HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tamra Baker
Applicant
-and-
Twiggs Coffee Roasters
Respondent
DECISION
Adjudicator: Ruth Carey
Indexed as: Baker v. Twiggs Coffee Roasters
APPEARANCES
Tamra Baker, Applicant
Jamie Lynn McGinnis, Counsel
Twiggs Coffee Roasters, Respondent
Joseph Kennedy, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of sex and pregnancy.
2Shortly after discovering she was pregnant the applicant was hired and started working at the respondent’s restaurant. About two weeks later the applicant received a series of texts indicating she was being fired; the texts essentially say the owner has found out you are pregnant and she does not think you can do the job as you get bigger. The applicant then received a telephone call from one of the respondent’s co-owners informing her she was being terminated from employment for performance reasons. The applicant does not believe the respondent’s co-owner; she believes her pregnancy was a factor in the decision to terminate her employment as stated in the texts.
3The respondent asserts that its co-owner made the decision to terminate the applicant’s employment based on performance; she felt the applicant was not suited to the job and she was concerned about the applicant’s unavailability for work on Saturdays. She claims when she made this decision she had no idea the applicant was pregnant. The respondent further asserts that the text sent to the applicant was a lie; not only was it a lie but it was sent by a rogue employee who had no authority to terminate the employment of the applicant.
4This Application gives rise to the following questions:
Did the co-owner who made the decision to terminate the applicant’s employment know she was pregnant?
If she did know about the pregnancy was it a factor in the decision?
If the pregnancy was not a factor in the decision to terminate the applicant’s employment, do the texts sent to the applicant saying otherwise constitute a breach of the Code?
If the texts do represent a breach of the Code, is the respondent liable for that breach?
5For the reasons stated below the Tribunal finds that the respondent’s co-owner was not aware of the applicant’s pregnancy; it was not a factor in the decision to terminate her employment so the termination is not a breach of s. 5(1) of the Code. The sending of the text messages to the applicant may arguably constitute sexual harassment contrary to s. 7(2); but regardless of whether it is or not, the respondent cannot be held liable because of the wording of s. 46.3(1) of the Code. As a result, the Application is dismissed.
6The hearing of this Application was held in North Bay over the course of two days: November 1, 2013, and December 18, 2013. The applicant testified on her own behalf and called as witnesses: her common-law spouse, Danny Turcotte; her doctor, Dr. Len Gushe; and the person who sent the texts, Cara VanDerMark. The respondent called as witnesses: Jennifer Twigg and Laura Twigg, the co-owners of the respondent; and Tanya Sweeney and Leslee Murphy, employees of the respondent who worked with the applicant. Throughout the hearing the parties referred to themselves and all of the witnesses except Dr. Gushe by their first names, so for ease of reference this Decision mostly continues that practice.
FINDINGS OF FACT
7In August of 1995 Jennifer Twigg (“Jen”) opened Twiggs Coffee Roasters. Despite its name the respondent is more than a coffee shop. The location on Fraser Street in North Bay has over 300 items on its menu and has a drive-through window. It is licensed to serve alcohol. Laura went to work there when she was sixteen; eventually she married into the Twigg family and about 7 years ago she became a co-owner.
8Over the years the respondent has expanded beyond a single location. About three years ago it opened a location on McKeown Avenue in North Bay. There are also two franchise locations; one in North Bay and one in Sturgeon Falls. Jen operates mostly out of the McKeown Avenue location whereas Laura supervises the Fraser Street one.
9The applicant was living in Wasaga Beach in May of 2012 when she and her spouse, Danny Turcotte, learned she was pregnant with their first child. They decided they wanted to raise their family in North Bay where Danny is self-employed as a photographer. The applicant lived in North Bay previously so she reached out to her contacts to inquire about possible employment opportunities.
10One of the people she reached out to was an old friend and employer, a woman the applicant felt very close to. (In this Decision this friend of the applicant’s is referred to as K.) K was willing to hire the applicant again but had no hours available to give her. K passed on the news that the applicant was looking for work in North Bay to her daughter, Cara VanDerMark.
The Hiring of the Applicant
11At that time Cara was working for the respondent at the Fraser Street location. On June 10, 2012, Cara and the applicant exchanged a number of text messages some of which read as follows (absent emoticons but with spelling and grammar intact):
12:05 p.m. from Cara: hey Tamra! How’s it going??? My mom was in the other day and she said u r looking for work?? Give me a call because I am looking for someone…
3:49 p.m. from the applicant: Hey you!!! Things are great, busy busy that’s for sure hope all is good with you too!!! Yes I stopped to see your momma looking for work hahaha I’m moving back for July 1 and am defiantly looking. The only concern or request I have is I can’t work Saturdays in the summer. I gotta help Danny with weddings. I hate to ask for that but it’s a must!! And only other thing I’ll warn you in advance I would need July 25th weekend off (gotta help his momma) but other than that I’m all yours… [Emphasis added.]
12At the time these messages were sent the applicant was aware that Cara was working for the respondent. The applicant states that she took the first of these messages to mean that the respondent was hiring and Cara had the authority to make hiring decisions.
13The next day, June 11, 2012, the applicant and Cara exchanged more text messages:
11:54 a.m. from Cara: hey!! If u here this wknd come by the store so we can chat!! I work here on sat and off Sunday… And im here all week. Im gonna talk with Laura today about ya so not to sure if we need to interview or not because I just need u!!
[time unknown] from the applicant: …I am not there this weekend, the next one But am sure excited to hear back Im a pretty quick learner and a go with the flow kinda girl so I really hope this works out…
2:26 p.m. from Cara: lol. OK. I work the whole wknd. So im gonna be honest im giving u the job… I just thought u should come by so we can talk about the store and the way everything works! … Maybe Friday after 430 if u here by then? We can sit and have a tea or something and chat…
[time unknown] from applicant: Hahha that message just made my day!!! I’m soooooo excited and worried I’m just gonna give my pay cheque back because I love the food sooo much… I will be there for 4 on Friday and look forward to seeing you… [Emphasis added.]
14As a result of these texts the applicant reasonably believed she had been hired to work at the respondent’s restaurant by Cara. (Although in the applicant’s oral testimony she repeatedly referenced June 10, 2012, as the date she received the text above offering her a job, the texts themselves indicate it was June 11, 2012. Nothing rests on this discrepancy in the evidence.) On June 19, 2012, the applicant posted a message on her Facebook page saying she could not wait to start working at the respondent’s restaurant.
15After the texts were exchanged the applicant spoke with Cara on the phone confirming their arrangement to meet on Friday, June 22, 2012. She also told Cara she was pregnant and Cara replied that she already knew that as her mother, K, had told her.
16Laura states that at the time the texts above were exchanged she knew nothing about them but was just about to post an advertisement seeking three food and beverage servers which she did on June 13, 2012.
17Cara had worked for Laura a relatively long period of time; they were close friends, and Laura had just had a baby in April, 2012. As a result, Laura writes in the Response:
Some customer service issues resulted from my occasional absence including slow service and running out of product. Due to these issues I asked Cara… to start ordering product and take a lead role in ensuring efficient customer service.
18However, both Laura and Cara state that Cara was not a manager and did not have the authority to hire the applicant; rather, Laura does all of the hiring and firing for the Fraser Street location. Cara says she misled the applicant into believing otherwise because she wanted to appear more powerful than she was; she admits sometimes lying to impress people.
19On June 22, 2012, the applicant met with Cara as planned. The applicant says Cara told her the respondent was looking for employees and mentioned they were having problems filling the morning shift. The applicant further states Cara told her she and Laura were best friends; and she advised the applicant not to tell Laura that the applicant was pregnant until after Laura had a chance to see how the applicant performed serving the public at the respondent’s restaurant.
20The applicant further states that Cara told her the schedule would be good for a pregnant woman – it was from 5 a.m. to 1:30 or 2:30 in the afternoon. The applicant also says that Cara told her it was a full time position. This was important to the applicant because of her pregnancy. She wanted a job that would give her enough hours so that when her child was born she would be eligible to receive maternity benefits from the federal Employment Insurance (“EI”) scheme.
21During her oral testimony Cara was not asked about this meeting on June 22, 2012. However, she did adopt and affirm as true the statements contained in an affidavit sworn on June 13, 2013, and a witness statement dated December 16, 2012. With respect to the meeting on June 22, 2012, the witness statement and affidavit essentially say the same thing:
The applicant and Cara chatted, catching up;
The applicant said she was looking for a job and asked if the respondent was still hiring and Cara told her that it was looking for someone part-time including weekends and evenings;
The applicant expressed an interest in working for the respondent and Cara told her that Laura did the hiring and firing so Cara would speak to Laura and get back to her;
After speaking with Laura, Cara called the applicant and told her to attend July 3, 2012, and if she made a good impression, Laura would probably hire her; and
Cara asked the applicant if she was going to disclose her pregnancy to Laura and the applicant said she would wait and see and tell Laura later.
