work hours, including her 8:00 a.m. start time. They also reviewed some of the duties of the position with the applicant, including certain morning duties which included stocking refrigerators and emptying the dishwasher. The applicant testified that she had no problems with the start time or the duties of the position. Both Mr. Sistilli and Ms. Cesarone testified that the applicant did not voice any issues with the start time or duties of the position on July 17, 2013.

12The next day, the applicant resigned her position at Longo’s. She testified that, three or four days later, on July 20 or 21, 2013, she found out she was pregnant by way of a home pregnancy test.

Applicant’s first shift – August 6, 2013

13The applicant’s first shift was on Tuesday, August 6, 2013. The applicant testified that she arrived for work at approximately 7:50 a.m. and went to reception. Ms. Cesarone took the applicant on a tour of the respondent’s offices and introduced her to other staff. The applicant met with all management staff over the course of the morning. Ms. Cesarone gave the applicant an employee handbook which she reviewed over lunch. In the afternoon, the applicant shadowed Ms. Giulekas, the regular receptionist who was about to leave on pregnancy leave. The applicant testified that she made small talk with Ms. Giulekas over the course of the afternoon. Ms. Giulekas showed the applicant where the kitchen and stock room were and how to go about stocking the refrigerators and the photocopier. The parties agreed that this summarizes the essence of the applicant’s activities and her contact with co-workers on her first shift.

Applicant’s second shift – August 8, 2013

14The applicant’s second shift was on Thursday August 8, 2013. On this second shift, she spent the full day shadowing Ms. Giulekas. The applicant arrived around 7:50 a.m. again and waited for Ms. Giulekas. When Ms. Giulekas arrived, they went upstairs and stocked the photocopier and the refrigerators. They also emptied the dishwasher and stocked the conference room with cookies and water. The applicant testified that all of this took about 10-15 minutes. After they had done these morning duties, the applicant and Ms. Giulekas returned to reception. Ms. Giulekas then began to show the applicant the computer and telephone systems for the rest of the morning and early afternoon. Ms. Giulekas also showed the applicant how to fill out certain logs and post cards, and the procedures to follow when receiving packages. The parties agreed that this summarizes the essence of the applicant’s activities and her contact with co-workers on her second shift.

Applicant’s third shift – August 13, 2013

15The applicant arrived at work once again around 7:50 a.m. for her third shift. She testified that she offered to do the morning duties by herself since the kitchen was on the second floor and she thought Ms. Giulekas might welcome not having to go up the stairs due to her pregnancy. According to the applicant, Ms. Giulekas said that she was fine and they could take care of the morning duties together. Ms. Giulekas testified that she did not recall the applicant offering to do the morning duties by herself.

16After the morning duties were completed, Ms. Giulekas and the applicant returned to the reception area. The applicant testified that she and Ms. Giulekas began to talk about Ms. Giulekas’ pregnancy and her child since the applicant also already had one child at that point. The applicant stated that she found Ms. Giulekas to be an easy person to talk to. The applicant testified that, when they returned from their morning break, she told Ms. Giulekas that she was pregnant. The applicant testified that Ms. Giulekas was happy for her. Ms. Giulekas asked when the applicant was due and the applicant told her that she was due at the end of March 2014. The applicant then asked Ms. Giulekas when she should tell the respondent that she was pregnant. According to the applicant, Ms. Giulekas told her that she would wait 3-4 months since you never know what the respondent might do. According to the applicant, she did not plan on telling Ms. Giulekas about her pregnancy. She said she just opened up to her without thinking due to the rapport she felt she had with Ms. Giulekas.

17Ms. Giulekas agreed that the applicant told her that she was pregnant on her third shift. She testified that she congratulated the applicant. However, Ms. Giulekas testified that she tried to divert the conversation back to work issues.

18According to the applicant, Ms. Giulekas had lunch with another employee on the day that the applicant told her she was pregnant. At some point during the afternoon, that same employee came down to reception and Ms. Giulekas got up to get something in the stock room. According to the applicant, the other employee told Ms. Giulekas that she should not leave the applicant at reception by herself. The applicant testified that Ms. Giulekas told the other employee that it was not a big deal and that the applicant was capable of answering the phone herself. The applicant testified that while Ms. Giulekas was gone to the stock room she received mail and two phone calls and all was fine. As discussed further below, the applicant believes that Ms. Giulekas may have mentioned the applicant’s pregnancy to this other employee over lunch.

