HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tracy Herrett
Applicant
-and-
Bong-Keun Choi Dentistry Professional Corporation
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Herrett v. Bong-Keun Choi Dentistry Professional Corporation
APPEARANCES
Tracy Herrett, Applicant
Self-represented
Bong-Keun Choi Dentistry Professional Corporation, Respondent
Pamela Krauss, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
background
2The applicant began working for Dr. Choi at the respondent dental practice (“dental practice”) in approximately January, 2013 when Dr. Choi bought it from the applicant’s brother.
3The applicant had worked there for her brother one morning a week as a dental assistant since about 2011. The applicant’s sister and mother also worked there before and after the respondent bought it.
4On June 28, 2013, the applicant was present at the dental practice during an altercation involving her mother, Dr. Choi and Dr. Choi’s wife, Ms. Choi (the “altercation”), resulting from Dr. Choi’s decision to terminate the applicant’s sister. A week later, in the afternoon of July 5, 2013, Dr. Choi also terminated the applicant’s mother’s employment.
5On the morning of July 5, 2013, prior to her mother’s termination, the applicant went to work as scheduled. At the end of her four hour shift, Dr. Choi’s wife gave the applicant a letter advising her hours of work were reduced from four per week to one.
6The respondent terminated the applicant on July 11, 2013. The termination letter alleged the applicant breached the trust required of an employment relationship because of her Facebook postings that slandered the respondent and could impact the business’s goodwill and value.
preliminary issue
7Under s. 10(1) of the Code, family status is defined as “the status of being in a parent and child relationship.” It does not encompass other family relationships, such as that between an individual and his or her siblings.
8One of the applicant’s allegations is that the respondent terminated her employment because he terminated the applicant’s sister the week before he reduced the applicant’s hours. This allegation is not within the Tribunal’s jurisdiction and is dismissed. This decision addresses the remaining allegation that the respondent terminated the applicant because of her relationship to her mother.
legal principles
9The relevant provisions 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, gender identity, gender expression, age, record of offences, marital status, family status or disability.
10(1) “family status” means the status of being in a parent and child relationship; […]
evidence
10The applicant, Dr. Choi and Ms. Choi gave evidence. I have set out only the evidence relevant to my decision.
11Dr. Choi testified he took over the dental practice in January, 2013. In May, 2013 the Chois consulted a human resources specialist, Stacy Dunlop (“Ms. Dunlop”), because Dr. Choi was having problems getting along with an employee and wanted advice.
12On June 28, 2013 the altercation took place. Present were Dr. Choi, Ms. Choi, the applicant, the applicant’s mother and Ms. Dunlop.
13The applicant testified her mother was crying hysterically and Ms. Choi was yelling. Ms. Dunlop repeatedly was telling Ms. Choi to sit down because she was very loud. Dr. Choi was not saying much. Dr. Choi testified the applicant’s mother was yelling in Ms. Dunlop’s face and also threw her keys on the floor toward him.
14The applicant testified she thought her mother was going to have a nervous breakdown because she had never seen her crying so hard. She was so concerned about her that she was going to call 911 to get an ambulance.
15The applicant tried to resolve the situation by asking Dr. Choi why he was making changes in the dental practice and terminating her sister. She testified Dr. Choi could not answer her because Ms. Choi was yelling so loudly. After about 45 minutes, the applicant testified she and her mother left. The applicant took her mother to the doctor.
16A week later, the applicant went to work as scheduled. She testified she hoped to maintain a working relationship with Dr. Choi despite the altercation even though he had not called to see how she was feeling in the week between then and her return to work. She testified it would have been nice if he had called her to tell her she was a good employee.
17She testified it was hard to return to the office because she assumed she would be judged on the events that occurred between her mother and Dr. Choi.
