Merchant v. Universal Staffing Inc., 2015 HRTO 1387

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ambreen Merchant

Applicant

-and-

Universal Staffing Inc.

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: October 19, 2015

Citation: 2015 HRTO 1387

Indexed as: Merchant v. Universal Staffing Inc.

WRITTEN SUBMISSIONS

Ambreen Merchant, Applicant

Self-represented

Universal Staffing Inc., Respondent

Robert Laurenza, Representative

1This is an Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex, specifically pregnancy.

background

2The applicant worked for the respondent, a staffing agency, as a Staffing Coordinator in the respondent’s Brampton office from January 27, 2014 until the termination of her employment on September 19, 2014. In her Application, the applicant states that her manager changed about a month prior to her dismissal. The previous manager was aware that the applicant was pregnant and had given the applicant a very good performance appraisal. The applicant states that she had been given no warnings about her performance. The applicant states that the new manager found out about her pregnancy and dismissed her because he did not want her to go on leave and come back.

3The respondent denies this allegation and asserts that it dismissed the applicant because she was not suitable for her position. The respondent states that it made her aware of the shortcomings in her performance and tried to assist her in meeting her work responsibilities for over two months, without success. The respondent states that the applicant continued to be unsuccessful in her performance and also showed resistance to managerial changes the respondent made and displayed a poor attitude. The respondent states that the decision to dismiss the applicant was based solely on her performance and without regard to her pregnancy.

The hearing

4The Tribunal heard this matter on July 13 and 14, 2015. The applicant testified and presented one other witness, Kseniya Pysarenka. The respondent presented five witnesses: Tracey Cassar, the Branch Manager of the Brampton office when the applicant was hired; Robert Fragomeni, Ms. Cassar’s successor; Ed Ongpauco, the respondent’s Operations Manager; Camille Haffizulla, one of the applicant’s co-workers; and, Robert Laurenza, the president and owner of the respondent.

Evidence

The Applicant’s Evidence

(i) Kseniya Pysarenka

5Ms. Pysarenka testified that she worked with the applicant for about three months, from June 2014 to September 2014. Ms. Pysarenka left the respondent’s employ on March 15, 2015. Like the applicant, Ms. Pysarenka was a Staffing Coordinator. A Staffing Coordinator’s duties include placing candidates with clients who have vacancies. A Staffing Coordinator must communicate with clients, both to inform them of available candidates and to follow up with clients about the progress of employees. Staffing Coordinators must also interview candidates to learn as much as possible about their skills in order to match them to jobs.

6Ms. Pysarenka’s evidence was that the applicant was assigned to the respondent’s top three clients. Ms. Pysarenka was also responsible for updating the respondent’s database regarding placements and therefore was aware of the number of placements. According to her, there were some orders that no one was able to completely fill. She estimated that the respondent was able to fill approximately eighty per cent of the orders from its top three clients. Ms. Pysarenka stated that the applicant was pleasant and respectful to her and displayed no attitude. Ms. Pysarenka was not aware of any issues with the applicant.

(ii) The Applicant

7The applicant testified that Angela Laurenza, who was identified as holding a senior position for the respondent and was in charge of human resources, hired her in January 2014 and was supervised by Ms. Cassar until August 2014, when Mr. Fragomeni became the Branch Manager in Brampton. Under Ms. Cassar, the applicant’s hours were 8 a.m. to 4:30 p.m. When Mr. Fragomeni took over, the respondent hired more coordinators and expanded its hours of operation. The applicant began working on the morning shift from 6 a.m. to 2 p.m., while others worked shifts of 10 a.m. to 5 p.m. and 10 a.m. to 7 p.m. The applicant's evidence was that she was responsible for the respondent's top three clients and sometimes did training, orientation and job fairs on their premises. The applicant stated that she received only one performance review during her employment, which Ms. Cassar conducted. The applicant stated that the review contained constructive criticism, consisting of small things to work on and did not identify any real issues. The applicant’s impression was that Ms. Cassar thought well of her. The applicant stated that she received a bonus of $50 in June 2014 because of client orders she had filled.