19The applicant testified that, when Ms. Giulekas returned from the stock room, they talked about the applicant’s pregnancy. The applicant stated that Ms. Giulekas asked her how she was feeling and whether her pregnancy was planned. The applicant testified that they also talked about Ms. Giulekas’ child and her plans for her pregnancy leave. According to Ms. Giulekas, it was the applicant who raised her pregnancy again at several points during the afternoon. Ms. Giulekas testified that each time she tried to divert the conversation back to work issues.

20At about 2:00 or 3:00 p.m., Mr. Sistilli came downstairs and asked to meet with the applicant in the boardroom. When the applicant entered the boardroom, Mr. Sistilli presented her with her employment contract and a confidentiality agreement. According to the applicant, the contract and agreement had sticky tabs on it at the places where the applicant needed to sign it. The applicant said she would review the contract and give it back to Mr. Sistilli after she had reviewed and signed it.

21The applicant testified that Mr. Sistilli asked her if she liked her work so far. The applicant said she told Mr. Sistilli that she was enjoying the work. Mr. Sistilli did not remember asking the applicant this but agreed that he may well have. Mr. Sistilli did not dispute that the applicant said she was enjoying the work. According to the applicant, Mr. Sistilli said it can take a while to learn the phones, who to screen, etc. and that she should call him if she needed help with anything. Again, Mr. Sistilli did not remember saying this but agreed that he might have. According to the applicant, as she walked out of the room, Mr. Sistilli said she was doing great and that she would get the hang of things. Both the applicant and Mr. Sistilli agreed that Mr. Sistilli did not raise any issues with the applicant’s performance or any concerns whatsoever in this meeting.

22The applicant testified that she read through her employment contract while sitting at reception that afternoon. Once she had read through it, she signed it and the confidentiality agreement. However, by the time she had reviewed and signed the documents, Mr. Sistilli had left for the day. The applicant brought the documents home with her and planned to give them to Mr. Sistilli when she arrived for her next shift.

23Among other things in his cross-examination of the applicant, the respondent’s counsel put to the applicant that, at the time she signed her employment contract on August 13, 2013, she knew that she could not fulfill her one year contract. The applicant agreed that this was true. The respondent’s counsel also put to the applicant that, given her March 2014 due date, she would only be able to fulfill half her employment contract. The applicant agreed. The respondent’s counsel asked the applicant whether she had advised anyone that she would not be able to fulfill her one year contract. The applicant conceded that she had not.

Applicant’s termination – August 15, 2013

24The applicant arrived for her next shift just before 8:00 a.m.. She sat at reception with another employee until Ms. Giulekas arrived around 8:30 a.m. after an appointment. When Ms. Giulekas arrived, she and the applicant went upstairs to do the regular morning duties of stocking the refrigerators, emptying the dishwasher, stocking the photocopier, etc. At this point, Mr. Sistilli approached the applicant and asked to speak with her. As the applicant followed Mr. Sistilli into his office, she told him that she had signed her employment contract and that she was not able to give it to him the afternoon of her previous shift since he had already left by the time she had finished reviewing the contract.

25According to the applicant, Mr. Sistilli asked her to sit down when they got to his office. He then told her it was never easy to say these things but that the respondent would have to let her go. The applicant testified that she was shocked that the respondent was terminating her employment after just three shifts. The applicant testified that Mr. Sistilli told her that the respondent decided it had no need for a receptionist since they had hired someone new in the décor center who could answer telephones. The applicant testified that Mr. Sistilli said it had nothing to do with her performance but that the respondent had decided to “restructure the position”. The applicant began to cry. She testified that none of this made sense to her as it was a busy office and it did not make sense for the respondent to go through an interview process only to decide it did not need a receptionist.

26Mr. Sistilli testified that he did not want to get into the reasons for the applicant’s termination during their meeting. During his examination in chief, Mr. Sistilli denied saying anything about restructuring. However he testified that he told the applicant that the respondent might have to “rethink” the position. When asked in cross-examination if he said anything about restructuring or the décor department, he said he did not recall but he did not think so. When I asked him what he meant by “rethink” the position, Mr. Sistilli testified that he meant rethinking how they were going to fill it.