18The applicant felt nervous. She testified that at the beginning of the day she returned to work she assumed she would be judged on what happened the week before. She wondered if the Chois were going to talk to her. She testified she likely was quieter than usual, but disputed Dr. Choi’s evidence that she failed to greet another employee when she arrived. She testified that when she arrived, Dr. Choi’s sister had taken the applicant’s sister’s position, which was hard to see, but the applicant said hello to her. She felt emotional.
19The applicant admitted Dr. Choi may have been worried about the applicant’s ability to handle patients that day, given her emotional state, but testified that as an employer he could have taken away a lot of the stress by sitting down and talking with her. She thought he would be professional and do so, but he did not. She testified no one spoke to her in the four hours she was there. Dr. Choi testified it did not occur to him to talk to the applicant about the incident with the applicant’s mother and sister because the applicant already was in a bad mood, and he did not know he should talk to her about the issue because he had never been a boss before.
20The applicant testified she carried out her duties as usual that day, but admitted she may have been quieter with patients. She disputed Dr. Choi’s evidence that he knew it was going to be a bad day with the applicant because she did not pass him the topical anaesthetic when he asked her for it and instead told him it was “over there”. The applicant testified she did not pass it to him because she was not wearing gloves, which Dr. Choi testified would not prevent the applicant from performing this task. He testified she had never acted like that before and had always been a good employee whom he had never had to discipline.
21Dr. Choi testified that during the applicant’s four hour shift, he felt very awkward and concerned. He explained dentistry involves a lot of concentration and if he is distracted, it puts patients at risk. Dr. Choi testified the applicant was very cold to him and it was apparent she did not want to be there.
22Dr. Choi testified he did not talk to the applicant about her behaviour that day because he felt very nervous and angry and he felt it could get out of control. He did not want anyone to hear that. He also testified he has never learned to talk to employees and just goes in, works and leaves. He is working on this with the help of Ms. Dunlop and his lawyer.
23Because of the applicant’s attitude, Dr. Choi testified he called Ms. Dunlop for advice during the applicant’s shift. Ms. Dunlop suggested termination but Dr. Choi testified he disagreed because the applicant was a good employee with whom he had no issues, and he felt she just needed time to cool down. He testified he did not discipline her because of the altercation because she was a good employee and he had no problems with her. Ms. Dunlop told him that because the applicant was part-time, he could reduce her hours to see if her behaviour improved.
24After speaking to Ms. Dunlop, Dr. Choi called his wife and asked her to draft a letter for the applicant to reduce her hours. While he testified the reduction in hours was to be temporary, he acknowledged this was not well-communicated in the letter because he did not give good instructions to his wife. He testified although he saw and signed the letter, he was not himself that day. On re-examination, Dr. Choi was asked about an undated letter Ms. Dunlop sent to him setting out her recollection of the events of June 28 and July 5, 2013 that in part stated:
I mentioned that although she didn’t have set/guarantee [sic] hours as a courtesy you should let her know / give her notice that her hours will be reduced for the time being.
Dr. Choi acknowledged receiving this and reiterated that this was not communicated in the letter Ms. Choi gave the applicant.
25Dr. Choi testified if he had intended to terminate the applicant, he would have done so. He did not do so because he enjoyed working with her. He reduced her hours because he felt uncomfortable working with her that day and it affected his performance.
26Dr. Choi testified he did not premeditate the decision to give the applicant this letter. He testified he and Ms. Choi had discussed the possibility of the applicant’s behaviour being different when she returned to work after the altercation, but he did not expect it to be as bad as it was. He had no intention of terminating her because she was a good employee. He decided to reduce the applicant’s hours in response to the advice he sought from Ms. Dunlop that day because of his discomfort working with the applicant. He wanted to minimize the time he had to spend with the applicant until she calmed down.
27Dr. Choi denied reducing the applicant’s hours so she would quit. He testified the applicant could have avoided the reduction in hours by being nice. He testified that a dentist, a dental assistant and a patient “invade each other’s space” and when he feels uncomfortable with someone, in this case the applicant, it does not work. He did not think it was fair to him to have to feel uncomfortable while he worked.