22The witness statement says nothing about the text message of June 11, 2012, set out above in which Cara writes she is giving the applicant the job, but the affidavit does. It says she exaggerated her responsibilities to impress the applicant even though she knows she has never had responsibility for hiring.
23The difficulty with Cara’s statements about her meeting with the applicant of June 22, 2012, is that they are not logically consistent with the text messages that Cara acknowledges writing. Cara clearly told the applicant on June 11, 2012, via text that she was offering the applicant a job at the respondent’s restaurant. In that context it is not credible that in their follow up meeting on June 22, 2012, the applicant would say she was still looking for a job or that Cara would say she had to talk to Laura before the applicant could be hired. As a result, I accept the applicant’s evidence in its entirety as regards her conversation with Cara on June 22, 2012.
24At the time this conversation occurred, the applicant was unaware of Laura’s June 13, 2012, job posting seeking three servers. During her testimony in chief the applicant was shown the posting and asked if it matched her expectations at the time of her conversation with Cara to which she answered yes. However, the job posting indicates the posted positions were part time leading to full time and included weekends, nights and evenings. The posting is somewhat ambiguous in this regard because for salary it says “$10.25 Hourly, for 40.00 Hours per week”.
25This ambiguity is also reflected in the testimony of the respondent’s witnesses. During her examination in chief Laura was asked if the respondent hires people initially on a full-time basis. Her reply was emphatic that it does not happen ever. She states the respondent is a restaurant so there is no guarantee of hours. If it is quiet people are sent home regardless of their scheduled hours. Also she states the respondent does not say to people on hiring you will get full time hours. For the reasons stated below I do not find this part of Laura’s testimony to be credible.
26I say this primarily because Laura’s testimony is directly contradicted by one of her own employees, Leslee Murphy. Leslee says she started working for the respondent in September of 2010 and at the time she was hired by Laura it was for full time hours although she cannot say how many hours constitutes full time. She is sure about this because she applied for another job at the same time as she applied to the respondent and told Laura that if she was going to get full time she would give notice to the other job which is exactly what she did.
27The schedules supplied by the respondent indicate that it is not unusual for employees to work full time or close to full time hours. The schedule for the week of July 1, 2012, lists 18 employees in addition to the five new hires; 5 of them worked 35 hours or more that week. For the week of July 8, 2012, the schedule lists 17 employees in addition to the new hires and shows 7 working in excess of 35 hours. Although these two weeks were at a time when the respondent was short-staffed so some employees were working more hours than usual, they still indicate a significant number of employees did work full time.
28Throughout this Decision considerable weight is given to these work schedules for two primary reasons.
29First, the applicant did not challenge their accuracy except with respect to one shift. That challenge concerns Cara’s shift on July 11, 2012, which is crossed out indicating Cara was not working that day. The applicant asserts this crossing out is part of an after the fact plan of the respondent’s to make it look like Cara did not work that day when she did. That allegation is discussed further below.
30Second, the schedules are clearly living documents intended to be relied on by the respondent and its employees. They show the original scheduled hours as well as adjustments and changes to shifts as employees were sent home early. Number of hours for each shift is set out beside the shift and that number reflects the actual hours worked as opposed to the originally scheduled hours so it was added as the week unfolded. Finally, someone has totalled the number of hours actually worked below the name of each employee and again that number reflects the total number of hours actually worked instead of scheduled. As a result the schedules are more than merely schedules; rather they are a contemporaneous record of who worked when.
31Given all the above it seems to me that the text of the job posting is more closely aligned with the truth and the respondent does sometimes tell people on hiring that if things work out they will get full time hours. That being said, what Laura normally says to people on hiring is not a material issue in this Application because the applicant’s hiring conversations were with Cara and not Laura.
32Laura states that pursuant to the job posting of June 13, 2012, she interviewed about 20 applicants all on one day sometime in the month of June, 2012. This probably happened prior to the applicant’s June 22, 2012, meeting with Cara. Laura says she is friends with all of the people who work for her and Cara was one of her friends. She always has someone else sit with her when she does interviews and Cara sat with her during the ones she did in June, 2012. At some point in time Cara came up to her and said she knew somebody coming to town looking for work. Laura got the impression that the applicant and Cara were very close friends so she said okay, have her come in for the orientation and we will see how it goes. This is how it is that the applicant ended up attending orientation with four other new hires on July 3, 2012.
The Orientation
33There is no dispute between the parties that on July 3, 2012, Laura spent two hours with the new hires doing orientation. At the orientation she had them sign a series of documents including a job offer confirmation letter. That letter sets out the wage, indicates the “position reports to Laura Twigg”, and says the schedule will be posted a week in advance. Although the applicant misdated the form as being signed on July 5, 2012, there is no dispute the applicant signed the offer on July 3, 2012.
34During the orientation Laura gave a speech similar to what she says at all such orientation sessions. Essentially she tells people that the respondent’s restaurant is a very fast paced environment and at least one in three new hires does not make it as it is simply not for everyone. Each server is expected to be able to work at each station and move rapidly back and forth between them sharing tasks with other servers and interacting with customers. There is no kitchen in back where food is prepared. Rather the servers prepare all of the food and drinks at a busy counter. One person may prepare an order and deliver it themselves or someone else may pick it up and take it to the table. The same is true for all other tasks. They work collectively helping each other out constantly. This means that at all times employees must be alive to both customer needs and what the other employees are doing.
35After explaining this reality at the orientation Laura invites people who think they cannot do it to just leave. For her there is no shame in this as many people are not suited to the work environment.
36The staff schedules entered into evidence show that one of the four new hires that started at the same time as the applicant was crossed off the schedule the following week but it is unclear if this means she quit or was fired or was absent for another reason.
37Although Laura gives this same speech regularly telling new hires one in three will not make it, the number of people whose employment is terminated during the probationary period is unclear. Laura states that in the year prior to the hearing 13 people were let go during the probationary period. Jen Twigg says that in the last ten years maybe a dozen people were let go within days of starting to work for the respondent. Both Laura and Jen say this is fairly common in their industry; both of them and Leslee Murphy state the respondent knows within a few shifts if a new hire is going to work out or not. I accept this evidence of the respondent because it is uncontested; it is also supported by the fact that although the job posting indicated the respondent was looking for three new servers, it actually hired five.
38At the orientation session Laura also showed the applicant and the other new hires around the restaurant. Laura says that normally at orientation she spends the last hour having the new employees serve customers right away and spends a total of three hours with them. In the course of her testimony before me she initially said this is what happened on July 3, 2012, with the applicant’s orientation; but after she was reminded that the respondent’s schedule indicates the new employees were only there for two hours that day, she corrected herself and says she did not do that last hour of training with them. She thinks she probably scheduled only two hours with them because she had a newborn at home at the time.
39Laura says that during orientation the applicant seemed a little bit quiet compared to the other girls; she did not ask a lot of questions. She appeared unenthused with the prospect of working there, nervous or intimidated. Laura says she was sure that what was going through the applicant’s mind is there is a competition going on here which is true. There were four others hired at the same time but the respondent only needed three.
The Applicant’s Work Shifts
40In total the applicant worked for the respondent 15 hours over the course of her employment. This includes the two hour orientation session on July 3, 2012; 2.5 hours on July 6, 2012; 5 hours on July 8, 2012; 3 hours on July 11, 2012; and 2.5 hours on July 12, 2012.
July 6, 2012
41On July 6, 2012, the applicant and the other new hires had their first hands on training session which was for two and a half hours over the lunch time. During that period Tanya Sweeney showed them how to use the cappuccino machine. The applicant describes that day as fast paced; it went very quick. Leslee Murphy was also there working but the applicant says she did not interact with her much that day. However, she also states Leslee told her she did a good job and Cara said that to all of the trainees as they left. Neither Leslee nor Cara refuted the applicant’s evidence in this regard so I accept it as true.
42Tanya says when she worked with the applicant that day her impression was that the applicant did not seem very interested or comprehend what was going on particularly in comparison with the other new hires. She reported this to Laura after the shift was over.
43Leslee says she cannot remember the dates she worked when the applicant was present but agrees that the schedules entered into evidence indicate she was present during 8 hours out of the total 15 the applicant ended up working for the respondent. She says she remembers thinking she did not see the applicant becoming a member of the team; it takes a while to catch on and the applicant was not picking things up quickly or interacting with the customers. She also reported her observations to Laura but cannot recall when that was.