27The applicant testified that the meeting with Mr. Sistilli lasted only about 2-3 minutes. The applicant testified that Mr. Sistilli asked her to return her badge and apologized to her. She testified that they walked out together and she went to the washroom to wipe her face. The applicant testified that she got her bags, handed Mr. Sistilli her signed employment contract and left.

28In cross-examination, the applicant was asked whether her emotional state may have interfered with her recollection of what was said at the meeting. The applicant testified that she was tearing up in the meeting but that she was not hysterical. She said she was upset to lose her job especially now that she knew she was pregnant.

29It was not disputed that neither Mr. Sistilli nor Ms. Cesarone, nor anyone else, raised any performance issues or concerns with the applicant during her three shift employment with the respondent.

30On her way home, the applicant called Ms. Giulekas to tell her she had been terminated. She asked Ms. Giulekas whether she had told anyone that she was pregnant. Ms. Giulekas said she had not.

31The applicant believes that Ms. Giulekas told Ms. Cesarone or Mr. Sistilli about her pregnancy. Alternatively, the applicant believes that Ms. Giulekas told the employee she had lunch with on the day the applicant had told her she was pregnant and that this other employee told Ms. Cesarone or Mr. Sistilli.

32At the hearing, both Mr. Sistilli and Ms. Cesarone denied knowing that the applicant was pregnant, or might be pregnant, prior to her termination. Ms. Giulekas denied that she told either Mr. Sistilli or Ms. Cesarone that the applicant was pregnant. She also denied that she told any other staff members that the applicant was pregnant. Ms. Giulekas testified that she has been pregnant four times and that she has had two miscarriages. She said she felt it was not her business to tell anyone else about someone’s pregnancy.

33Both Mr. Sistilli and Ms. Cesarone testified that they replaced the applicant with another candidate who they had interviewed for the receptionist position when the applicant was hired.

Reasons given for applicant’s termination

34The Response drafted by the respondent’s counsel gave the following reasons for the applicant’s termination:

a. Ms. Lugonia frequently voiced her displeasure to other employees about duties which were part of her job, specifically, without limitation, she questioned why she had to empty the dishwasher and stock the refrigerator.

b. Ms. Lugonia questioned why there were different start times for different employees and why it was necessary for reception to start at 8:00 a.m.

c. Ms. Lugonia questioned other employees as to their medical benefits, sick leave, vacation and other entitlements.

35The Response notes that the applicant’s employment contract contains the following clause:

In accordance with the standard ARISTA policy, your first three months of employment in this position is a probationary period. During this period, both you and ARISTA will determine your interest and suitability for the work which you have been hired to do and your compatibility with existing or new employees. Your work performance, attendance, attitude and conduct are carefully observed during this period, as they are throughout your employment.

Mr. Sistilli’s testimony

36Mr. Sistilli testified that the respondent began putting the above clause into employment contracts 5-6 years ago. He testified that, based on past experience, he felt the clause was necessary to make sure that employees worked together as a team. Mr. Sistilli testified that he had a negative experience in the past with an employee who had a negative attitude and could not work in a team environment.

37Mr. Sistilli testified that Ms. Cesarone told him on the afternoon of August 13, 2013, after he had presented the applicant with her employment contract, that she had received feedback that the applicant was questioning her duties and work hours. Mr. Sistilli testified that Ms. Cesarone had told him that she had been told that the applicant was questioning the stocking of the kitchen and the stocking of supplies in the copy room. He testified that Ms. Cesarone said the applicant was questioning why the receptionist was exclusively responsible for emptying the dishwasher and stocking the refrigerators. He also testified that Ms. Cesarone told him that the applicant was questioning why some employees started at 8:00 a.m. and others at 8:30 a.m. When asked in cross-examination who had told Ms. Cesarone about the applicant voicing these concerns, Mr. Sistilli testified that he did not know at the time. He testified that he assumed it was Ms. Giulekas but that he did not know for sure at the time.

38Mr. Sistilli testified that he was concerned about these comments because in his past experience employees who begin developing bad attitudes do not change. He testified that he felt that if they were to decide to let the applicant go they should do it quickly. Mr. Sistilli testified in cross-examination that he had not received any negative feedback about the applicant from any staff members. He also testified that he never raised any work-related concerns with the applicant.