28At the end of the applicant’s shift, Ms. Choi handed the applicant the letter, and told her it was a business decision. The applicant testified she left crying because she was going to have a breakdown.
29The applicant was hurt and angry. She did not feel any remorse for her behaviour at work that day as she did not feel she did anything wrong.
30After leaving work, the applicant posted a Facebook message that stated the applicant’s mother left on stress leave because of how the Chois treated her; the applicant’s sister was terminated; and the applicant’s hours were cut to one per week. It concluded: “I hope they don’t get away with it and I hope KARMA kicks their [the Chois’] ass.” The applicant acknowledged she was upset when she posted this.
31The Facebook posting generated many negative comments by other posters. The applicant denied understanding comments made about the Chois buying the dental practice because there were no variety stores for them to run and denied reading the comment from one person about taking down the Chois’ sign.
32The applicant agreed that through her Facebook posting she was diverting clients from the respondent. She agreed there has to be trust in a working relationship. She also agreed it made sense Dr. Choi would not feel comfortable working with the applicant after these postings, but she reiterated she felt the Chois terminated her with the reduction in hours even though she did not say that specifically in her Facebook posting.
33The applicant testified in her view the Chois effectively terminated her by reducing her hours because of the altercation. She admitted she made that assumption and no one told her that. She acknowledged the Chois did not terminate all her family members that were employed there before the Chois bought the dental practice and that one of her cousins and a sister-in-law still work there.
34After one of their receptionists told them about the Facebook postings on July 6, 2013, the Chois consulted Ms. Dunlop and their lawyer, and decided to terminate the applicant’s employment, which they did by letter dated July 11, 2013. Dr. Choi testified that some of the comments on the applicant’s Facebook posting included racial profiling because of the variety store comments. They also included that he was an idiot; he did not understand Canadian values; he was scum; and they would come and rip his sign down. Dr. Choi called Ms. Dunlop who told him to call the police, which he did.
35Dr. Choi testified he could not work with someone who would post such comments about his dental practice, and he terminated the applicant. He did not hear from her after the termination.
parties’ submissions
36The applicant submitted Dr. Choi took out his frustrations with the applicant’s family on her. In her view, the respondent terminated her the day her hours were reduced for no reason. The applicant submitted this was harsh, unfair and unreasonable and was because of family status.
37The applicant submitted the proximity of the reduction in her hours to the altercation more likely than not meant the decision to reduce her hours was based at least in part on her relationship with her mother.
38She stated the respondent was looking for a reason to terminate her as evidenced by the harshness of the penalty for her alleged cold, quiet behaviour. She stated Dr. Choi was looking for an excuse to terminate her, evidenced by the fact that Dr. Choi says he made a decision to punish her alleged bad behaviour, called Ms. Dunlop and his wife and had the letter written all while she was at work for only four hours.
39The applicant submitted there was no other reasonable explanation for such a harsh punishment other than her relationship with her mother in light of the altercation.
40The respondent on the other hand submitted there were non-discriminatory reasons for the respondent’s actions, and the applicant’s sole evidence of discrimination on the basis of family status is the timing of the events.
41The respondent submitted that as in the case of Baksh v. St. Lawrence Centre for the Arts, 2014 HRTO 1, the applicant’s assumptions about the reasons for the respondent’s actions are not sufficient to establish discrimination. The respondent pointed out the applicant assumed at the beginning of the day she returned to work that she would be treated differently because of the altercation.
42The respondent stated that unlike in Devaney v. ZRV Holdings Limited, 2012 HRTO 1590, the respondent in this case had a non-discriminatory reason to be uncomfortable or worried about the applicant’s work performance because of how she acted when she returned to work.
43The respondent submitted the reduction in hours was meant to be a cooling off period. Although it was not well-communicated in the letter, Dr. Choi still had faith in the working relationship with the applicant. His decision was a considered one after he consulted Ms. Dunlop who gave him options. He chose to continue to employ the applicant.