July 8, 2012
44The next shift the applicant worked was Sunday, July 8, 2012. Neither Leslee nor Tanya worked shifts overlapping with the applicant that day. Cara was there but she did not testify as to what happened and neither of her written statements entered into evidence discuss it. However, there are discrepancies in the evidence with respect to the events of July 8, 2012.
45The applicant states that she worked 5 and a half hours on July 8, 2012, which is not consistent with the schedule or the applicant’s own witness statement affirmed as part of her testimony at the hearing. I suspect this discrepancy may be related to a lunch break. The schedule indicates the applicant was to work from 9 a.m. to 2:30 p.m. for a total of 5 hours worked which I take to mean the applicant was expected to take a half hour break. That is consistent with the shifts and number of hours worked of other employees on the schedule.
46One of the discrepancies in the evidence is whether or not Laura was at the restaurant during the applicant’s shift on July 8, 2012.
47During the applicant’s examination in chief she was asked questions about each day she was in the respondent’s restaurant. One of the questions asked for each day was whether or not Laura came into the restaurant while the applicant was working. The applicant replied no to that question for each day. However, on cross-examination the applicant contradicted herself and stated that on one occasion she was working and serving customers and Laura came into the restaurant although only for a few minutes. She also stated on cross-examination that she heard Laura going through the drive-through on another occasion.
48Laura says that she goes into the restaurant every day and when not there is constantly available by phone, text and e-mail. Her contact information is posted in the restaurant for that purpose. She also has a remote camera app on her iPhone that allows her to watch what is happening in the restaurant. Sometimes she is there for only a few minutes but she is still there every day. When her baby was born in April of 2012, she continued to manage the Fraser Street location by dropping by daily. She says she would go home to put the baby down and watch what was happening in the respondent’s restaurant on her iPhone. Cara also states that Laura would drop by the restaurant daily.
49Laura says that on July 8, 2012, she was in the restaurant for about ten minutes. Given the applicant’s admission on cross-examination that Laura was in the restaurant for a short period on at least one day when the applicant was working, I accept Laura’s evidence she was there on July 8, 2012.
50Laura says that her impression of the applicant that day was that she did not seem overly excited to be there; rather, she seemed a little bit nonchalant as her arms were frequently crossed. She also did not communicate a lot with the rest of the team, did not smile or appear friendly, and seemed completely overwhelmed.
51The applicant also says that on July 8, 2012, she and Cara left earlier than scheduled because Cara was not feeling well and the applicant gave her a ride home. According to the applicant the time they left was 2:30 p.m. Again this is not consistent with the respondent’s work schedules which show that both the applicant and Cara were scheduled for shifts ending at 2:30 p.m. If they left early as the applicant says then the schedule cannot be correct as it indicates both Cara and the applicant worked to the end of their shifts. I would also note that the applicant’s witness statement says that Cara left early needing a ride home on July 12, 2012, not on July 8, 2012. Given these unexplained discrepancies I am not prepared to accept it is more likely than not that the applicant and Cara both left early that day because Cara was feeling unwell and the applicant gave her a ride.
52On July 10, 2012, Jen asked Laura how the new hires were working out and Laura told her she was having trouble with one; she says she was referring to the applicant, but she did not tell Jen which of the new hires she was talking about.
July 11, 2012
53The applicant states that on July 11, 2012, she worked from 9 a.m. to 12 noon; and that Cara was the trainer that day. This is not corroborated by the respondent’s work schedule which indicates Cara was originally scheduled to work that day but did not.
54This discrepancy in the evidence is important because the applicant argues the respondent crossed out Cara’s scheduled shift on July 11, 2012, after the fact in an effort to orchestrate a cover up. It is her submission that the respondent wants to hide the fact that Cara actually did work on July 11, 2012, because it was during that shift that Cara told Laura the applicant was pregnant.
55I am not prepared to find that the schedule has been falsified and Cara did in fact work on July 11, 2012, for the reasons that follow.
56The applicant filed into evidence a text message from Cara to the applicant dated July 10, 2012, indicating Cara planned on seeing Laura the next day. The applicant’s witness statement indicates this text says Cara was working the next day being July 11, 2012. However, the text in question does not actually say that although the entire text exchange from that day certainly implies it. The actual texts say Cara “for sure” expects to “see her tomorrow” but she is “not sure when [Laura] will be in”. Cara then reassures the applicant that she will disclose her pregnancy to Laura when the applicant is not around. Similarly, Cara’s witness statement says she spoke to Laura that day but does not say she was working. At the hearing Cara could not remember if she worked that day or not but confirmed that she commonly spoke to Laura on days she was not working.
57The difficulty I have with the applicant’s assertion that Cara worked on July 11, 2012, and the respondent is orchestrating a cover up is that the respondent’s schedule is persuasive evidence to the contrary. If the crossing out of Cara’s shift on the schedule was an after the fact cover up and Cara actually worked that day, then there should be a number beside the shift indicating the hours worked or some indication that the number of hours worked was whited out or otherwise disguised. The copy of the schedule entered into evidence by the respondent is a high quality colour copy. The original paper is lined and the space between the lines alternates; two shaded lines are followed by two unshaded ones. The two lines in the row for Cara’s schedule that week are both shaded ones. In my view any attempt to white out or otherwise conceal the number showing hours worked that day would be highly visible and impossible to conceal given the shading. As a result, I do not accept the assertion that Cara’s schedule was altered by the respondent after the Application was filed in an effort to cover up what happened that day and I am not prepared to find that Cara worked on July 11, 2012, as the applicant says she did.
58That being said, whether or not Cara worked that day is not really the issue; the question is whether or not she disclosed the applicant’s pregnancy to Laura and that question is discussed more fully below.
59The applicant also says there were two other trainees working at the same time as her on July 11, 2012, but one of them was only there a little time into the applicant’s shift. This is also not supported by the respondent’s schedules which show that one other trainee worked the same shift as the applicant from 9 a.m. to 12 noon. The schedule indicates only one additional new hire worked that day and she did not arrive until 1 p.m.
60There is no dispute that Leslee was working at the restaurant throughout the applicant’s shift on July 11, 2012, but the applicant says Leslee did not interact with the applicant. The applicant states she was going from station to station whereas Leslee was serving customers.
61Besides whether or not Cara was there the major dispute between the parties with respect to the events of July 11, 2012, is that Laura states that during the applicant’s shift she took her aside and spoke to her about her performance. Laura says she told the applicant she was going to have to work a little harder as it did not seem the applicant was as into it in comparison to the other girls and she needed to smile a little more. She further says that the applicant seemed a little taken aback by these comments and simply said okay in reply; Laura considers this to be a common reaction to such conversations. In contrast, the applicant says no one, including Laura, ever said anything to her about her performance until her employment was terminated on July 13, 2012.
62This evidentiary dispute is only relevant in that if Laura did in fact say these things to the applicant during her shift then it would tend to support the respondent’s overall assertion that the termination of the applicant’s employment was performance based and not related to her pregnancy. However, I would note that this factual dispute is not material unless the Tribunal rejects the respondent’s position that the applicant’s pregnancy could not have been a factor in the termination of her employment because Laura did not know about it.
63In resolving this evidentiary dispute between the parties I am mindful of the level of detail Laura provides in describing this conversation, the consistency of Leslee’s and Tanya’s observations of the applicant in the workplace, and the respondent’s Response and the applicant’s Reply.
64As regards to the Response and Reply, Rule 9.1 of the Tribunal’s Rules of Procedure states:
An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.
65In this instance the narrative in the Application does not mention performance except in the context of the final conversation terminating the applicant’s employment. That is consistent with the applicant’s evidence before me. However, the Response says:
After the applicant’s first shift, I told Cara that the applicant was not friendly and did not show the interest that the other girls did… During her second shift, I talked to the applicant about her lack of participation, not looking at customers and not completing tasks she started.
66Although the Response refers to the applicant’s second shift and July 11, 2012, was not her second shift, this statement in the Response is consistent with Laura’s testimony that she had a performance based conversation with the applicant. On January 14, 2013, the Registrar served the Response on the applicant which was accompanied by a letter setting out Rule 9.1 above. The applicant then filed a detailed Reply to the Response. The applicant’s Reply consists of three pages. She identifies the pages and paragraphs of the Response she disagrees with and gives details of her version of events, but does not challenge the statement in the Response that Laura had a performance based conversation with the applicant during one of her shifts.
67Given all of the above, I find that it is more likely than not that Laura did speak to the applicant briefly about her performance although the day that occurred is unclear.