39Mr. Sistilli testified that he met with Ms. Cesarone again briefly on the morning of August 15, 2013 and they jointly decided to terminate the applicant’s employment that day.

Ms. Cesarone’s testimony

40Ms. Cesarone testified that Ms. Giulekas told her on two occasions that the applicant had questioned why different staff members had different start times. She testified that Ms. Giulekas also told her that the applicant asked why only the receptionist was responsible for stocking the refrigerators and emptying the dishwasher. Ms. Cesarone also stated that Ms. Giulekas had told her that the applicant asked Ms. Giulekas about her benefits and that she also spoke about personal issues relating to her husband. Ms. Cesarone testified that Ms. Giulekas told her that both of these things made her uncomfortable. Ms. Cesarone testified that Ms. Giulekas provided the above feedback to her twice “quickly” and “in passing” – once on August 8th and again on August 13th. When pressed in cross-examination, Ms. Cesarone could not confirm exactly when she spoke to Ms. Giulekas on August 8th and 13th. She testified that she thought Ms. Giulekas provided her comments on August 8th late in the afternoon and in the early afternoon on August 13th. However, she testified that she could not say for sure because it was a long time ago.

41Ms. Cesarone testified that these comments raised flags for her. She felt that it was not a good sign that the applicant was raising these questions when she and Mr. Sistilli had reviewed the hours and duties of the position with her. Ms. Cesarone testified that, based on Ms. Giulekas’ comments, she felt like the applicant was not meeting two requirements of the job – that is, having good interpersonal skills and being a good team player. Ms. Cesarone testified that she didn’t think the applicant was a good “fit” because of these comments that had been relayed to her by Ms. Giulekas.

42Ms. Cesarone testified in cross-examination that she had not received any negative feedback about the applicant from any other staff members. She also stated that she never raised her concerns with the applicant.

43Ms. Cesarone testified that she spoke to Mr. Sistilli about Ms. Giulekas’ comments on August 13th and they decided she would be terminated. Ms. Cesarone said that she and Mr. Sistilli met again on August 15th and decided to move forward with terminating the applicant’s employment that day. She testified that she told Mr. Sistilli that, in light of the comments relayed to her by Ms. Giulekas, she did not think the respondent should be expending any more energy since it had a list of other candidates it could turn to.

Ms. Giulekas’ testimony

44Ms. Giulekas testified that the applicant had questioned why different employees had different start times. She also testified that the applicant asked her about the benefits to which regular employees were entitled. Ms. Giulekas also testified that the applicant asked why the receptionist was solely responsible for stocking the refrigerators and emptying the dishwasher. Ms. Giulekas said that the applicant made her uncomfortable when the applicant asked Ms. Giulekas if she could review the applicant’s employment contract. According to Ms. Giulekas, she was also uncomfortable when the applicant made certain personal comments about her (the applicant’s) husband.

45Ms. Giulekas said she told Ms. Cesarone about all of the above comments “in passing” at the end of the day on August 13th. When asked in cross-examination when she met with Ms. Cesarone, Ms. Giulekas testified that it was not really a meeting, they just chatted at the reception desk. Ms. Giulekas stated clearly twice in her testimony that she shared her comments with Ms. Cesarone only once – specifically, at the end of the day on August 13th. According to Ms. Giulekas, Ms. Cesarone asked her how it was going with the applicant and that is when she made the comments to her.

46When asked what specifically she told Ms. Cesarone that the applicant had said about her duties and employee hours, Ms. Giulekas said she asked Ms. Cesarone if she had covered these issues with the applicant because she was asking questions about them. She also said that certain personal comments the applicant had made about her husband stuck with her and she shared them with Ms. Cesarone. Ms. Giulekas also testified that she told Ms. Cesarone that she thought it was unprofessional that the applicant showed her her employment contract.

47Ms. Giulekas was asked in cross examination whether she thought the applicant was “questioning” certain duties and employee hours in the sense of expressing displeasure with them or whether instead she was asking questions about employee hours and the morning duties because she was uncertain about them. Ms. Giulekas testified that she was not sure, that it was hard to tell, but that she thought maybe a bit of both. Ms. Giulekas testified that she thought Ms. Cesarone had reviewed these issues with the applicant so she did not understand why the applicant was asking questions about them.

