Williams v. PEOPLEsource Staffing Solutions Inc., 2014 HRTO 1717

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashley Williams

Applicant

-and-

PEOPLEsource Staffing Solutions Inc.

Respondent

DECISION

Adjudicator: Brian Cook

Date: November 27, 2014

Citation: 2014 HRTO 1717

Indexed as: Williams v. PEOPLEsource Staffing Solutions Inc.

APPEARANCES

Ashley Williams, Applicant

Self-represented

PEOPLEsource Staffing Solutions Inc., Respondent

Vince Cappiotto, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleges that her employment was terminated when she went on a maternity leave. The Application was heard on November 7, 2014. I heard evidence from the applicant and from Susan Jones, the applicant’s manager during the period of her employment with the respondent.

2The applicant went on a maternity leave in August 2013. As discussed in more detail in the reasons that follow, based on communications with her manager, the applicant understood that her employment had been terminated effective the date she went on maternity leave. However, the applicant’s employment was not in fact terminated. The issue in this case is whether these circumstances mean that the applicant experienced discrimination because of pregnancy. For the reasons set out below, I find that the applicant did experience discrimination because of pregnancy.

Background facts

3The applicant was hired by the respondent on August 20, 2012. She was hired by Susan Jones. The applicant and Ms. Jones signed an “Employment Agreement”. The Agreement is somewhat ambiguous as to the nature of the employment. The term of employment states that the employment will “continue for an indefinite period, subject to termination in accordance with this Agreement or otherwise.” It also states, “the employment of the employee under this Agreement will be an open-ended, contractual basis with no guaranteed term.”

4The parties agree that the contract included a three-month probation period after which the applicant would be entitled to coverage under the respondent’s benefit plan. The applicant was not formally reviewed at the three-month mark but she was registered in the benefit plan. The applicant testified that at that point, her understanding was that she was a permanent employee. Ms. Jones testified that, at least up to the point when the applicant left to go on a maternity leave, she assumed that the applicant was a full-time employee.

5The applicant was newly married when she started this job. She alleges that when she started, Ms. Jones asked her if she was planning to have a baby. Ms. Jones denies that she asked this.

6The applicant did become pregnant and she disclosed her pregnancy to Ms. Jones in January 2013. The applicant alleges that Ms. Jones said “congratulations, so much for your career” or words to that effect. Ms. Jones denies that she said this and says that she only congratulated the applicant about being pregnant.

7On July 8, 2013, the applicant sent an email to Ms. Jones stating that she was going to start her maternity leave on August 12, 2013 and that she would take the prior week off as vacation, so her last day at work would be August 2.

8At about the time the applicant sent this email she had a conversation with Ms. Jones about what would happen to her benefit coverage during her maternity leave.

9According to the applicant, Ms. Jones reviewed the Employment Agreement and told the applicant that she was a contract employee and should not have been part of the benefit plan at all. The applicant testified that Ms. Jones told her that she would look into the situation but that Ms. Jones did not subsequently provide any further clarification.

10Ms. Jones does not agree that she said that the applicant should not have been part of the benefit plan. She testified that prior to the conversation she assumed that the applicant was a permanent employee. However, she testified that when she looked at the Employment Agreement, it seemed to be somewhat unclear.

11In her will say statement, that she adopted as part of her evidence, Ms. Jones indicated as follows with regard to this conversation:

I remember the conversation, I do not recall the exact day but if it was July 31st, Ashley asked me if her benefits would be continued after she left. I told her I was not sure how that worked and I would have to check her offer letter and contract and speak to HR. I made a copy of the letter for Ashley and gave it to her and I as well checked with our HR department and they advised me that benefits would end when a contract ended.

During the same conversation Ashley asked me if I was holding her position for her. I told her that when she was ready to come back to call me at that time. Ashley is welcome back to work and at no time did I state otherwise.

12Ms. Jones agrees that while she checked with HR and determined that the applicant's benefits would not end, she did not necessarily tell the applicant about the results of her inquiry.