8The applicant testified that she advised Ms. Cassar that she was pregnant in the second week of May 2014. According to the applicant, Ms. Cassar congratulated her and advised the applicant to inform her when she intended to go on leave. The applicant stated that she advised Ms. Cassar that her leave would begin at the end of November 2014. Ms. Cassar informed the applicant that the respondent would hire a replacement to cover the applicant during her leave and would have the applicant train the replacement. Ms. Cassar also advised that the applicant would return to work after her leave and should advise the respondent when she wanted to return to work.

9After Mr. Fragomeni assumed the Branch Manager position, the applicant sometimes took work home and sometimes stayed at work longer. The applicant stated that she used her personal cellular phone and e-mail to do work and make calls. The respondent hired Ms. Haffizulla to be the applicant's replacement after Mr. Fragomeni became the Branch Manager.

10The applicant testified that she assumed Mr. Fragomeni knew she was pregnant. Both Ms. Cassar and Ms. Laurenza were aware of her pregnancy and she had sent e-mail messages to Mr. Fragomeni regarding pregnancy related medical appointments. The applicant also stated that Ms. Kensenya, a co-worker, informed her that on or about September 5, 2014 Mr. Fragomeni had made inquiries to her about the applicant's pregnancy. The applicant found this odd because she was clearly pregnant by that time. The applicant stated that on September 19, 2014 she had a meeting with Mr. Fragomeni when he raised the issue of conducting criminal records checks. During this meeting the applicant confirmed she was pregnant. Mr. Fragomeni became angry during the meeting, left the room and slammed the door.

11In cross-examination, the applicant stated that she had not been aware that it was Mr. Laurenza, not Mr. Fragomeni, who made the decision to dismiss her. She agreed that Mr. Laurenza signed the termination letter. The applicant agreed that she spoke to Mr. Fragomeni about her pregnancy, including her medical appointments and her maternity leave. She agreed that he was fully aware of her pregnancy and that the respondent had accommodated her and hired Ms. Haffizulla to cover her leave of absence. The applicant stated that she was not sure why the respondent waited until September 19, 2014 to dismiss her. She stated that she thought she was doing well and received no criticism.

12The applicant agreed that the performance evaluation documents indicate "Needs Improvement" in several areas. She stated that the evaluation was constructive criticism and that she felt good about the evaluation, as she continued working. The applicant stated that Mr. Fragomeni coached the staff, as a group, about needing improvements, but not her specifically.

13The respondent put an e-mail message to the applicant that she sent to Mr. Fragomeni on August 11, 2014. The message describes her efforts for the day in filling orders. In the message, the applicant indicated that she had been able to do some orders, but did not book any for Canpar, one of the respondent's largest clients, which she would work on this the next day, and updated other matters. The applicant stated that the message showed that she was trying to meet her responsibilities and did not give up. The respondent suggested to her the message indicated that she filled very few orders and none for an important client. The applicant responded that she had many orders to fill and that others could have helped her. She agreed that she could have expressed herself better.

14The respondent put to the applicant another e-mail message, dated August 5, 2014, from Mr. Fragomeni to the applicant. The message reminded the applicant that she had to send Mr. Fragomeni an e-mail message to update him about her progress in filling orders before leaving work for the day in order that he and her coworkers would know what was outstanding. The applicant had not done so. In the message, Mr. Fragomeni also criticized the applicant for not cleaning and vacuuming her workstation, as she had been directed. The applicant acknowledged that she did not send the required message to Mr. Fragomeni by e-mail, but she stated that she may have texted it to him. The applicant was unable to retrieve such a text message. She agreed that it was important for her to update Mr. Fragomeni about her work so that he knew what work remained to be performed. She also stated that if she did not inform the manager, her co-workers would be able to. The applicant stated that she always updated Mr. Fragomeni after this reminder. The applicant stated that she was always neat and organized and that she must have been very busy to leave her workstation in disarray. The applicant stated that Mr. Fragomeni later implemented a cleaning schedule, but it was much the same as under Ms. Cassar.