Applicant’s testimony

48The applicant denied questioning or expressing dissatisfaction with respect to any of the receptionist’s duties. She also denied questioning her work hours. On this point, she testified that the 8:00 a.m. start time worked well for her since she had to drop her daughter off at day care shortly before that time.

Applicable Law

49Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including sex. 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: s. 10(2) of the Code.

50The applicant bears the onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination was a factor in the respondent’s actions. See, Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. The caselaw is clear that discrimination need only be one of the factors involved for there to be a violation of the Code.

51Most cases before the Tribunal turn on circumstantial evidence, as direct evidence of discrimination is rarely available. Simply put, individuals rarely announce an intention to discriminate and therefore in most cases the Tribunal must examine the evidence closely to determine whether the applicant has met her onus of showing that an inference of discrimination is more probable from the evidence than the explanations offered by the respondent. See Shaw v. Phipps, 2010 ONSC 3884 at para. 77

52Since the respondent’s primary defence was that Mr. Sistilli and Ms. Cesarone did not know the applicant was pregnant at the time they terminated her, the outcome of this Application turns primarily on the credibility of the respondent’s witnesses. In particular, it turns on the credibility of Mr. Sistilli and Ms. Cesarone’s testimony on this point. It also turns on the credibility of Ms. Giulekas’ testimony that she did not tell Mr. Sistilli, Ms. Cesarone or anyone else about the applicant’s pregnancy.

53In all discrimination cases, applicants assert that they were adversely treated due to a Code ground. In all cases that proceed to a hearing, respondents will generally deny that any protected grounds were factors that affected their actions toward an applicant. In all cases, the Tribunal must assess whether these claims are credible in the context of the evidence as a whole. The Tribunal must assess the applicant’s claim that any adverse treatment he or she experienced was linked to a characteristic protected under the Code. Similarly, the Tribunal cannot take a respondent’s denial that a Code ground was a factor in their actions toward the applicant at face value. Instead, the Tribunal must examine all the facts and circumstances to determine whether the denial is credible based on all of the evidence.

54Likewise, when respondents deny that they knew that an applicant had a personal characteristic that is protected under the Code, the Tribunal must examine the evidence to determine whether the denial is credible on all of the evidence. Otherwise, the protection afforded to applicants who have non-visible characteristics such as, for example pregnancy in its early stages, sexual orientation or religion could be rendered meaningless if Tribunal were to simply accept at face value a respondent’s denial that they knew about these characteristics of the applicant. Having said this, weight must be attached to the fact that respondent’s witnesses denied knowledge of a key fact under oath in a Tribunal hearing after being warned of the possible criminal consequences of giving false evidence in a Tribunal proceeding.

55Ultimately, on the facts of this case, the Tribunal must weigh all of the evidence to determine whether an inference of discrimination is more probable than the respondent’s denial that it had knowledge of the applicant’s pregnancy and its explanations of its reasons for the applicant’s termination.

56In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

…the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted or the circumstance that the Judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time…

If a trial judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. 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…A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witnesses, 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 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.

57Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

Parties’ submissions

58The applicant argued that she has met her onus of establishing that it is more probable than not that she was terminated due to her pregnancy. The applicant submitted that the timing of her termination and the circumstances surrounding it supported an inference of discrimination. The applicant also argued that the relatively trivial reasons provided by the respondent for its rush to terminate the applicant also supported an inference of discrimination.

59The applicant submitted that the applicant’s testimony should be considered more credible than the testimony of the respondent’s witnesses. The applicant argued that it was not credible that she would question the receptionist’s duties during her first few days of employment. She argued that the evidence was undisputed that she was aware of the duties of the position before she accepted the respondent’s job offer.

60The applicant also pointed to the discrepancy between Ms. Cesarone and Ms. Giulekas’ testimony as to how many times Ms. Giulekas had shared comments with Ms. Cesarone. The applicant also noted the discrepancies between the position set out in the Response and the evidence of the respondent’s witnesses. Whereas the Response stated that the applicant “frequently voiced her displeasure to other employees” about duties which were part of her job, both Mr. Sistilli and Ms. Cesarone testified that the applicant had at most questioned certain duties with Ms. Giulekas on one or two occasions in passing.

61For all of these reasons, the applicant argued that she met her onus of proving discrimination on a balance of probabilities.