July 12, 2012
68The applicant says that on July 12, 2012, she worked a two and a half hour shift. She further says Cara was present to do training and the applicant believes two other trainees were there at the same time. The respondent’s schedules confirm the applicant’s recollection except to the extent they show there was only one other trainee working at the same time as the applicant. The applicant and one other new hire were scheduled to work that day from 1 p.m. to 4:30 p.m. but were sent home an hour early at 3:30 p.m. Two other trainees worked that day but their shifts did not overlap with the applicant’s.
69It is not clear when but at some point in time Laura found out from Cara that the applicant was not available to work on Saturdays. The schedules show that originally the applicant was scheduled to work on Saturday, July 7, 2012, but that shift was whited over and crossed out. Laura says this was a problem for her as Saturday is the restaurant’s busy day when she needs people the most so when comparing the new hires she considered who could work the most.
Conversations about the Applicant’s Pregnancy
70As stated above the applicant disclosed her pregnancy to Cara’s mother and discussed it with Cara prior to starting to work at the respondent’s restaurant. But the applicant did not disclose her pregnancy to anyone else working for the respondent, including Laura. Instead, she asked Cara to disclose it to Laura for her.
71The applicant says that on July 8, 2012, she was giving Cara a ride home from work when she asked her if she had told Laura that the applicant was pregnant. For the reasons stated above, it is not clear to me that this occurred on July 8, 2012, or some other day. But I accept that it occurred at some point and as the applicant describes because there is no dispute between the parties that the applicant repeatedly asked Cara to tell Laura about her pregnancy. The applicant says she did this because she wanted to avoid any problems associated with disclosing her pregnancy to the respondent which is why she made sure Cara knew in advance of starting her employment. According to the applicant Cara told her that she had not told Laura but that she would and that she felt badly for not having done so earlier.
72Cara’s evidence paints a slightly different picture. She says that when the applicant asked her initially to tell Laura about her pregnancy, Cara demurred and told the applicant it was not a big deal and she should do it herself. The applicant disputes this. Cara describes the applicant’s subsequent and repeated requests that she tell Laura about the pregnancy as harassment; she says she told the applicant she would tell Laura to get the applicant off her back, but she never actually did tell Laura.
73On July 10, 2012, the applicant sent a text message to Cara asking Cara to disclose her pregnancy to Laura. Their text message exchange that day follows:
2:08 p.m. from applicant: Hey Cara… sooooo I was thinking and I’d like you to tell Laura ASAP just because I don’t like hiding it and from the girls at work even and if she isn’t into keeping me I would need to know right away Just not really a secret kinda person and it’s stressing me out lol! So if you can right away and let me know what she has to says would be greatly appreciated Thanks so much!!
[unknown time] from Cara: Hey. No prob! I completely understand… Im off today so ill for sure see her tomorrow and let her know…
[unknown time] from applicant: Okay I work 9 to 12 tomorrow would it be befor or after hahaha
[unknown time] from applicant: Just cause if she is not impressed might be a little awkward hahaha
[unknown time] from Cara: Lol. Not sure when she will be in … She usually comes by at some point in the day…
[unknown time] from Cara: Ill wait till u r not there, is that ok?
[unknown time] from applicant: Okay ya that’s better lol what are you thinking her reaction will be? Just curious! And sorry to bug ya on your day off
[unknown time] from Cara: No worries… Im not too sure because she has for [sure] changed on her views on prego women since she had a baby… I wouldn’t worrie. Im sure everything will be fine
[unknown time] from applicant: Okay thanks so much!!
[unknown time] from Cara: No prob. Sry for stressing ya… I was thinking about the other day too and I feel bad… I will tell her asap and im sure everything will be great!
[unknown time] from applicant: No worries! I’m just a need to know kinda girl lol
[Emphasis added.]
74The applicant subsequently sent a follow up text message to Cara on the evening of July 12, 2012, asking how Laura had taken the news about her pregnancy. Cara did not respond. Cara maintains she never told Laura about the applicant’s pregnancy.
75Laura also says Cara never told her the applicant was pregnant and she did not find out about it until after she decided to terminate the applicant’s employment. This question of whether or not Cara told Laura about the applicant’s pregnancy is discussed more fully below.
The Termination of the Applicant’s Employment
76The applicant asks the Tribunal to find the testimony of Laura and Jen Twigg not credible with respect to their telephone conversations of July 12 and 13, 2012. For the reasons stated below under “Analysis” I am not prepared to do that.
77On July 12, 2012, Laura called Jen asking for advice. She says they often do that. Laura informed Jen that she was going to terminate the applicant’s employment due to lack of interest, not being available Saturdays, and poor performance. As Jen puts it, the applicant was just not suitable for the respondent’s restaurant. Jen says Laura did not say anything about the applicant being pregnant but if she had it would not have mattered as the respondent has had a number of pregnant employees and it is not an issue that would be considered in terminating someone’s employment.
78Both Jen and Laura provided testimony with respect to the respondent’s history of hiring and retaining pregnant employees although their evidence is not entirely consistent. Given that Laura and Jen manage separate locations I am not prepared to find that these discrepancies in their evidence undermine either’s credibility.
79Jen says the respondent has hired one individual it knew at the time of hiring was pregnant; eight employees have left to go on maternity leave and six out of the eight have returned from their leave. Laura says going back seventeen years at least three times the respondent knowingly hired a pregnant woman; over the last five years she can remember at least five pregnancies at the Fraser Street location alone. One employee has been on maternity leave and returned following more than one pregnancy. The respondent filed into evidence hearsay statements from two of these employees attesting to the fact that they became pregnant while working for the respondent and continued to work while pregnant. One of the two returned to work for the respondent after maternity leave twice without incident. The applicant did not object to these statements being entered into evidence.
80Both Cara and Laura state that on July 12, 2012, Laura told Cara that she was going to terminate the applicant’s employment because of her lack of interaction with the customers and her unavailability for Saturdays. The applicant points out that Cara’s signed witness statement says this conversation occurred on July 11, 2012. That statement was signed in December of 2012. However, her affidavit sworn in June, 2013, says it was July 12, 2012. At the hearing this discrepancy was put to Cara during her testimony and she says that it was probably July 12 and not July 11, 2012; she says when she did the affidavit she was calmer and thinking more clearly.
81Laura says that on the morning of July 13, 2012, she was running errands and called the restaurant and spoke with Cara. She told Cara to call the applicant and tell her she was not needed for her scheduled shift that day. Cara also says she spoke to Laura that morning although Cara states she called Laura to tell her the applicant was scheduled to work that afternoon.
82Laura’s plan was to terminate the applicant later that day, once Laura had arrived at the respondent’s restaurant. It would appear from the evidence before me that Cara did not do what Laura asked her to do. Instead of calling the applicant to tell her she was not needed for her shift that day, Cara sent the applicant a series of texts messages indicating her employment was being terminated.
83The applicant’s scheduled shift on July 13, 2012, was to start at 1 p.m. That morning the applicant sent Cara another text asking her to confirm she had told Laura about the pregnancy. At 11:25 a.m. Cara texted the applicant back as follows:
Hey i did and I feel really bad but laura is worried its not gonna work… im so sorry tamra I really wanted to help ya but she was just concerned when u do get bigger its gonna be hard to do a lot of the work here. Please dont hate me!! I feel tireable
84Cara says what she wrote in this text is not true. She says she lied to the applicant about the reason for her termination because she believed it would be less upsetting to the applicant to think it was because of her pregnancy instead of her job performance.
85After receiving this text the applicant sent off a series of messages to Cara expressing her outrage and frustration. In them she says this was exactly what she was worried about at the beginning and the reason why she told Cara “10000 times to tell” Laura she was pregnant. In the texts she says she has given up job offers to work for the respondent and points out that it is illegal to fire someone because they are pregnant. Cara replied to all of the applicant’s angry texts telling the applicant the situation was all Cara’s fault, Cara was to blame for not telling Laura sooner, and apologizing for what was happening. Cara’s texts also say:
its not about your how you work its just how she know when she was pregnant she couldn’t do the tthings she was normally can do…
Laura is gonna call u… She doesn’t know that I known your were pregnant… I was just trying to help and now I screwed everything up!! Probley gonna lose two friends over this and I was just trying to help
86While these texts were being exchanged a number of other things were happening at the same time. Cara called Laura and told her that the applicant was freaking out and Laura should call her. Laura left nine voice mail messages for the applicant asking her to call back. The applicant was making phone calls asking for legal advice.