15Next, the respondent put to the applicant an e-mail message dated August 25, 2014 from Mr. Ongpauco to her. In the message, Mr. Ongpauco reminded the applicant that an updated candidate list must be forwarded to all staff every Monday and asked her to advise if this task had been done, as he did not receive the list. The applicant stated that the message was constructive criticism. She agreed she had not complied with the requirement, but noted that she "did have other things to do". The applicant acknowledged that it was her responsibility to send a candidate list and that she had forgotten to do so. She stated, however, that one of her co-workers could have sent the list.

16The respondent showed the applicant an e-mail exchange between Mr. Ongpauco and Mr. Fragomeni. Mr. Ongpauco directed Mr. Fragomeni to begin to document performance related discussions with the applicant. Mr. Fragomeni acknowledged the direction and noted further issues with the applicant as she had booked only two candidates in an entire day. Mr. Fragomeni also stated that he would make certain changes to the applicant's duties leading up to December 5. The applicant stated that she had not been aware of any major issues at the time and that such issues should have been brought to her attention. She conceded that booking two orders would be low depending on the number of orders placed by clients. She agreed, however, that the respondent would never receive only two orders in a day. The applicant stated that the reference to her departure on December 5, 2014 referred to the commencement of her maternity leave. The applicant agreed that the message did not indicate any issue with her pregnancy, but raised concerns about her performance.

The Respondent’s Evidence

(i) Tracey Cassar

17Tracey Cassar has been an employee of the respondent for nine years. Ms. Cassar was the manager of the Brampton office when the applicant commenced her employment and remained in that role until on or about August 1, 2014, when she assumed a different role. Ms. Cassar's evidence was that during her employment with the respondent she has worked with four employees who went on maternity leave and came back to work. Ms. Cassar testified that shortly after the applicant began work she advised Ms. Cassar that she was taking fertility treatments. Within three months of her start date, the applicant advised Ms. Cassar that she was pregnant and Ms. Cassar congratulated her. Ms. Cassar advised Angela Laurenza in Human Resources and Mr. Ongpauco, the Operations Manager. According to Ms. Cassar, they accepted the information and moved on. Ms. Cassar stated that the applicant was permitted to arrive late or leave early to accommodate pregnancy related medical appointments. The applicant always gave notice of her appointments to minimize disruption.

18Ms. Cassar conducted a performance evaluation of the applicant after five months of employment. The evaluation form has 21 categories in which employees are ranked as Exceeds Expectations, Meets Expectations or Needs improvement. Ms. Cassar ranked the applicant as Needs Improvement in 10 of the 21 categories. One of her key concerns regarding the applicant's performance was a lack of communication with her fellow coordinators, resulting in uncertainty regarding which work had been completed. Another area of concern was that the applicant was not sufficiently proactive in following up with clients and anticipating their needs. According to Ms. Cassar, the applicant was not consistent in following up with placed employees, informing herself about pay rates and ensuring placed employees had the full details about their assignments. Ms. Cassar evidence was also that the applicant was often late by a few minutes. Ms. Cassar's overall assessment was that the applicant lacked a sense of urgency/proactivity and that she often covered for the applicant's shortcomings. In that regard, Ms. Cassar noted that she has a tendency to be controlling and would simply do work to ensure it was done rather than relying on her subordinates. Ms. Cassar and Mr. Ongpauco met with the applicant and went over the review in detail. Ms. Cassar stated that the applicant was receptive to the direction she received.

19In Ms. Cassar's view, the applicant required a lot of improvement to be successful, but Ms. Cassar believed that the applicant would be able to meet expectations with coaching. Ms. Cassar left the Branch Manager role shortly after the assessment and therefore could not say whether the applicant improved her performance.

(ii) Robert Fragomeni

20Robert Fragomeni replaced Ms. Cassar as the Branch Manager of the Brampton office. Under his leadership, the volume of business in that office increased significantly and expectations for employees also increased. Mr. Fragomeni stated that the applicant did not adjust well to the management change and wanted to continue to do things as they had been done under Ms. Cassar. Mr. Fragomeni also described a lack of urgency on the applicant's part, which soon resulted in productivity issues. Orders went unfilled and clients began to complain, including directly to Mr. Laurenza.