62The respondent submitted that the applicant failed to discharge her onus of establishing that it was more probable than not that her pregnancy was a factor in her termination. The respondent noted that it was undisputed that the applicant only told one person in the workplace about her pregnancy and that was Ms. Giulekas. The respondent stressed that both Mr. Sistilli and Ms. Cesarone testified that they did not know, or suspect, that the applicant was pregnant before terminating her and that they had other reasons for the termination.

63The respondent argued that any inconsistencies with respect to how many times Ms. Giulekas relayed comments to Ms. Cesarone were minor inconsistencies. The respondent noted these inconsistencies were minor given that the events of this case occurred over a year ago and the comments were made in passing.

64The respondent pointed out that both Mr. Sistilli and Ms. Cesarone relied on the provision in the applicant’s employment contract discussed above to terminate her employment. The respondent argued that, even if the Tribunal were to find that the respondent rushed to judgment, this does not imply a discriminatory motive for the termination. On this point, the respondent cited the Tribunal’s decisions in Bains v. Zuber & Company LLP, 2012 HRTO 1821 (“Bains”) and Sloan v. Just Energy Corp., 2012 HRTO 127 (“Sloan”).

65The respondent submitted that all of the applicant’s evidence regarding the reasons for her termination was speculative. The respondent argued that there was no direct evidence and no persuasive evidence to support the applicant’s belief that she was terminated because of her pregnancy. The respondent noted that the Tribunal heard sworn testimony from the two people who made the decision to terminate the applicant’s employment that they did not know she was pregnant prior to making this decision. The respondent also submitted that it was also speculative on the applicant’s part to assert that Ms. Giulekas may have told another employee about the pregnancy when she had lunch with her on the day the applicant disclosed the pregnancy to her.

66For all these reasons, the respondent submitted that the evidence established that it was more probable than not that the applicant’s pregnancy was not a factor in her termination.

Findings

67I find that the applicant has discharged her onus of establishing that it is more probable than not that Ms. Cesarone and/or Mr. Sistilli knew about the applicant’s pregnancy and that they terminated her for this reason.

68I have given careful consideration to the fact that both Mr. Sistilli and Ms. Cesarone testified under oath that they were not aware, nor did they suspect, that the applicant was pregnant before they terminated her employment. I have also carefully considered that Ms. Giulekas testified under oath that she did not tell anyone about the applicant’s pregnancy. However, I find that the testimony of these witnesses is not credible when considered in the context of the evidence as a whole for the following reasons.

69To begin, I find that the timing of the applicant’s termination supports an inference that Ms. Cesarone and/or Mr. Sistilli were aware of the applicant’s pregnancy. The applicant had just told Ms. Giulekas about her pregnancy the shift prior to her termination. There were absolutely no signs of any dissatisfaction on the respondent’s part as of the end of the applicant’s third shift and suddenly she was terminated at the beginning of her fourth shift. While not conclusive, this timing raises questions about whether the respondent was in fact aware of the applicant’s pregnancy and terminated her for that reason.

70The timing of the applicant’s termination makes it important to closely examine the circumstances surrounding the termination and the reasons provided for it. I am highly skeptical of the reasons that the respondent provided for the applicant’s termination for several reasons. There is no doubt that the respondent was entitled to rely upon the clause in the employment contract which stated that an employee’s suitability, attendance, attitude and conduct would be carefully observed during her probationary period. There is also no doubt that, even if I found that the respondent rushed to judgment and acted unfairly, this, by itself is not a violation of the Code. I agree with the Tribunal’s reasoning on that point in Baines and Sloan, above. However, every case must be considered on its own facts. In every case, the Tribunal must closely consider all of the evidence to determine whether the reasons provided by a respondent for its actions are a pretext for discrimination.

71I note that the testimony of the respondent’s witnesses at the hearing did not support the position set out in the Response that the applicant “frequently voiced her displeasure to other employees” about duties which were part of her job. The testimony of the respondent’s witnesses was that the applicant questioned certain job duties once or twice, at most, and that she raised her questions with only one employee – Ms. Giulekas. Moreover, Ms. Giulekas testified that she was not sure whether the applicant was voicing “displeasure” with certain duties or whether she was uncertain about them. In the hearing, Ms. Giulekas testified that it was hard to tell if the applicant was voicing displeasure or uncertainty and that it may have been a bit of both.