13The applicant testified that the first time that she accessed the benefit plan was when her husband went to his dentist two days before she stopped work in August 2013. The dentist processed a claim through the husband’s plan and also submitted the balance to the applicant's benefit plan. That claim was rejected by the plan. The applicant testified that she understood from this that her benefit plan coverage had been cancelled by the respondent. She agrees that she did not seek clarification of this.

14On August 6, 2013, Ms. Jones sent an email to the person responsible for payroll at the respondent. The email was copied to the applicant. The email reads as follows:

[The applicant's] last day was August 6, 2013. She is now on mat leave. Her vacation pay and any remaining time owed should be paid out as her contract has ended.

15The applicant testified that this email confirmed to her that her employment had been terminated.

16The respondent issued a Record of Employment that indicated that the reason for its issuance was that the applicant was starting a maternity/parental leave. No date of recall was indicated. Ms. Jones said that this was because the respondent did not know the exact date the applicant would return.

17The respondent asserts that the applicant’s employment was not terminated. The respondent provided evidence that shows that it continued to pay insurance premiums for the applicant during the period of her maternity/parental leave.

18The parties attended a mediation session at the Tribunal on May 21, 2014. The parties did not agree to settle the Application. However, the respondent informed the applicant that her employment had not been terminated.

19The applicant returned to work in August 2014. She then found another job and resigned her employment with the respondent effective September 23, 2014.

Analysis and conclusions

20Section 5 of the Code reads 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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

21Discrimination on the grounds of sex includes discrimination because of pregnancy.

22In order to establish discrimination, the applicant must show:

1. that she has a characteristic protected from discrimination under the Code;
2. that she experienced adverse treatment; and
3. that the protected characteristic was a factor in the adverse treatment.

(See Moore v. British Columbia (Education), 2012 SCC 61 at paragraph 33 and Peel Law Association v. Pieters, 2013 ONCA 396 at paragraph 55).

23In this case, the applicant was pregnant and so had a characteristic protected from discrimination.

24The applicant alleges that she experienced adverse treatment because her employment was terminated when she went on her maternity leave.

25The respondent asserts that the applicant did not experience adverse treatment because her employment was not terminated when she went on maternity leave.

26I conclude that the applicant’s employment was not in fact terminated by the respondent when she went on maternity leave. The record of the premiums paid to the insurance carrier confirms that the applicant continued to be an employee and continued to be registered as an employee.

27There is no clear explanation for the denial of the applicant's husband’s dental claim. Since the premiums for the applicant’s benefits were paid, this may have been a processing problem. However, in the context of the conversation between Ms. Jones and the applicant, the denial of the claim contributed to the applicant’s impression that her employment had been terminated.

28While I am satisfied that the applicant's employment was not terminated, I find that the fact that the applicant had not been terminated and continued to be an employee was not clearly communicated to the applicant. The applicant and Ms. Jones both agree that when the applicant met with Ms. Jones prior to going on her leave, Ms. Jones looked at the employment contract and indicated that the applicant's employment status was not completely clear. According to the applicant, Ms. Jones told her that she was a contract employee and should not have been getting benefits at all. Ms. Jones denies saying this. She asserts that she checked with the respondent’s HR department and clarified that the benefits would not end but she agrees that may not have told the applicant about the clarification.

29Ms. Jones states that during the conversation prior to the applicant going on her leave, the applicant asked her about whether her position would be there when she finished her leave and that Ms. Jones told the applicant “that when she was ready to come back to call me at that time”. In the context of the ambiguity in the same conversation about the nature of the applicant’s employment status, it does not appear to me that the applicant could reasonably infer that her position would necessarily be available when she finished her leave. Rather, the applicant could have reasonably inferred that she could call Ms. Jones to see if a position might be available.

30The next communication to the applicant appears to have been the August 6, 2013 email that was copied to the applicant and that stated that the applicant’s “contract has ended”. Ms. Jones testified that this statement was an error. While it may be that at the time she sent this email Ms. Jones knew that the applicant was not a contract employee and that the statement that the contract had ended was made in error, I do not see how the applicant could be expected to know this. From the conversation with Ms. Jones before she went off on maternity leave, the applicant was left with the understanding that there was some uncertainty about her employment status. She then got an email stating that her contract had ended. I find that the applicant reasonably inferred from this that it had been determined that she was in fact a contract employee and that her contract had been terminated because she went on a maternity leave.