21Mr. Fragomeni's evidence was that Mr. Ongpauco directed him to begin to document the applicant's shortcomings, which was reflected in an e-mail message from Mr. Ongpauco to Mr. Fragomeni on August 28, 2014. Mr. Fragomeni stated that he therefore kept notes of incidents regarding the applicant's performance issues. These notes were combined into a single document for the purposes of the Application. The document describes several incidents in which the applicant failed to update Mr. Fragomeni of her progress before leaving work, as required; failed to advise him when client orders were not filled; often failed to send the company database to staff; and, failed to book orders and gave invalid excuses to him or the client. It was also Mr. Fragomeni's perception that the applicant had difficulty with punctuality and spent too much time on breaks.

22Mr. Fragomeni stated that he was not formally advised that the applicant was pregnant, but heard about her pregnancy from others. He stated that he was not prepared to ask the applicant about her pregnancy and expected her to tell him about it. He did know the applicant was going on leave on December 5, 2014.

23Mr. Fragomeni's evidence was that he reported issues affecting clients to Mr. Ongpauco, including the applicant's performance. Mr. Fragomeni did not make the decision to dismiss the applicant, but did state the respondent needed someone who would take direction. Mr. Fragomeni's evidence was that he recommended giving the applicant more time to improve. Mr. Fragomeni was present when Mr. Laurenza made the decision to dismiss the applicant. He stated that Mr. Laurenza took the decision in a meeting involving Mr. Laurenza, Ms. Laurenza, Mr. Ongpauco and himself. Mr. Fragomeni stated that he had a meeting with the applicant and Mr. Ongpauco within a week of her dismissal, but denied that he asked her if she was pregnant.

24In cross-examination, Mr. Fragomeni agreed that the applicant's e-mail to him of August 11, 2014 met the requirement to update him before she left work for the day. He stated, however, that the applicant's performance issues were about more than one day and she did not always provide an update. Mr. Fragomeni also noted that the message indicated that the applicant called only one person in a 3,000 person database. Mr. Fragomeni agreed that he had a conversation with Ms. Pysarenka on or about September 5, 2014 and the issue of the applicant's pregnancy arose. He testified that he said that he believed the applicant was pregnant. Mr. Fragomeni stated that the respondent waited until September 19, 2014 to dismiss her because dismissal is a serious decision and they tried to be optimistic, hoping she would improve. He agreed that the applicant had not been subject to formal performance management.

(iii) Ed Ongpauco

25Mr. Ongpauco stated that he is constantly in touch with the Branch Managers regarding issues involving service and sales, as well as staff issues. Mr. Ongpauco reports to Angela and Robert Laurenza. Mr. Ongpauco stated that his involvement with the applicant began when Mr. Fragomeni advised him that he was having issues with the applicant's productivity and willingness to take direction. Mr. Ongpauco’s evidence was that he directed Mr. Fragomeni to ensure the applicant was aware of his issues and to keep track of further performance concerns.

26Mr. Ongpauco stated that the respondent adopted a more aggressive style of service when Mr. Fragomeni assumed management of the Brampton office, which required employees to be more efficient. Mr. Ongpauco testified that the applicant would say that she understood what was expected of her, but gave no other reaction. In his view, the applicant lacked a sense of urgency.

27Mr. Ongpauco's evidence was that he spoke to the applicant twice about her performance. Mr. Ongpauco described the first discussion as a conversation in which he asked the applicant, as one of the more senior staff members, to help with the new direction in the Brampton office. Mr. Ongpauco was shown a statement he prepared as part of the respondent’s Response to refresh his memory and he was able to recall that this first meeting occurred on or about August 14, 2014. Mr. Ongpauco stated that he did not see any improvement in the applicant's performance; therefore, he and Mr. Fragomeni had a more formal meeting with her. Again with the assistance of his written statement, Mr. Ongpauco was able to recall that this meeting occurred on or about September 3, 2014. According to Mr. Ongpauco, they discussed the applicant's lack of urgency, the need for her to follow directions, the need to fill orders, the need to communicate professionally with her manager and her negativity when communicating with co-workers. Mr. Ongpauco stated he again asked the applicant for her assistance in meeting company goals.