87The applicant and her spouse decided they would call Laura back and record the conversation. I assume they did this because they wanted to collect evidence that the applicant was being terminated because of her pregnancy.
88Their recording of this conversation was played at the hearing and entered into evidence. The applicant prepared a transcription of the recording that is not exact but close enough that the respondent did not object to it being relied on.
89Laura starts the conversation by asking the applicant if she got her message to which the applicant replies that yes she did. Laura then says:
Okay, so I just wanted to… be clear with you. You know we hired 6 girls when we did the sit down. Sometimes it works out; sometimes it doesn’t. You worked a couple of shifts and it’s just not working. It’s just strictly performance based. I don’t want you to be upset, like I’m really, really sorry that you’re upset or whatever but…
90At that point the applicant cuts her off and says:
I’m upset because Cara told you I’m pregnant and that’s why I am being terminated.
91Upon being confronted with this Laura says “absolutely not”. The conversation continues in this vein. The applicant appears agitated while Laura sounds relatively calm. Seven times Laura says “no” or otherwise indicates the termination was related to performance only. When the applicant says Cara wrote her an e-mail saying the termination was because of pregnancy Laura replies “Really?” She then states Cara is not an owner at which point the applicant again cuts her off saying Cara is a manager and in charge. Laura says nothing in response to this allegation. Laura asks the applicant to send her the e-mail in question which the applicant refuses to do. Near the end of the conversation the applicant informs Laura she is being recorded. The conversation ends with Laura agreeing to send the applicant her Record of Employment and outstanding pay.
92Both Laura and Jen Twigg say that shortly after this conversation with the applicant, Laura called Jen and they talked about it.
93Jen says this call occurred in the early afternoon and Laura was very upset. Laura told her that she had spoken to the applicant who was also very upset, that the applicant was going to contact the Tribunal, and she was accusing Laura of letting her go because she was pregnant. Jen also says Laura was upset in part because at the end of the conversation the applicant revealed she was being recorded without her consent and it seemed to Laura the applicant was being coached during the telephone call by someone in the background. This in fact was true. The applicant’s spouse, Danny, is heard on the recording a number of times coaching the applicant as to what to say. According to Jen Laura did not know what to do so she asked Laura if she knew the applicant was pregnant and Laura said no. Jen then told Laura she had not done anything wrong and had nothing to worry about.
94Laura’s testimony about this phone call is similar to Jen’s. She says she was very shocked by the conversation with the applicant; she had a baby at home to look after so the situation was very stressful. So she called her mother-in-law because Jen is a sounding board and co-owner of the business; Laura always talks to her about issues. She told her what had happened, that she had been recorded without her consent and heard someone in the background coaching the applicant. Laura says she told Jen that during the call the applicant had informed her she was pregnant and Laura asked Jen what she should do.
The Aftermath
95After the applicant’s employment was terminated she was very upset and felt considerable stress. The applicant says she was experiencing pain as a result of the stress and concerned about her pregnancy so she called TeleHealth Ontario which advised her to see her family doctor. She says she managed to get an appointment and went down to see him with Danny; she told Dr. Gushe about the stress caused by being fired by the respondent and that she was worried about the baby.
96Dr. Gushe confirms he saw the applicant on July 23, 2012, and that she told him her employment was terminated because of her pregnancy. He says she expressed emotional distress at being fired although that is not indicated in his records and he did not recommend she stay off work due to stress. He also does not confirm the applicant was complaining of pain. Rather his evidence is that the applicant’s pregnancy proceeded completely normally without any abnormalities or complications and she gave birth to a healthy baby boy.
97Not long after the applicant’s employment was terminated she started picking up part-time shifts working for K, doing a job she had done previously while living in North Bay. She got a second part-time job at a store just opposite from K’s store and worked up until December 26, 2012. When the applicant went on maternity leave she had accumulated enough hours for maternity benefits from EI.
98Laura says that after she spoke with the applicant on July 13, 2012, she asked Cara what the applicant was talking about when she said she had an e-mail from Cara saying the applicant was being fired because she was pregnant. According to Laura Cara told her she had no idea what the applicant was referring to. In her testimony Cara initially said this never happened; she was never asked about the text messages by the respondent. When I subsequently asked her if she had any memories of finding out about the dispute between the applicant and respondent, she said she had vague memories of lying about it and telling Laura she did not send text messages. As a result, I accept Laura’s evidence that she asked Cara about the text messages the applicant told her about in their phone call of July 13, 2012, and Cara told her she knew nothing about it.
99On November 28, 2012, the Tribunal served the Application on the respondent along with the text messages between the applicant and Cara. Laura says this was when she found out the text messages really did exist and what they said. Laura then went to Cara and confronted her; Cara started crying and could not complete her shift. Laura says Cara told her she could not remember sending the texts and she was sorry. Cara was not asked about this specific incident but both Cara and Laura say that Cara subsequently went to see a psychiatrist.
100After that K found out about the text messages and the allegations in the Application. The applicant says some time in December, 2012, she was coming into work for K when K yelled at her that because of the applicant Cara was going to lose her job. The applicant defended herself, K apologised, and the applicant continued working for K, but the applicant says their relationship has never been the same since.
101But the respondent did not in fact terminate Cara’s employment. Cara gave notice in April of 2013 and continued to work for the respondent until the end of June, 2013. I specifically asked Laura why she did not fire Cara for cause given that the Application means she is facing potential liability for Cara’s actions. Laura says Cara was devastated and embarrassed by what happened; she became depressed and Laura felt she was very fragile and she just would not terminate the employment of someone in that state although perhaps she should have. She also says she thought they would work through it and Laura could help Cara; and at the time she was hoping the Application would somehow be dismissed.
ANALYSIS
102This Application is based on section 5(1) of the Code which says that every person has a right to equal treatment with respect to employment without discrimination because of sex. The rights provisions in the Code are clarified by s. 10(2) which states:
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.
103The parties agree that what this means is that the Tribunal must determine if the applicant’s pregnancy was a factor in the respondent’s decision to terminate her employment. If Laura is the person who made that decision and she did not know about the pregnancy at the time, then it cannot be said the applicant’s pregnancy was a factor in the respondent’s decision. The applicant does not dispute that Laura was the person who made the decision to terminate the applicant’s employment. She does not allege that Cara played a role in that decision. So the first key factual question to be answered is: did Laura know about the applicant’s pregnancy when she made the decision to terminate her employment? For the reasons stated below I am satisfied the answer to this question is no.
104If the Tribunal were satisfied that Laura knew about the applicant’s pregnancy at the time the decision to terminate her employment was made the next question would be whether or not the pregnancy was a factor in the decision to terminate. Because of my finding that Laura did not know, this question need not be addressed.
105At the hearing I raised the question of whether or not the respondent can be held liable under the Code for Cara’s behaviour regardless of whether or not the respondent was aware of the pregnancy at the time the decision to terminate the applicant`s employment was made. I did so because even if the decision to terminate the applicant’s employment was not discriminatory, Cara’s behavior in telling the applicant otherwise in a series of texts had the same impact on the applicant as if she had actually been dismissed because of her pregnancy. This issue is discussed below under the heading “The Harassment Issue”. For the reasons stated I am satisfied that whether or not Cara’s behaviour constitutes sexual harassment, the respondent cannot be held liable for it due to the wording of s. 46.3(1).
Did Laura Know About the Pregnancy?
106The applicant argues that the Tribunal should find that Cara told Laura about the applicant’s pregnancy, that this probably occurred on July 11, 2012, and that both Cara and Laura should not be believed when they say she did not. Implicit in the applicant’s arguments is the assertion that this disclosure occurred prior to the point in time when Laura decided to terminate the applicant’s employment.
107Specifically the applicant argues:
The hearsay content of Cara’s texts should be accepted as true; namely, that Laura had a negative attitude about pregnant workers, Cara told Laura the applicant was pregnant, and Laura decided to terminate the applicant’s employment because of pregnancy related concerns;
Cara’s statement to the applicant on June 22, 2012, that the applicant should not reveal her pregnancy to Laura, supports the proposition that Laura had a negative attitude towards hiring pregnant women;
Cara admitted in her testimony telling Laura on July 13, 2012, that the applicant was pregnant (this allegation is explained further below);
Cara and Laura conspired to hide the fact that Cara worked on July 11, 2012, which is the date the applicant contends Cara told Laura about her pregnancy (this contention is rejected for the reasons stated above under “Findings of Fact”); and
Cara’s explanation that she lied to the applicant because she felt it would be less stressful for her to believe the dismissal was due to her pregnancy rather that her performance is unreasonable and not believable.
