Angeles Toledo v. Mexitaco, 2015 HRTO 1464

Human Rights Tribunal of Ontario

B E T W E E N:

Nelly Angeles Toledo Applicant

-and-

Mexitaco and Gabriela Olguin de Copto Respondents

DECISION

Adjudicator: Jo-Anne Pickel Date: November 2, 2015 Citation: 2015 HRTO 1464 Indexed as: Angeles Toledo v. Mexitaco

WRITTEN SUBMISSIONS

Nelly Angeles Toledo, Applicant Self-represented

Mexitaco and Gabriela Olguin de Copto, Respondents Dean Adema, Counsel

1The applicant alleged that the respondents discriminated against her because of her sex contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, she alleged that the respondents discriminated against her by denying her request for reduced hours due to her pregnancy and terminating her employment. The respondents denied that they discriminated against the applicant and also denied terminating her employment.

2At the hearing of the Application, I heard testimony from the applicant; the personal respondent, Gabriela Olguin de Copto; the personal respondent’s spouse, Alejandro Copto Garcia; and a former co-worker of the applicant, Marlene Elizabeth Sanchez. The applicant and Ms. Sanchez provided their testimony in Spanish and it was interpreted by a certified court interpreter. The personal respondent provided most of her testimony in Spanish and it also was interpreted by the court interpreter. The respondent’s husband provided his testimony in English.

3The outcome of this case largely turns on my findings in relation to two key conversations between the applicant and the personal respondent, one on May 22, 2014 and the other on May 29, 2014. The applicant and the personal respondent gave significantly divergent testimony regarding these two conversations. Therefore, the outcome of this case turns on my findings of credibility regarding which account of the conversation is more credible in light of the evidence as a whole.

4For the reasons that follow I find that the applicant has met her onus of making out a breach of the Code in this case. As explained below, I do not believe that the respondents intentionally breached the Code. However, it is well established in the case law that discrimination does not need to be intentional. In my view, the breaches of the Code in this case occurred due to the respondents’ lack of knowledge regarding the full extent of their obligations under the Code.

Factual Background

First Few Months of Applicant’s Employment

5The applicant was an employee of the organizational respondent, Mexitaco. Mexitaco is a restaurant operated as a sole proprietorship by the personal respondent.

6The applicant was initially employed as a dishwasher in October 2013 and later moved into a position that involved serving and food preparation responsibilities. Although her schedule varied, the applicant primarily worked six days per week -- from 5 PM-10 PM on week days and slightly longer hours on weekends. Her usual day off near the end of her employment was Mondays.

First Key Conversation: May 22, 2015

7The applicant discovered that she was pregnant towards the end of April 2014. She informed the personal respondent that she was pregnant on May 22, 2014. The applicant and the personal respondent gave divergent testimony about their conversation on that date.

8The applicant gave the following account of the conversation. She approached the personal respondent in the restaurant and told her she was pregnant. She told the personal respondent that she could not work “in the same way” as she had before due to her pregnancy. She asked if the personal respondent could “accommodate [her] hours”. The applicant testified as follows (interpreted from Spanish):

she told me that if I wasn’t able to work the same way I could take my two weeks and she would find someone else that I could train and that then I would stop working, that I could quit. I didn’t have another option. I couldn’t work same way I was working before.

9At this juncture, it should be noted that during the applicant’s cross-examination, the respondents’ counsel asked the applicant about this part of her testimony. The applicant replied “she [the personal respondent] said these were the last two weeks and after that I could leave”. The respondents’ counsel then asked the applicant why she had used the word “quit” in her testimony-in-chief. The applicant replied that it meant the same as “to leave”.

10The interpreter clarified that, in her testimony–in-chief, the applicant used the Spanish verb “dejar” which, translated literally, means “to leave”. The interpreter said that an acceptable translation for “dejar” would either be to leave one’s employment or to quit. The interpreter interpreted the applicant as saying that the personal respondent told her she could stop working and “quit” in light of the context in which the applicant made the statement. The interpreter noted that there was some ambiguity to the term “dejar” and the interpretation would depend on the context in which the verb was used. The interpreter noted that the applicant did not use other words to describe the situation such as “despedir” which would translate as “to fire” or “dismiss”. She also did not use “renunciar” which would translate as to “resign” or “to quit”.