28Mr. Ongpauco acknowledged that he sent an e-mail message to Mr. Fragomeni on August 28, 2014 directing him to document the applicant's performance issues to "build a case if we need to build a case". Mr. Ongpauco stated that the office was starting to fail and he wanted to build a case to speak with her again. Notwithstanding the meetings, Mr. Ongpauco felt that the applicant was not providing adequate service to clients and he was concerned about disruptions in the Brampton office. Consequently, he advised Mr. and Ms. Laurenza of his concerns. Mr. Laurenza asked Mr. Ongpauco for his opinion and he recommended dismissal. Mr. Ongpauco estimated that this discussion occurred about two weeks prior to the termination of the applicant's employment. Ultimately it was Mr. Laurenza who made the decision to dismiss the applicant.

29Mr. Ongpauco's evidence was that he had not been specifically told that the applicant was pregnant, but he was aware of her pregnancy. He was aware that the respondent had plans to find a replacement for the applicant until she returned from maternity leave and he was not concerned about her leave. Mr. Ongpauco denied that the applicant's pregnancy had anything to do with her dismissal.

(iv) Camille Haffizulla

30Camille Haffizulla is a Staffing Coordinator for the respondent and had held that position about one year at the time of the hearing. Ms. Haffizulla prepared a statement supporting the respondent's position that was included in the Response. At the hearing, she confirmed that she prepared statement and adopted it as her evidence. The statement was critical of the applicant, who was responsible for training her. In the statement, Ms. Haffizulla relayed that the applicant was critical of Ms. Cassar and Mr. Fragomeni and made comments to the effect that Mr. Fragomeni was not competent. Ms. Haffizulla also stated that the applicant was rude to work candidates and that the applicant made no attempt to fill orders.

31Ms. Haffizulla's testimony was equally critical of the applicant. She stated that the applicant sometimes gave her incorrect information for job orders (e.g., the job, the pay and which candidate was being sent). Ms. Haffizulla's evidence was that she often did very little while working with the applicant because the applicant directed her not to fill orders. According to Ms. Haffizulla, the applicant advised her not to worry about booking orders because all they had to do was say they tried. Ms. Haffizulla stated that, in any event, the applicant did not have time to place orders because she was busy planning a wedding. Ms. Haffizulla's evidence was that the applicant only showed a sense of urgency when it came to taking breaks. Ms. Haffizulla stated that she raised these issues with both Mr. Fragomeni and Mr. Ongpauco.

32In cross-examination, Ms. Haffizulla stated that she believed management was not aware of the applicant's incompetence when they put her in charge of training Ms. Haffizulla. Ms. Haffizulla acknowledged that the applicant made a follow-up call to an employee, but noted that such calls take about five minutes.

(v) Robert Laurenza

33Pursuant to Rule 1.7 (o) of the Tribunal's Rules of Procedure, I advised the respondent that it would be helpful if Mr. Laurenza testified, as he was identified as the person who made the decision to dismiss the applicant. Accordingly, Mr. Laurenza testified.

34Mr. Laurenza testified that he is the respondent's owner and president. The respondent opened in May 2002 and currently has about 25 staff. Mr. Laurenza stated that 13 children were born to staff in the company's existence and that at least one employee has had three maternity leaves. Mr. Laurenza stated that the respondent has a good record of retaining employees and has dismissed only a few employees over the years. According to Mr. Laurenza, accommodating pregnancies and childcare needs is no issue for the respondent. Mr. Laurenza's evidence was that the applicant's pregnancy had nothing to do with the termination of her employment. Mr. Laurenza stated that there was no advantage in dismissing the applicant before she commenced her leave of absence.

35Mr. Laurenza's evidence was that in or about August or September 2014 Mr. Fragomeni and Mr. Ongpauco advised him that there were issues in the Brampton branch and with the applicant. The key issue was that orders were not being filled. In that regard, Mr. Laurenza stated that two of the respondent's most important clients complained to him directly about orders not being filled, which indicated a problem. Mr. Laurenza therefore directed Mr. Ongpauco to address the issue. Mr. Ongpauco was spending an excessive amount of time at the Brampton office and he relayed to Mr. Laurenza that there were issues with the applicant and that the other staff, such as Ms. Haffizulla, were inexperienced.

