HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tiffany Wignall
Applicant
-and-
Music Legends Ltd.
Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: Wignall v. Music Legends Ltd.
APPEARANCES
Tiffany Wignall, Applicant
Civita Gauley, Counsel
Music Legends Ltd., Respondent
Peter Wadsworth, Representative
Introduction
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, the applicant alleges that her employment was terminated for reasons relating to her pregnancy. The respondent employer denies discrimination and alleges that she was terminated for cause.
2The Application was heard over a number of dates in St. Catharines and Toronto, Ontario and final submissions were made in writing.
3During the course of the hearing, on behalf of the applicant, I heard evidence from Grace Marrone, the mother of a former co-worker of the applicant, Cindy Oravken and Miranda Davis, former co-workers, Michael Michael and Patricia Wignall, the applicant’s husband and mother respectively and the applicant herself.
4I also heard the evidence of Harish Menen and Courtney Downes, both of whom had been employed as supervisors of the applicant during the material time, George Mendes, who was the applicant’s manager, Matt Campbell, head of security for the respondent employer and Peter Wadsworth, vice president of Human Resources for the respondent.
5For the reasons that follow, this Application is dismissed.
the law
6The relevant sections of the Code are as follows:
(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.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(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.
the evidence
7The applicant was employed on and off by the respondent business as a member of their wait staff (waitress and bartender) between March, 2010 and June 22, 2013. While there was some disagreement between the parties as to whether the applicant had been continuously employed during that time, I make no finding on this issue as it is irrelevant to the matter before me.
8The applicant found out she was pregnant sometime in March 2013 and she told some colleagues, including the assistant general manager, David Burns, about her pregnancy around the end of May, 2013. She also asked for pregnancy related accommodations at that time; specifically she requested that she not be scheduled to work in the patio area as that involved walking up and down two flights of stairs during the course of her pregnancy and told them she would not be able to volunteer to stay late during the pregnancy.
9The applicant was terminated on June 22, 2013. The applicant asserts that following the disclosure of her pregnancy and her request for accommodation, she was treated differently and that an excuse was fabricated in order to terminate her employment because of her pregnancy.
10The respondent, for its part, asserts that the sole reason for the termination was that, following an investigation by security, the employer determined that she had, in effect, stolen from the company by telling a new supervisor that she was entitled to a discount for a meal for her husband and asking him to authorize the transaction, contrary to company policy.
11The undisputed evidence is that, in general, certain types of food excepted, employees receive a 50 percent discount on food they eat while working and that supervisors must key in that authorization. Also undisputed is the ability of supervisors to offer discounts to customers. What is in dispute is whether family members of employees are entitled to an automatic 50 percent discount on their meals, as alleged by the applicant, or whether that discount is within the sole purview and discretion of the general manager, the position advanced by the respondent.
12I heard a great deal of evidence from the applicant’s witnesses regarding occasions when discounts were given to them or to their family members when they dined at establishments run by the respondent. I will not devote a great deal of time in reproducing that evidence in any detail.
13The applicant’s evidence on this point, which I largely accept, is that she received a discount herself when her mother, Patricia Wignall, ate at the restaurant on one occasion and that she had been present when family members of other employees, including Grace Marrone, had been given a discount for a meal by one of the managers employed by the respondent. This account is echoed by Grace Marrone and Patricia Wignall and not contested by the evidence of the respondent witnesses.
14The respondent agrees that the occasions that are referenced by Grace Marrone and Patricia Wignall involved authorizations for the discounts provided by the general manager.
15The evidence that is in dispute is that the applicant and her husband always sought and received discounts for his meals when he dined at the respondent business. The respondent’s evidence is that the general manager, George Mendes, did not authorize any discount transactions involving the applicant’s husband.
16George Mendes and the remainder of the witnesses put forward by the respondent gave evidence that any discounts given to family members were within the sole purview and discretion of the general manager and not available to employees simply for the asking, as alleged by the applicant. The respondent witnesses all deny ever authorizing such discounts other than pursuant to the instructions of George Mendes.
17On June 14, 2013, the applicant’s husband came to her workplace and, while waiting for her to finish work, had a meal. The applicant’s evidence is that she asked both supervisors on duty for a discount for her husband’s meal and Harish Menon, the new supervisor, authorized the discount.
18Matt Campbell, employed in the security department, gave evidence that he witnessed what he viewed as an internal theft when reviewing the video of that evening’s events. He witnessed an employee discount being given for a meal eaten by the applicant’s husband, not herself.
19He relayed that information to the applicant’s managers and was not present at the interview that took place with her. He was not aware that the applicant was pregnant or that she had requested accommodation. He was not involved in the subsequent discipline that was meted out to the applicant.
20There is an issue as to whether it was George Mendes or Peter Wadsworth who ultimately made the decision to terminate the applicant. In the response filed by the respondent, Peter Wadsworth alleges he made the decision and during the course of the hearing, George Mendes indicated he made the decision.
21I accept the evidence of the latter. It is clear to me that the person who made the decision was George Mendes. In my view, Mr. Wadsworth’s involvement was peripheral and merely involved providing human resources support services to the general manager.
decision
22In assessing credibility, I am guided by the decision of the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence in the case, and assess the impact of any inconsistencies on questions of credibility and reliability pertaining to the core issue in the case.
23The applicant alleges that she told representatives of the respondent employer that she was 17 weeks pregnant and asked that during the summer months she not be scheduled to work in the patio, which would have involved climbing stairs, for reasons relating to her pregnancy. I accept her evidence on this point and find that, at a minimum, Mr. Burns and Mr. Mendes were aware of her pregnancy and her need for the accommodation referenced above.