108In addition, the applicant argues that Laura and Jen should be found not credible because:
Laura did not cite the applicant’s unavailability for Saturdays as an issue during the termination conversation of July 13, 2012;
The assertion that the termination was based on performance is not believable given the brief period the applicant was employed;
Jen is not credible because as a co-owner she has a vested interest and Jen naturally wishes to support her daughter-in-law; and
An adverse inference should be drawn against the respondent because it failed to call Cara as a witness.
The Credibility Issues
109In this Application the applicant does not have personal knowledge of the key factual question of whether or not Cara told Laura about the applicant’s pregnancy. She was not party to or a witness to any such conversation. Rather the applicant relies on the hearsay texts sent by Cara. She asserts the Tribunal should accept as truth the contents of those texts even though their author says it should not. Although not explicitly stated by the applicant this means the position she urges on the Tribunal is necessarily based on the assertion that each of the respondent’s witnesses was untruthful in their testimony either in whole or in part as was Cara.
Jen, Leslee and Tanya
110For example, the applicant asserts that her pregnancy was the reason for her termination and not simply one factor in the decision made by the respondent. She argues that the text sent by Cara in which Cara says “its not about your how you work” should be accepted as the truth of its contents meaning the respondent had no performance concerns at all. In order to accept this proposition I would not only have to find Laura not credible but I would also have to make a similar finding with respect to Jen, Leslee, and Tanya.
111I am not prepared to find Leslee and Tanya lack credibility when they say they had reservations about the applicant’s performance and reported them to Laura. Leslee says the applicant did not fit in with the team structure; Tanya says her demeanor was “uninterested”. Both say they reported their negative observations about the applicant to Laura. Even Cara states that the applicant does not come across as friendly. Although Leslee and Tanya offered similar evidence they differed in their use of words and emphasis so they did not sound rehearsed. I would also observe that the applicant did not put to them during their cross-examination the proposition she essentially urges on the Tribunal, namely that they were fabricating their evidence, presumably to support their friend and employer.
112Leslee and Tanya’s evidence is corroborated by Laura and for the reasons stated above, I accept Laura’s evidence that she had a brief performance related conversation with the applicant and conveyed her concerns that the applicant’s demeanor was lacking and she needed to smile more and try harder.
113In my view there is really no reason to question the credibility of Leslee and Tanya except for the applicant’s assertion that there is an after the fact cover up being colluded in by at least Laura and Cara.
114I would make a similar observation about Jen Twigg. To accept the applicant’s assertion that Laura had no performance concerns I must necessarily find that Jen is being untruthful when she corroborates Laura’s testimony about their conversation on July 10, 2012, which is a date before the applicant alleges Cara told Laura the applicant was pregnant, and their conversation on July 12, 2012.
115The applicant asserts that Jen should be found not credible because she has a vested interest in the outcome with respect to this Application and a natural tendency to support her daughter-in-law. In my view the vested interest argument is one that cuts both ways in civil litigation; both applicant and respondent have a vested interest in the outcome of litigation, so relying on a vested interest as being indicative of credibility is seldom persuasive.
116Outside of the vested interest argument the only other issue that arose with respect to Jen’s credibility concerns the conflicting testimony she and Laura gave about the number of pregnant women the respondent has employed over the years. For the reasons stated above under “Findings of Fact” I do not believe this discrepancy undermines either Jen’s or Laura’s credibility.
117As is the case with Leslee and Tanya this means the core challenge to Jen’s credibility is the assertion that there is a concerted effort by the respondent and its witnesses to cover up what really happened. That bald assertion is not sufficient to support a finding that these witnesses are not credible.
118This does not mean that collusion between a party and their witnesses in presenting an untruthful explanation of events does not happen; it does. But to prove such a thing requires the applicant to establish that there are sufficient inconsistencies or logic gaps in the alleged collaborators’ various testimonies to support the proposition that it is more likely than not that their version of events is not true. That is not the case here.
Laura
119With respect to Laura’s credibility the applicant relies on various things said or texted by Cara; Laura’s failure to mention the applicant’s unavailability for Saturdays as an issue during the termination conversation of July 13, 2012; the brief period the applicant was employed; and the invitation to draw an adverse inference from the respondent’s failure to call Cara as a witness.
120The weight to be given to Cara’s statements about Laura and to the texts is discussed below in the context of Cara’s credibility as is the invitation to draw an adverse inference.
121With respect to Laura’s failure to mention Saturday was an issue for her during her telephone conversation with the applicant on July 13, 2012, it is true she failed to mention it but Laura was never asked during her testimony why that was the case. Having listened to the taped conversation I would say the most striking thing about it is that Laura says very little and is repeatedly cut off by the applicant who understandably sounds very angry. In the absence of Laura being asked to explain why she does not mention the Saturday issue during this conversation, the recording must stand on its face and it presents an alternative and logical rationale; namely, Laura does not mention it because the applicant cut her off before Laura had a chance to do so.
122The applicant argues that her termination could not have been based on performance because she only worked a total of 15 hours which is not enough time for the respondent to form a reasonable opinion as to her performance. In this regard the applicant refers the Tribunal to its Decision in Defina v. Lithocolor Services Ltd., 2012 HRTO 1768. I do not find Defina, above, very helpful as in that instance there was no evidence led about the respondents’ alleged performance concerns except for bald after the fact allegations. That is not the case here.
123The applicant also argues that the fact the applicant worked for such a short period of time before being terminated supports the proposition that the termination was not performance based because 15 hours is not enough time to evaluate the performance of someone still learning the job. I find that the respondent’s evidence that it is common for new hires not to fit in and you can tell within just a handful of shifts is consistent and credible. Even the applicant acknowledges she was explicitly told during orientation that the work is not for everyone and one in three do not make it. Laura’s testimony about the need to smile and interact with customers indicates that for her the demeanor of her servers is an important part of the respondent’s brand; in many if not most jobs that is not a performance issue but for Laura it clearly is, and demeanor is something that can be observed and assessed in a very short period of time.
124As can be seen from the “Findings of Fact” above I have rejected some of Laura’s evidence (for example, with respect to whether or not employees are ever told they are being hired for full time work) and some of the applicant’s (for example, with respect to her assertion that nothing was ever said to her about performance). It is not uncommon or even unusual for a trier of fact to accept part of a witness’s testimony but not all of it. See for example: Shah v. George Brown College, 2009 HRTO 920 at para. 22; Loomba v. Home Depot Canada, 2010 HRTO 1434 at para. 17; Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 at para. 54; and Macan v. Strongco, 2013 HRTO 841 at para. 81. As is the case with the applicant, the existence of these kinds of adverse findings with respect to some aspects of Laura’s evidence does not assist the Tribunal in making an overall assessment of credibility or answer the key question of whether or not Laura knew about the applicant’s pregnancy at the time she decided to terminate her employment.
125At the hearing I asked questions and invited submissions about Laura’s credibility because she did not terminate Cara’s employment after she received the Application and the text messages. At that point she ought to have been aware that Cara’s behaviour arguably put the respondent at risk of legal liability. In addition, Laura’s behaviour in not firing Cara is arguably consistent with the applicant’s theory that Cara and Laura are colluding and covering up what actually happened.
126As stated above Laura’s explanation for this behavior is that maybe she should have fired Cara but it would have been out of character for Laura and Cara was devastated, humiliated, and fragile and Laura wanted to help her.
127I believe it is reasonable for me to say that most employers would not have reacted this way and would have immediately terminated Cara’s employment. This is reflected in K’s yelled comment to the applicant when K found out about the Application; namely, that Cara was probably going to lose her job.
128Having considered all of the evidence carefully I have come to the conclusion that although Laura’s behaviour in this respect may seem unusual in comparison to other employers, it is consistent with the respondent’s evidence concerning how Laura perceives the workplace and her employees. All of her employees are her friends. They work together as a team constantly helping each other out. In that context Laura’s behaviour may be unwise but it is also sufficiently consistent with the way she runs her business that I am not prepared to find that it is evidence in support of the proposition that Laura is not credible and is colluding with Cara to orchestrate an after the fact fiction to hide the reason why the applicant was dismissed.
Cara
129For the reasons stated below I have come to the conclusion that it is unsafe to rely on Cara’s testimony with regards to any material issue because she is not a credible witness. This means that the fact she now denies the truth of the contents of her text messages does not assist the Tribunal in determining whether or not she told Laura about the applicant’s pregnancy. So the content of the text messages and what she said to the applicant must be looked at in the context of the other evidence.