36There was no improvement and he met with Mr. Fragomeni and Mr. Ongpauco on the Tuesday or Wednesday of the week the applicant was dismissed. Mr. Laurenza stated that they were frustrated because the applicant showed no improvement in performance despite the coaching and because she was disrespectful to Mr. Fragomeni. Mr. Fragomeni and Mr. Ongpauco asked him for his advice to address the circumstances. Mr. Laurenza testified that he concluded that the applicant was no longer a fit and decided to dismiss her. He therefore spoke to Human Resources to have a dismissal letter drafted and Mr. Ongpauco conducted the dismissal meeting on Friday, September 19, 2014.

37In cross-examination, Mr. Laurenza stated that the biggest concerns regarding the applicant were her lack of cooperation and lack of urgency, which in his view are things that cannot be trained. Consequently, he opted to dismiss the applicant rather than give her more training.

Analysis of decision

38The relevant Code provisions 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(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

39The applicant bears the legal onus of establishing discrimination on a balance of probabilities, i.e., that it is more probable than not that discrimination occurred. See Peel Law Association v. Pieters, 2013 ONCA 396 at paragraph 83 (“Pieters”). In Pieters, the Court of Appeal stated that an applicant has the onus of establishing the following three elements to make out discrimination under the Code:

a. That he or she is a member of a group protected by the Code;

b. That he or she was subjected to adverse treatment; and

c. That the Code ground was a factor in the alleged adverse treatment.

40There is no dispute that the applicant was pregnant at the time of her dismissal or that the respondent was aware that she was pregnant at the time. The applicant, however, is required to do more than establish that her employer knew she was pregnant when she was dismissed. Rather, as noted above, the applicant was required to present evidence that her pregnancy was a factor in the decision to terminate her employment in order to establish a Code violation.

41In my view, the applicant presented no evidence that the respondent had any issue with her pregnancy or any evidence that could form a proper basis for finding a connection between their pregnancy and her dismissal. To the contrary, the evidence clearly establishes that the respondent accepted her pregnancy, made plans to address her departure on maternity leave and expected her to return to work following her leave. The timing of the decision to dismiss came several months after the applicant announced her pregnancy. This fact does not preclude a finding of discrimination, but it distinguishes this case from circumstances in which dismissal follows suspiciously shortly after the disclosure of an employee’s pregnancy. See Huang v. High Life Heating, Air Conditioning & Security Inc., 2014 HRTO 1356.

42In my opinion, while this finding is sufficient to dispose of the Application in the respondent's favour, I also find the respondent presented a credible, non-discriminatory explanation for the decision to dismiss her.

43The consistent evidence of Ms. Cassar, Mr. Fragomeni and Mr. Ongpauco, which was not contradicted, was that the applicant had several performance deficiencies that they brought her attention in the form of the performance appraisal, e-mail messages and discussions with her. The e-mail from Mr. Ongpauco to Mr. Fragomeni on August 28, 2014 indicated that the respondent had concerns about the applicant’s performance shortly after Mr. Fragomeni began managing the Brampton office and were considering further disciplinary action. The consistent evidence was that the applicant made no improvement in her performance and lacked a sense of urgency for the respondent's priorities. Ms. Haffizulla's evidence was that the applicant was highly unproductive. The applicant's testimony became quite defensive and evasive when she was confronted with examples of performance issues and attempts to coach her regarding performance. She tended to euphemistically describe such coaching as "constructive criticism” in a manner that indicated that she did not consider such criticisms to be important. This tendency was particularly stark when the applicant was confronted with the fact that Ms. Cassar rated her as “Needs Improvement” in 10 of the 21 categories in her performance appraisal. The applicant generally attempted to downplay the severity of the performance issues raised with her and on several occasions attempted to deflect responsibility by stating that other employees could have completed her job responsibilities. It was clear that the applicant did not consider the respondent's concerns to be important and she was oblivious to the fact that she was not meeting the respondent’s expectations, despite the evidence to the contrary.

44In these circumstances, I find the respondent dismissed the applicant because of her performance and that her pregnancy was not a factor in the decision to dismiss her.

45The Application is dismissed.