11When asked for clarification of the issue in cross-examination, the applicant said she saw no difference between the terms leaving and quitting. She said that, in either case, the personal respondent did not give her any option but to stop working. When I asked the applicant what she meant when she said the personal respondent told her she could “take her two weeks”, she said the personal respondent told her she could work two weeks to train another person and then she would stop working.

12The personal respondent provided the following very different account of her May 22, 2014 conversation with the applicant. According to personal respondent, when the applicant told her she was pregnant, she requested that her schedule be changed to work only Fridays and Mondays. The personal respondent testified that she asked the applicant whether she could work her regular schedule for two weeks and that after that she could work only Fridays and Mondays. According to the personal respondent, the applicant agreed to this arrangement. The applicant was the only person who knew how to serve plates and to use the grill and therefore a new person would need to be trained. She had just hired a new employee a short time before the applicant announced her pregnancy and she wanted the applicant to train the new employee.

13The applicant adamantly denied that she asked the personal respondent to work Fridays and Mondays.

14The respondents’ counsel asked the personal respondent whether the applicant had provided her with any specific requests for pregnancy-related accommodations. The personal respondent replied that the applicant had not. Her counsel then raised a number of possible accommodations that one might ask for, such as lifting restrictions, not working more than a few days in a row, etc. The personal respondent replied that the applicant only said she could not do as many things as before but she did not specify which. When her counsel asked her whether the applicant said she could not work for more than a certain number of days in a row, the personal respondent replied that the applicant had told her that she could not work as much as before and that she wanted to work Fridays and Mondays. When her counsel asked the personal respondent whether the applicant had provided her with any medical notes recommending accommodations for the applicant’s pregnancy, she replied that she had not. When I followed up to ask whether she had ever requested medical support for the applicant’s request to work fewer hours she said she had not.

15Overall, I find the personal respondent’s testimony that the applicant never requested any accommodations for her pregnancy puzzling in light of the fact that she also testified that the applicant had requested that she be permitted to work reduced hours. Moreover, the personal respondent also testified that the applicant had asked to work Fridays and Mondays and that she had agreed to this request. This testimony is inconsistent with the personal respondent’s testimony that the applicant had not requested any accommodations for her pregnancy. I discuss this inconsistency further in the Analysis section below.

Applicant’s Conversations with Co-Worker

16The applicant also had two brief discussions with a co-worker, Ms. Sanchez, about her pregnancy around this time. Ms. Sanchez and the applicant gave different accounts of these conversations.

17The applicant gave the following account of her conversations with Ms. Sanchez. She testified that she spoke to Ms. Sanchez about being pregnant and that Ms. Sanchez advised her to keep working her regular hours so she would have enough insurable hours to qualify for maternity leave under the Employment Insurance Act (“EI Act”). She was not close enough to Ms. Sanchez to talk to her about the conversations she had with the personal respondent about her work schedule. She told Ms. Sanchez that she could not work the same way as before. The applicant denied telling Ms. Sanchez that she was planning to stop working in a week.

18Ms. Sanchez gave substantially the same account of their first conversation which occurred approximately two weeks before the applicant’s last day of work. According to Ms. Sanchez, the applicant told her she was pregnant. Ms. Sanchez told the applicant she should work as may hours as she could so she would be entitled to maternity benefits under the EI Act. Ms. Sanchez testified that she and the applicant had another conversation a week later, during the applicant’s last week of work. In this conversation, the applicant said she was not going to continue working because she was feeling ill. The applicant told Ms. Sanchez that it would be her last week of work. When I asked Ms. Sanchez whether the applicant had mentioned anything about working reduced or modified hours, she said she had not.

Period of Time Between May 22-29, 2014

19May 22, 2014 was a Thursday. The applicant worked the following few days. Monday (May 26th) was her day off.