72In this case, I simply do not accept that the respondent terminated the applicant’s employment based on one or, as the respondent suggests, two sets of comments made by Ms. Giulekas to Ms. Cesarone in passing on the applicant’s third day of employment. I simply do not find it credible that these comments made in passing would lead the respondent to summarily dismiss the applicant without taking any further steps to clarify the comments, to get more details from Ms. Giulekas, to confirm what the applicant had said, to raise the issue with the applicant or to warn the applicant about her conduct if it was of such great concern to the respondent. The respondent had just spent weeks running a hiring competition for a receptionist to replace Ms. Giulekas during her pregnancy leave. Based on the evidence at the hearing, it was evident that the respondent was impressed with the applicant’s performance in the job interviews. I do not find it credible that they would summarily dismiss the applicant based simply on the comments shared in passing by Ms. Giulekas.

73Moreover, the evidence was undisputed that the applicant understood the hours of the position and her duties during her one year contract as a receptionist. Also, the evidence was undisputed that no one other than Ms. Giulekas “in passing” had raised any concerns whatsoever about the applicant’s performance. The afternoon before her termination, Mr. Sistilli had just presented the applicant with her employment contract to sign and there were no signs whatsoever of any concern regarding the applicant’s performance or attitude. I simply do not find it credible that the respondent would then turn around and terminate the applicant’s employment based on certain comments made in passing by Ms. Giulekas.

74The respondent’s explanation for its precipitous action might be more credible if Ms. Giulekas had raised significant performance issues. However, the issues she raised had to do with (i) the applicant “questioning” why employees started at different hours, (ii) questioning why only the receptionist emptied the dishwasher and stocked the refrigerators and stock room, and (iii) being “uncomfortable” with the applicant showing her employment contract to her and making personal comments about her husband. I do not find it credible that the respondent would just accept these comments and terminate the applicant’s employment without following up in any way to determine whether the applicant was in fact displaying attitude problems, as Ms. Cesarone and Mr. Sistilli suspected. When asked about her comments at the hearing, Ms. Giulekas conceded that she was not sure whether the applicant’s questions about work hours and duties arose from displeasure or uncertainty. At the hearing, she testified that it may have been a bit of both but it was hard to tell. I find it likely that Ms. Giulekas would have expressed her comments to Ms. Cesarone with the same level of doubt. Whether she did or not, I simply do not accept that Ms. Cesarone and Mr. Sistilli would simply act on the basis of this one unclear set of comments made in passing by Ms. Giulekas when, by all accounts, there had been no other concerns about the applicant’s job performance, attitude or actions during her three shifts with the respondent.

75I do not accept that the past experience referred to by Mr. Sistilli explains the respondent’s precipitous actions in this case. First of all, Mr. Sistilli provided no details about the other person to which he was referring. Second, and more importantly, the applicant had just been hired on a one year contract and no concerns, other than Ms. Giulekas’ comments in passing, had been raised by anyone about her attitude and capacity for team work.

76Based on all of the above, I find an inference of discrimination more probable than the non-discriminatory explanations for the applicant’s termination put forward by the respondent. Therefore, I find that the applicant has met her onus of proving that the respondent breached s. 5 of the Code.

Remedy

77The Tribunal’s remedial powers are set out in section 45.2 of the Code. The applicant requested compensation for injury to dignity, feelings and self-respect; compensation for lost wages and lost EI maternity/parental benefits; and pre- and post-judgment interest. She also requested that the Tribunal require the respondent to hire an expert in human rights to assist it in developing a human rights policy which should be distributed to existing and future employees.

Compensation for Injury to Dignity, Feelings and Self-Respect

78I have found that the respondent breached the Code when it terminated the applicant’s employment. While the applicant’s counsel requested $40,000 as compensation for injury to dignity, feelings and self-respect, she acknowledged that the amount awarded by the Tribunal under this heading in past cases has ranged between $10,000 and $20,000. See cases cited in McKenna v. Local Heroes Stittsville, 2013 HRTO 1117 at para. 39.

79The Tribunal’s jurisprudence has primarily applied two criteria in evaluating appropriate compensation 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 Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at para. 52 and Sanford v. Koop, 2005 HRTO 53.