44Even after he saw the Facebook postings, Dr. Choi did not act rashly but consulted again with Ms. Dunlop, and also with his lawyer before making the decision to terminate the applicant. The Facebook postings gave the respondent grounds to dismiss the applicant. Her termination resulted from a breach of trust in the employment relationship.
findings and analysis
45A resolution of the factual differences in this matter is not central to my decision because on the essential issues there was little disagreement.
46The applicant and Dr. Choi agree they both were present at the altercation between the applicant’s mother, Dr. Choi and Ms. Choi, with Ms. Dunlop present.
47The applicant and Dr. Choi also gave similar evidence that established the applicant was quiet when she returned to work after the altercation. Both parties’ evidence made it clear there was a high level of discomfort between them both because of the altercation and because neither of them knew how the other was going to act as a result of it. Their evidence also established that they barely spoke to each other that day and did not discuss the altercation.
48The applicant and Dr. Choi agreed the applicant failed to pass the topical anaesthetic to Dr. Choi, but they disagree on the reason. However, it is not crucial to my decision to establish the answer to this question because it was merely one incident in a morning that clearly was filled with a level of discomfort that was enough to cause problems between the applicant and Dr. Choi.
49I accept the applicant’s evidence that she was nervous. She admitted Dr. Choi may have been worried about her ability to handle patients, given her emotional state. I accept Dr. Choi’s evidence that he felt nervous, angry and awkward. I accept Dr. Choi does not know how to talk to employees. He goes in, does his work and leaves. I accept his evidence because it is consistent with his failure to call the applicant after the altercation and to try and speak with her about her demeanour on her return to work.
50This failure likely is the reason the applicant assumed the reduction in her hours was due to the altercation between Dr. Choi and her mother. However, the evidence in my view establishes that the reason for the reduction was Dr. Choi’s discomfort with the applicant’s demeanour following the altercation, particularly in light of the applicant’s admission that Dr. Choi may have been worried about her ability to handle patients given her emotional state. As he put it, she could have avoided this by “being nice”. He testified given the nature of his work, if he is distracted it puts patients at risk.
51Discrimination based on family status may include discrimination based on the particular identity of an applicant’s parent, but the applicant must demonstrate that he or she was arbitrarily disadvantaged because of his or her relationship with that particular parent (see: B. v. Ontario (Human Rights Commission), 2002 SCC 66).
52I find Dr. Choi’s decision was not a discriminatory one. While the reduction in hours resulted after the altercation, I accept Dr. Choi’s evidence that it was his discomfort with the applicant’s attitude that morning, and not the applicant’s relationship to her mother, with whom he had the altercation, that led to his reducing the applicant’s hours on Ms. Dunlop’s recommendation. I found no reason to dispute Ms. Choi’s evidence that Dr. Choi called her that morning and asked her to come to the office and write the letter that reduced the applicant’s hours after he spoke to Ms. Dunlop, and that this was not planned or done in advance.
53In making this finding, I am not opining on whether this was, in general, a fair employment decision as that is not my role.
54I accept Dr. Choi’s evidence that he made the decision to reduce the amount of time he had to spend with the applicant until she had cooled down. I accept that despite Ms. Dunlop’s recommendation that he terminate her, he did not want to do so because she was a good employee and they had a good working relationship and he hoped that could continue.
55My finding that Dr. Choi reduced the applicant’s hours for non-discriminatory reasons is bolstered by the uncontradicted fact that other relatives of the applicant continue to work with Dr. Choi.
56With respect to the applicant’s termination, the applicant agreed there has to be trust in a working relationship and agreed it made sense Dr. Choi would not feel comfortable working with the applicant after her Facebook postings. Given this uncontradicted evidence, I conclude the respondent terminated the applicant for a non-discriminatory reason.
57I find the respondent did not discriminate against the applicant on the basis of family status.
58For these reasons the Application is dismissed.
Dated at Toronto, this 31st day of December, 2014.
“Signed by”
Dawn J. Kershaw
Vice-chair