20The applicant testified that two or three days after she told the personal respondent she was pregnant she went to Service Canada to ask them about her case. The representative she spoke to advised her to send a letter to the personal respondent to request that her schedule be accommodated. The applicant never did send the letter because of a conversation she had with the personal respondent a few days later, on May 29, 2014 (see below).

21The applicant testified that she saw her doctor on Tuesday May 27, 2014 because she was vomiting, had shortness of breath and she was feeling nauseous due to the pregnancy. Her doctor recommended that she take three days off: May 27-29, 2014. When she followed up with her doctor on May 29, 2014, her doctor told her to go to the hospital emergency ward as her symptoms persisted.

22The parties gave divergent evidence about when the applicant informed the personal respondent that she required time off. The applicant testified that she called the restaurant on May 27, 2014 and told the personal respondent’s spouse that her doctor had recommended that she take the three following days off to rest. She testified that the personal respondent’s spouse told her everything was fine and not to worry.

23The personal respondent testified that, one day at the end of the two week period she and the applicant had agreed to, the applicant called in around 2 or 3 PM to say that she could not come into work because she was feeling ill. The personal respondent stated that she did not remember if it was a Tuesday or Thursday. She testified that this caused her difficulties because the applicant’s shift was supposed to start at 6 PM. There were only going to be two people in kitchen – the applicant and the new person she was training – and the personal respondent was upstairs serving people. The personal respondent had to both serve customers and also help the new employee prepare plates and then also help to clean up at the end of the night. When asked whether the applicant called on May 27th or May 28th, the personal respondent testified that she thought it was May 28th but then also said that the applicant called on a Thursday.

24I note that the Thursday of that week was May 29th and the period of May 27-29th was not the end of the two week period following the day on which the applicant announced her pregnancy (May 22nd). Therefore, the personal respondent’s recollections of the general time frame and precise date on which the applicant informed her that she needed to be absent form work does not appear reliable. In any event, I do not find that the precise date on which the applicant called the respondents to inform them that she needed to be absent is relevant to the issues in this case. While the respondents placed a fair amount of emphasis on this point, I fail to see the relevance of whether the applicant provided them with late notice of her absence or not since at no time have the respondents taken the position that they terminated the applicant’s employment due to a failure to provide timely notice of her absences. On the contrary, the respondents’ position in this proceeding has consistently been that they never terminated the applicant’s employment at all. If the respondents had taken the position that they terminated the applicant for failing to provide timely notice of her need to take time off, then the timing of when she called them would be highly relevant. Given the respondents’ position that they never terminated the applicant’s employment, I fail to see the relevance of whether she called the respondents on May 27th or May 28th.

25While I do not find the date on which the applicant informed the respondents of her need to take time off to be relevant, I do find it relevant that the respondent felt more than a little put out by the applicant’s late notice to them of her need to take time off. The personal respondent made clear that she experienced a good deal of inconvenience from the applicant’s various requests to take time off, even before she announced her pregnancy. The personal respondent testified that just one month after the applicant started work, she requested a month off to travel back to Peru. In addition, the personal respondent testified that the applicant had requested time off to spend time with her family around Easter. It was clear from the Response as well as the personal respondent’s testimony that the applicant’s frequent requests for time off, often on short notice, caused considerable inconvenience for the respondents. I will return to the relevance of this below.

Second Key Conversation: May 29, 2014

26The personal respondent called the applicant on her cell phone while she was in the hospital on May 29, 2014. The personal respondent was not aware that the applicant was in the hospital and the applicant did not tell her she was at the hospital.

27As with the other key conversation between the applicant and the personal respondent on May 22, 2014, the two of them gave divergent evidence regarding their conversation on May 29, 2014.

28According to the applicant, the personal respondent told her not to come back to work and just to pick up her pay cheque on Monday, June 2nd. The applicant said she was not feeling well and she was in the emergency room so she simply agreed and it was the end of the conversation.

29The personal respondent gave the following, very different, account of the conversation at the hearing. She testified that she called the applicant around 7 or 8 o’clock in the evening. She asked the applicant how she was feeling and the applicant said she was not feeling well. According to the personal respondent she told the applicant “ok don’t worry” and told her to pick up her cheque on Monday because it was a pay day that Friday. When her counsel asked the personal respondent whether she expected the applicant to come back to work, the personal respondent replied that she expected the applicant to come into work on the Friday of the following week and the Monday after that. The personal respondent testified that she told the applicant “come and pick up your cheque Monday and we’ll see you Friday”.