31The respondent points out that the Record of Employment that was issued did not say that the applicant’s employment had been terminated, but rather said that the Record of Employment was issued because the applicant was starting a maternity/parental leave. It appears to me however, that receipt of this by the applicant would not have caused her to understand that her employment had not been terminated since the information on the Record of Employment was equally compatible with the termination of a contract and the start of a maternity leave in a continuing employment relationship. Consequently, I find that the Record of Employment did nothing to correct the erroneous information that the applicant had been given.

32In my view, the fact that the respondent led the applicant to believe that her employment contract had come to an end at the time she went on maternity leave had exactly the same effect on the applicant as if her employment really had been ended. It resulted in adverse treatment because the applicant was then faced with uncertainty about her future.

33The applicant testified that she was quite upset because she thought that her employment had been terminated and had no benefit coverage and no job to return to. Prior to going off work, she registered at the hospital where she intended to give birth. At that time, she believed that she had benefit coverage from the respondent’s insurance carrier. This would have covered a semi-private room. By the time she gave birth, she believed that she did not have benefit coverage and so had to pay the semi-private room rate for the two days she was in hospital. That amount was $460.

34The applicant testified that she continued to believe that her employment had been terminated until she attended a mediation session at the Tribunal in May 2014. However, I note that the Response to the applicant’s Application was sent to the applicant in January 2014. In the Response, the respondent stated:

At no time was Ms. Williams employment terminated nor her employment benefits terminated.

35In the circumstances, I can understand why the applicant truly believed that her employment had been terminated when she went off on her leave in August 2013. Given that belief, I understand why the applicant did not seek clarification from the respondent at that time. However, it seems to me that when the applicant received the Response, she should have realized that there may have been a misunderstanding and at the least, she could have contacted the respondent to seek clarification. Instead, it appears that it was not until the Tribunal mediation session in May 2014 that the clarification happened.

36In my view, the respondent led the applicant to reasonably believe that her employment had been terminated. For the period from August 2013, when she went off on her maternity leave, until January 2014, when the applicant received the Response to her Application, the applicant truly and understandably understood that her employment had been terminated because she went on a maternity leave. This was adverse treatment because of pregnancy and was discriminatory under the Code.

37As a result of the discrimination, the applicant experienced some emotional upset because of the uncertainty it created about the future and to some extent also because of believing that she did not have benefit coverage.

Remedy

38Section 45.2 (1) of the Code provides:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

39In this case, the applicant alleges that she had financial losses as a result of the discrimination. These were the unpaid balance of her husband’s dental claim and the hospital costs at the time she gave birth. In my view, the applicant is not entitled to compensation for the dental claim. Since it was submitted during a time when the applicant was still employed, she should have sought clarification about why the claim was not processed. Had she done so, it appears that it would likely have been paid.

40I find that the applicant is entitled to compensation for the semi-private room coverage that would have been covered by the benefit plan. By the time the applicant went to the hospital, she reasonably and understandably believed that her employment had been terminated and that she did not have benefit coverage. That amount was $460.

41I find that the applicant is also entitled to compensation for injury to dignity, feelings, and self-respect.

42This is not a case where the applicant in fact lost her employment due to discrimination. The impact of the discrimination was limited to the time from August 2013 when she went off work, until May 2014, when she attended the mediation session and found out that she was still an employee. However, as I have indicated, it appears that the applicant could have confirmed this information in January 2014, when she received the Response to her Application.

43In the circumstances of this case, I find that compensation in the amount of $1,000 is appropriate for the injury to dignity, feelings, and self-respect that the applicant experienced when she was led to believe that her employment had been terminated.

ORDER

44The respondent shall pay the applicant $460 as compensation for the applicant’s hospital bill.

45The respondent shall pay the applicant $1,000 as compensation for injury to dignity, feelings, and self-respect.

46These amounts shall be paid to the applicant within four weeks of the date of this Decision. Any amount not paid by that time is subject to post-judgement interest in accordance with the Courts of Justice Act, RSO 1990, c C.43.