130The applicant invites the Tribunal to conclude that Laura has a negative attitude about hiring and employing pregnant workers. Although Cara claims it was the applicant who decided on her own not to tell Laura about her pregnancy until she was ready, for the reasons stated above I accept the applicant’s testimony that Cara told her to wait until Laura had a chance to see her perform in the job. This evidence tends to support the proposition that Laura would react negatively to learning about the applicant’s pregnancy.
131The applicant also urges the Tribunal to accept the truth of the contents of the texts sent by Cara over her testimony. One of the texts exchanged July 10, 2012, says “she has for [sure] changed on her views on prego women since she had a baby”. Laura’s baby was born in April, 2012, prior to the applicant being hired. During reply submissions the applicant took the position that this text means that prior to April, 2012, Laura did not have negative views about hiring or employing pregnant women but afterwards she did. However, that proposition is negated by the next part of the text which says: “I wouldn’t worrie. Im sure everything will be fine”. This presumably means that in Cara’s view the applicant has no reason to worry about disclosing her pregnancy to Laura. In other words, the last part of the text tends to support a conclusion opposite to the one put forward by the applicant; namely, that if Laura ever had a negative attitude towards pregnant women it was before she herself gave birth rather than after. As a result, even if the Tribunal were to accept the truth of the contents of the text in question, it does not support the conclusion that at the time the applicant’s employment was terminated Laura had a negative attitude towards pregnant employees.
132The other evidence with respect to Laura’s attitude toward pregnant workers is the respondent’s history. The applicant does not challenge the respondent’s evidence that Laura herself worked throughout her pregnancy or its evidence that it has hired and employed pregnant women quite routinely in the past. The respondent prides itself on its record of supporting women. It led evidence, also uncontested, of how it was the site of a commercial shot by the local Health Unit. The purpose of the commercial was to encourage breastfeeding by publicising the fact that women are legally entitled to breastfeed in public. The commercial showed women breastfeeding at the respondent’s restaurant.
133Despite the fact that I accept Cara told the applicant not to disclose her pregnancy until Laura had a chance to assess her performance, I am not prepared to find that it is more likely than not that Laura has a negative attitude towards hiring or employing pregnant women. I say this in part because the respondent’s history of hiring and retaining pregnant workers and Laura’s own experience in working throughout pregnancy indicate that it is unlikely pregnancy concerns would factor in the respondent’s decisions to terminate employment. I would also say in this context that Cara’s testimony and behaviour before the Tribunal indicate Cara sometimes says and does things she does not really mean.
134The key text message sent by Cara to the applicant is the one sent on July 13, 2012, at 11:25 a.m. in which Cara tells the applicant she told Laura about the applicant’s pregnancy and says that Laura is concerned it will not work out because the work will become too hard for her as she gets bigger.
135In support of the proposition that the Tribunal should accept this text’s contents as true the applicant impliedly or explicitly points to: Cara’s alleged admission during her testimony that she told Laura the applicant was pregnant; the telephone call in which Laura tells the applicant her employment is terminated; an air of unreality attached to Cara’s explanation for this text; and another text sent a little later.
136With respect to Cara’s alleged admission during her testimony that she told Laura the applicant was pregnant, this part of her testimony was linked to the telephone call that Cara made to Laura on the morning of July 13, 2012, in which she told Laura that the applicant was freaking out. Her evidence in this regard is as follows:
Q. Your affidavit claims the morning of July 13 you called Laura and told her that [the applicant] was freaking out?
A. Yes.
Q. What did you say [the applicant] was freaking out about?
A. She felt that she was being terminated because she was pregnant but that wasn’t the case.
137The applicant relies on this testimony as support for the proposition that Cara told Laura the applicant was pregnant. As indicated above and explained below, I am not prepared to rely on Cara’s testimony on any material issue because of concerns with her credibility. However, even if I were to accept the truth of this part of Cara’s evidence, it does not assist in establishing the applicant’s employment was terminated because of her pregnancy. I say this because it is undisputed that the phone call Cara made to Laura during which she tells Laura the applicant is freaking out occurred after Cara sent the texts indicating to the applicant her employment was going to be terminated. In other words, even if Cara’s alleged admission of disclosure to Laura occurred, it was after Laura made the decision to terminate the applicant’s employment, after Laura communicated that decision to Cara, and after Cara communicated it to the applicant. As a result, even if the Tribunal accepts Cara’s testimony in this regard, which I do not, it does not indicate Laura knew about the applicant’s pregnancy prior to making the decision to terminate the applicant’s employment. At best it might indicate Laura knew of the pregnancy before calling the applicant to convey to her the respondent’s decision, but that merely echoes the respondent’s assertion that the applicant’s employment would have been terminated for performance reasons even if the respondent had known of her pregnancy.
138I would also observe that Laura was never asked in her testimony what Cara said to her during their telephone conversation. However, she does discuss it in the Response which says:
Cara called me immediately after sending this text and told me that the applicant was freaking out. I was under the impression that Cara had simply contacted the applicant to cancel that day’s shift as I had asked, so was confused why she should be so upset.
139With respect to the contents of the telephone call between Laura and the applicant in which Laura tells the applicant her employment is being terminated, in addition to Laura’s failure to mention Saturdays as an issue discussed above, the applicant points to her failure to dispute the applicant’s statement that Cara is a manager. She also seemed to imply at the hearing before me that Laura’s calm tone should be taken as support for the proposition that Laura already knew all about the applicant’s pregnancy.
140When Laura was asked about her response during the call to the applicant referring to Cara as a manager Laura initially stated that she is unsure but she thinks she would have said something like no. When directed to the transcript of the call Laura then said it does not look like she did that after all but she also pointed out that she never said Cara was a manager either, which is true.
141As for her tone, I would agree that Laura sounds relatively calm during her conversation with the applicant although she expresses incredulity when the applicant says she has an e-mail from Cara saying the reason for the termination is her pregnancy. Although her tone might be consistent with her already knowing about the pregnancy, it is also arguably consistent with what one expects from an employer who has experience or is making an effort to be professional in terminating an employee early in their employment.
142In the end result, I believe the telephone conversation in which Laura conveys the decision to terminate the applicant’s employment arguably supports both parties’ evidence. For example, Laura asks the applicant if the applicant got her message, which appears to confirm Laura told Cara to inform the applicant her shift that day was cancelled. She says “Really?” in response to being told about Cara’s texts and asks the applicant to forward them to her. After telling the applicant her employment is being terminated for performance reasons, she immediately says she is sorry the applicant is so upset which confirms the evidence that Cara called Laura and told her the applicant was upset but makes little sense if Cara actually told Laura why the applicant was upset.
143The applicant also takes the position that Cara’s explanation for sending the text is so unreasonable it is not to be believed. This is a reference to Cara’s explanation that she lied to the applicant because she thought the applicant would be less upset at being terminated for being pregnant than for performance reasons. I would point out that Cara also said she lied to the applicant because she wanted to get the applicant off her back about disclosing her pregnancy to Laura. But to engage with the applicant’s argument, I agree that there are significant credibility issues with respect to Cara’s evidence; however, I do not agree that Cara’s response in this regard is particularly unreasonable.
144I say this because it is not unknown or even uncommon for people to prefer to believe that the bad things that happen to them are not their own fault but rather someone else’s. Being fired because one is pregnant is a situation in which the pregnant woman is going to be upset, but it is also one in which she is perfectly correct in thinking herself utterly blameless. In that scenario someone else has done something wrong, not the pregnant woman. Being fired for performance problems is another story entirely. It is extremely difficult for some people to accept the criticism implicit in such an event. I do not find it at all hard to believe that Cara might be one of those people who prefer being lied to over having to face unpleasant truths. So I am not prepared to find that the content of the text must be true because Cara’s alternative explanation for it is so unreasonable as to be unbelievable.
145This reasoning is also arguably applicable to the next text in which Cara says “its not about your how you work”. The applicant asserts this text should be taken as support for the proposition that the decision to terminate her employment had nothing to do with her performance. For the reasons stated above with respect to the evidence of Jen, Leslee, and Tanya, that assertion is not supported by the rest of the evidence. Rather, an alternative and not unreasonable explanation is that Cara genuinely believed this would make the applicant feel better about losing her job.
146The other relevant text that Cara sent that day is the one in which she says Laura is going to call the applicant and does not know Cara knew about the applicant’s pregnancy. Cara states she does not recall sending this text and all she meant to say was that Laura was going to call the applicant. However, she also agrees that she had concerns about Laura finding out that Cara knew about the applicant’s pregnancy. Cara was not asked to explain why she might be concerned about that. As a result, it is speculative and unsafe to assume it means that Laura would be upset to discover Cara knew about the pregnancy at the time the applicant was hired because Laura would not have gone along with the hiring if she had known. It is possible and equally speculative that if asked Cara might have said the respondent was so supportive of women in the workplace that the applicant’s pregnancy might have caused it to regret the decision to dismiss the applicant. It is also possible that Cara was simply alluding to the fact that Laura was her close friend, and she would be upset to discover Cara did not share everything with her. Maybe Cara was concerned Laura would find out about the lies she had told the applicant.