24Both the applicant and her witnesses gave evidence that she and other employees have made use of the so called “family discount” on many occasions and that the employer’s position that no such discount exists should not be believed. She argues that the respondent fabricated a reason to terminate her employment because she had told them about her pregnancy and sought accommodation.
25Both parties made numerous arguments about why the evidence of their witnesses should be preferred on the question of whether a family discount existed and the mechanics of its application.
26They also made arguments about whether the evidence of one of the witnesses, Miranda Davis, ought to be believed as she had allegedly been coached into providing evidence that was convenient to the respondent and consistent with the narrative it was advancing.
27I do not find it necessary for the purposes of this decision to make findings of credibility with respect to each individual witness that testified about the “family discount” policy.
28While I am sympathetic to the applicant’s plight and can accept that she may have had a genuine and good faith belief that such a discount system existed and was available to employees, something the respondent disputes, my task is not to decide that question.
29The issue before me is not whether the decision made by the respondent is based on a workplace policy that was consistently applied or whether it was a defensible or fair decision, but, rather, whether there is sufficient evidence before me to conclude that the applicant’s pregnancy and request for accommodation played any role in the respondent’s decision to terminate her employment or whether an inference can be drawn to that effect.
30Given the evidence I have heard, it is impossible for me to conclude that the applicant’s pregnancy played a part in the decision to terminate her or that an inference can be drawn that it did.
31I have no difficulty accepting that the policy about discounts offered to employees for family members was not clear to everyone that worked at the respondent business, including the applicant, and that it was inconsistently applied. I accept the applicant’s evidence that she had received and had witnessed others receiving some type of discount during the time she was employed by the respondent. I also accept her position that she did not attempt to hide the fact that she was asking for a discount for her husband’s meal and that she asked one of her managers to authorize it. If she had intended to commit theft, it is highly unlikely that she would have involved others in the transaction.
32I also accept, however, that the respondent viewed the transaction as one in which was, in its view, contrary to policy, that it had incurred a loss and that one instance of what it viewed as theft by an employee was grounds for termination of employment.
33In order for me to be persuaded that the protected Code ground was a reason for termination, I would have to accept that a number of people outside of her immediate work environment, such as the head of security, Matt Campbell, and the vice president of human resources, Peter Wadsworth, knew of the applicant’s pregnancy and her request for accommodation and that they colluded with her manager, George Mendes, to terminate her for reasons connected, in part, to her pregnancy.
34The evidence does not support such a conclusion.
35The inquiry into the discount sought by the applicant for her husband’s meal was initiated by the head of security, Matt Campbell. There is no evidence before me to suggest that he had any knowledge that the applicant was pregnant or that she had sought accommodation in respect of her schedule.
36In addition, there is no evidence before me to suggest that Peter Wadsworth was aware of her pregnancy or any requests made by her with respect to accommodation in scheduling.
37Finally, I am persuaded by the evidence provided by George Mendes that there was no concern with respect to the applicant’s request to not be assigned any further shifts in the upstairs patio area. His evidence, borne out by the applicant’s own account, is that all new schedules prepared after her request for accommodation restricted her work location to areas other than the upstairs patio.
38I further accept his evidence that pregnancy-related accommodation requests and maternity leaves are not uncommon occurrences in the industry, that the respondent would have no reason to single out one female pregnant employee for termination on fabricated grounds, and that her pregnancy played no role in the decision.
39His evidence, which I accept, is that while employees were entitled to certain types of discounts for certain types of food consumed by them during their shifts, the matter of providing discounts of the type referred to by the applicant as a “family discount” policy was one within his sole purview and discretion. He is equivocal in his evidence that he did not authorize any of the discounts the applicant says she obtained for meals that her husband regularly consumed.
40He testified that he would have to approve such a discount and it was his decision as to what level of discount he might authorize. He confirmed that the meals of Grace Marrone and Patricia Wignall had been discounted by his authorization because prior arrangements had been made in those instances.
41However, he was clear that it was his understanding that it was not a discount available to an employee simply for the asking and he confirmed he had not been asked to authorize this particular discount. It was on this basis that he viewed the applicant’s actions on the evening of June 14, 2013, as an act of theft and moved to terminate her employment.
42The applicant argued that the evidence at the hearing is inconsistent with the narrative contained in the Response filed by the respondent. In the response, the respondent alleged that the termination decision was made by Human Resources, specifically Peter Wadsworth, and that there was no discrimination as he was unaware that the applicant was pregnant at the time of the decision.
43I agree that the evidence establishes that the decision to terminate was made by George Mendes, who I have also found knew of the applicant’s pregnancy at the material time. I accept his evidence that the termination was because of what he viewed as an internal theft and that one instance of theft was sufficient to merit termination of employment. I find that the decision was merely confirmed by Peter Wadsworth.
44My task is to determine whether, in light of that inconsistency, an inference can be drawn that the termination was based in whole or in part by considerations relating to the applicant’s pregnancy.
45While I agree with the applicant that this evidence is inconsistent with the narrative advanced by the respondent in the Response filed at the outset, that inconsistency is not sufficient for me to draw an inference that the respondent witnesses colluded to fabricate a reason for termination and that the Code-related reason is a reason for the termination. I am not persuaded that there is a connection established by the evidence or the inconsistency between the two positions taken, either directly or by inference.
46Although, as the applicant argues, the decision to terminate her may well have been based on an inconsistent application of an unclear policy relating to employee discounts, there is no evidence before me, nor can I draw an inference from that evidence, to suggest that the decision was tainted by considerations of the Code grounds raised by the applicant.
47Accordingly, the Application is dismissed.
Dated at Toronto, this 28th day of October, 2015.
“Signed by”
Jay Sengupta
Vice-chair