80The applicant testified that the termination of her employment had a significant financial and emotional impact on her. She testified that she and her husband had trouble even buying groceries and had to borrow money from family. The applicant testified that she was devastated by the loss of her employment, that she cried frequently and that the termination placed a significant degree of stress on her marriage. In the circumstances of this case, I find it appropriate to award the applicant $15,000 as monetary compensation for damages for the respondent’s injury to her dignity, feelings and self-respect.

Lost Wages and EI Benefits

81The applicant sought lost wages from the date of her termination to the date she started her maternity leave. She also sought lost Employment Insurance (“EI”) maternity and parental benefits for which she would have been eligible if she had not been terminated. The applicant testified that she received regular EI benefits from August 31, 2013 to December 29, 2013. She testified that she searched for work from the date of her termination up to the end of December 2013. She entered into evidence job applications she had submitted. The earliest one was dated November 29, 2013. When asked in cross-examination why she had not provided any documentation relating to her job search efforts prior to November 29, 2013, the applicant stated that the applications she submitted prior to November 29, 2013 were mistakenly deleted from her phone. The respondent submitted that the applicant’s evidence on this point was not credible. It submitted that the applicant had failed to mitigate her damages during the first three and a half months of her unemployment and therefore that lost wages are not appropriate as the applicant might have found employment if she had searched for work in the early part of her period of unemployment. The respondent also argued that, because the applicant had not mitigated her damages with respect to her lost wages, she also should not receive any compensation for her subsequent lost EI benefits.

82The onus to prove that an applicant has failed to take reasonable steps to mitigate her losses lies with the respondent: Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324. Having carefully considered the evidence admitted at the hearing, I am not satisfied that the applicant mitigated her losses in the early portion of her period of unemployment. I have considered the Tribunal’s case law which has accepted that it is reasonably foreseeable that a pregnant woman will be unable to find alternate employment during her pregnancy. See, Maciel v. Fashion Coiffures, 2009 HRTO 1804 at para. 49 and case cited therein. I agree with this case law. However, at the time her employment was terminated the applicant was still in the relatively early stages of her pregnancy. Taking into consideration all of the evidence admitted at the hearing, I find that the applicant failed to mitigate her losses during the early portion of her unemployment. Therefore, I do not find it appropriate to award compensation for lost wages and lost EI benefits on the facts of this particular case.

Other Remedies Sought

83I find it appropriate to grant the applicant’s requests for pre and post-judgment interest calculated in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.

84In addition, I find it appropriate to grant the public interest remedy requested by the applicant – that is, that the Tribunal require the respondent to hire an expert in human rights to assist it in developing a human rights policy. There was conflicting evidence at the hearing as to whether the respondent actually has a human rights policy. The applicant testified that she was not made aware of any human rights policy. Meanwhile, the respondent’s witnesses claimed that a human rights policy was included in their employee handbook. Despite these claims by the respondent’s witnesses, I note that in its Response the respondent indicated that it did not have a human rights policy relating to the type of discrimination alleged in the Application. The respondent also did not attach a copy of any policy to its Response as is required if a respondent does have a human rights policy. Also, the respondent did not seek to admit into evidence any policy at the hearing.

85Given my findings in this case, I agree that the development of a comprehensive human rights policy which includes provisions relating to pregnancy-related discrimination would be beneficial in order to promote future compliance with the Code. I make a number of specific orders in relation to these remedies below so as to ensure appropriate implementation.

Order

86For the reasons set out above, the Tribunal orders as follows:

a. The application is granted.

b. The respondent shall pay the applicant $15,000 as monetary compensation for injury to her dignity, feelings and self-respect;

c. The respondent shall pay to the applicant pre-judgment interest on the amount due under paragraph b. calculated pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as of August 15, 2013, the date on which the applicant was terminated;

d. The respondent shall pay to the applicant post-judgment interest from the date of this Decision, calculated pursuant to s. 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43; and

e. Within three months of the date of this Decision, Arista Homes shall retain at its own expense an expert in human rights to assist in the development and implementation of a comprehensive human rights policy for the organization which includes provisions relating to pregnancy-related discrimination. The policy shall be finalized within six months of the date of this Decision and copies provided to all current employees and, in future, to all new employees. Once the policy is finalized, the respondent shall also deliver a copy of the policy to the applicant and her counsel.