147The applicant asks the Tribunal to draw an adverse inference from the respondent’s failure to call Cara as a witness. This is a reference to the fact that the Tribunal has stated on several occasions that the failure of a party to call a material witness within its control with direct knowledge of the facts gives rise to a rebuttable adverse inference. (See for example: Shah v. George Brown College, 2009 HRTO 920; Abdollahnejad v. Toronto Police Services Board, 2011 HRTO 1142; and Heintz v. Christian Horizons, 2008 HRTO 22.) The inference is that the witness was not called by the respondent because his or her testimony would not be wholly supportive of its position.
148In the context of this Application Cara was called as a witness, albeit by the applicant after an adjournment was granted for that purpose. Cara was originally proposed as a witness by the respondent. It filed and delivered a witness statement for her; a signed statement by her accompanied the Response; and it included her affidavit in the respondent’s documents to be relied on. As a result, on the first day of hearing before me it was my expectation and that of the applicant that the respondent would call Cara as a witness but it did not. When the respondent’s intentions were disclosed I raised the issue of Cara’s affidavit as it seemed to me there was now an issue as to its admissibility given that the applicant was not provided with an opportunity to cross-examine the affiant. The respondent then asserted it was entitled to rely on the affidavit as there is no ownership in a witness and the applicant could have named her as a witness if her evidence was vital to the applicant’s case. By that point in the hearing the applicant had already consented to Cara’s affidavit being admitted into evidence albeit based on the false assumption the respondent would be calling her to testify. In order to resolve this issue I invited the applicant to request an adjournment so that she could call Cara as a witness, which she subsequently did.
149I do not believe the traditional adverse inference analysis applies in this situation because it addresses those instances where a witness is not called; here Cara was called. This means the Tribunal is in a position to judge her evidence and her credibility directly and there is no need to draw inferences. Perhaps what the applicant is really trying to say is that the respondent’s behaviour in misleading the applicant as to its witnesses until after all the other evidence was heard was sharp practice and an adverse inference should be drawn from that behaviour.
150Whether or not the respondent’s behaviour in this respect constitutes sharp practice is a matter beyond the Tribunal’s jurisdiction but I do agree it would have been preferable if the respondent had notified the applicant and the Tribunal that it did not intend to call Cara as a witness as soon as that decision was made which was sometime prior to the commencement of the hearing. That being said, I am not prepared to draw any inference with respect to the respondent’s evidence due to this behaviour. I say this because Cara’s testimony and behaviour before the Tribunal was such that any party trying to prepare her to testify in advance encountering the same behaviour would be justified in concluding her evidence was not going to assist the Tribunal or either party.
151Cara was a reluctant and difficult witness.
152After being served with the summons to appear she contacted the Tribunal and requested it permit her to testify via teleconference or adjourn the hearing. On December 17, 2013, the Tribunal issued a Case Assessment Direction stating the hearing was proceeding as scheduled and the witness was expected to appear in person.
153Given the history of her participation in the hearing as a witness I permitted the applicant to treat her as a hostile witness. In the interests of procedural fairness I also permitted the applicant to ask any relevant question the applicant wanted to even if it was outside the scope of Cara’s written statements and affidavit.
154When Cara attended to testify the day after the Tribunal issued its Case Assessment Direction, she appeared visibly nervous; she asked that she be permitted to sit in a way that meant she would not have to look at either party. I granted this request and suggested she look at me throughout her testimony. She was sufficiently reluctant to speak that her answers to some questions were spoken so softly I could not hear her even though she was speaking directly to me. I repeatedly had to interrupt to say I could not hear and to ask her to answer the question again. Although in these instances her initial answers were too soft for me to hear in their entirety I heard enough to get the distinct impression that Cara’s initial answers did not always match her subsequent ones.
155She was also occasionally sarcastic. For example, after being challenged concerning her evidence that she could not remember sending many of the texts in question she flippantly remarked she also could not remember what she did last week. This kind of response indicates to me Cara was not taking her obligation to tell the whole truth very seriously.
156Cara’s answer to many questions put to her about the texts was she could not remember sending them. She denied sending at least one of them. When asked about the text in which she writes Laura has “changed on her views on prego women since she had a baby” she claimed she simply meant her friend had changed since having a baby. She also changed her answers about the texts. For example, with respect to the July 13, 2012, text in which Cara says she told Laura about the applicant’s pregnancy, Cara initially denied the text actually says that. Instead she said it merely says “Laura is worried”. She was referred to the entire text string and particularly the one just before it and eventually conceded albeit reluctantly that the text in question says she told Laura about the applicant’s pregnancy. In other words, the answers Cara gave about the texts were not forthright; she was clearly being evasive.
157She also provided demonstrably untrue answers. For example, she testified that Laura interviewed the applicant for the position. She also admitted to lying to impress people. (I had previously asked Laura if she was aware of Cara telling lies and she reluctantly conceded that yes she was aware of that.)
158Given all of the above, I am satisfied that Cara’s evidence in general is not credible and cannot be relied on with respect to any material questions of fact that arise in this Application. This means that the question of whether or not Laura knew about the applicant’s pregnancy or not really rests on Laura’s credibility and for the reasons stated above I am not prepared to find that Laura is generally untruthful and is lying when she says she did not know about the applicant’s pregnancy; nor am I prepared to find that the hearsay text messages sent by Cara should be accepted for the truth of their contents.
159As a result, I find that the evidence is insufficient to establish that the applicant’s pregnancy was a factor in the decision to terminate her employment and I am not satisfied that it was a breach of s. 5(1) of the Code.
The Harassment Issue
160Despite the fact that the applicant’s pregnancy was not in actuality connected to the respondent’s decision to terminate her employment, Cara’s behavior in telling the applicant otherwise in a series of texts had the same impact on the applicant as if she had actually been dismissed because of her pregnancy. This raises the question of whether or not Cara’s behaviour might arguably constitute sexual harassment pursuant to section 7(2) of the Code. It says:
Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee. [Emphasis added.]
161Given the intent of the Code, and the wording of s. 5(1) and s. 10(2) as quoted above, this provision also provides freedom from harassment in the workplace because of pregnancy.
162Harassment is defined in s. 10(1) as follows:
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome
163Cara is not a party to this Application so it is neither necessary nor appropriate to make a finding her behaviour constitutes sexual harassment under the Code; but it is fair to say that an employee may be found to have engaged in a course of vexatious comment or conduct towards an applicant where it is established that the employee:
Told the applicant for no apparent reason not to disclose her pregnancy to their mutual employer;
Lied to the applicant repeatedly about intending to disclose the pregnancy on the applicant’s behalf;
Made gratuitous statements about the employer’s attitude towards pregnant women;
Pretended she informed the employer of the applicant’s pregnancy when she had not; and
Then sent a number of texts falsely indicating the employer was terminating the applicant’s employment because she was pregnant.
164Similarly, it is fair to say that the Tribunal might find that a reasonable person would know that telling a co-worker a series of lies designed to make them believe they were being terminated from employment for a discriminatory reason is conduct that is going to be unwelcome.
165Although s. 7(2) explicitly includes the behaviour of one employee towards another, s. 46.3(1) indicates the respondent cannot be held liable for Cara’s behaviour even if it is found to be a breach of s. 7(2). Section 46.3(1) says:
For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization. [Emphasis added.]
166As stated by the Divisional Court in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876, at para.32, what this provision means in part is as follows:
Thus, under the Code, a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to sexual harassment. Those complaints are to be brought against the individual who actually committed the harassment.
167That being said an employer can be held liable in harassment situations where it is aware of the behaviour of its employee and fails to take reasonable steps to correct it. (See Farris, above, at para. 33.)
168In this instance the evidence establishes Laura knew nothing about Cara’s texts until her conversation with the applicant on July 13, 2012, and she responded reasonably by asking the applicant to send her the texts. When the applicant refused to send them to her Laura further acted reasonably by questioning Cara about them but Cara denied knowing what the applicant was talking about. At that point in time there was really nothing further the respondent could do. It was not until after the Application was filed that the respondent actually discovered what Cara had done.
169Given all of the above, the Application must be dismissed.
DECISION
170The Application is dismissed.
Dated at Toronto, this 2nd day of April, 2014.
“Signed by”
Ruth Carey
Member