30I note that the account provided in the Response differed in significant respects from the personal respondent’s testimony. In the Response, the respondents stated that the personal respondent told the applicant on May 29, 2015 that it was difficult to continually scramble to fill her shifts at the last minute. The Response stated that the personal respondent told the applicant that she could take as much time off to deal with her pregnancy/health issues and that it was not good business practice to keep her on the schedule if she was too ill to work. Although the respondents denied terminating the applicant’s employment, there is no suggestion in the Response that the personal respondent expected the applicant to come into work on the following Friday or that she ended the May 29, 2015 call by telling the applicant that she would see her on the following Friday.

31When I asked the personal respondent about the discrepancy between the account of the May 29, 2015 conversation in the Response and her testimony at the hearing, she replied that the applicant had missed two days of work and that was why she told her she would see her on Friday. She did not explain the discrepancy between the two accounts.

32I asked the personal respondent what her reaction was when the applicant did not show up for work on the following Friday, if it was true that she expected the applicant to work that day. The personal respondent said that she was not surprised. I asked her whether she followed up with the applicant to find out why she was not there, if she did indeed expect her to be there, and she said she did not.

Aftermath of May 29, 2014 Conversation

33May 29, 2014 was a Thursday. The applicant went to the restaurant to pick up her pay cheque on Monday June 2, 2014.

34Based on the pay stubs entered into evidence at the hearing, it is apparent that employees are paid on a bi-weekly basis on the Friday following each bi-weekly pay period. For example, the applicant received a cheque dated May 16, 2014 for the pay period extending from Saturday April 26, 2014 to Friday May 9, 2014.

35The cheque the applicant picked up on Monday June 2, 2014 was a cheque issued Friday May 30, 2014 for the pay period extending from May 17-23, 2014.

36The applicant testified that, when she picked up her cheque from the personal respondent’s spouse on June 2, 2014, he did not ask her whether she was coming back to work, he just gave her the cheque. The applicant testified that the personal respondent’s husband told her that she had to come back in two weeks to pick up another cheque because the accountant could not put all of her pay on one cheque.

37The applicant testified that, two weeks later, either she or her husband picked up the second cheque which was dated June 13, 2014 and covered the period from May 24-26, 2014.

Parties’ Submissions

38In her Application, the applicant alleged that the respondents violated the Code by refusing to accommodate her request to work reduced hours and by terminating her employment on May 29, 2015.

39In his closing submissions, the respondents’ counsel took the position that the applicant never requested any accommodations. He also submitted that the respondents never terminated the applicant’s employment but instead she decided not to come back after May 29, 2015.

APPLICABLE LAW

40Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including sex. 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: s. 10(2) of the Code.

41The applicant bears the legal onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination was a factor in the respondent’s actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. The caselaw is clear that discrimination need only be one of the factors involved for there to be a violation of the Code. In addition, it is unnecessary to prove that there was an intention to discriminate to support a finding that the Code has been violated. See Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 40 and Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 at para. 96 (Div. Ct.).

42Most cases before the Tribunal turn on circumstantial evidence, as direct evidence of discrimination is rarely available. Simply put, individuals rarely announce an intention to discriminate and therefore, in most cases, the Tribunal must examine the evidence closely to determine whether an applicant has met his or her legal onus of showing that an inference of discrimination is more probable from the evidence than the explanations offered by the respondent. See Shaw v. Phipps, 2010 ONSC 3884 at para. 77. Ultimately, on the facts of this case, the Tribunal must weigh all of the evidence to determine whether an inference of discrimination is more probable than the respondents’ claim that the applicant never requested accommodations and that they never terminated her employment.

Credibility assessment

43As noted above, this case turns on findings of credibility in relation to testimony I heard regarding the two key conversations between the applicant and the personal respondent. There is simply no way to reconcile their two accounts of these conversations. In assessing the credibility and reliability of their testimony, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354. In particular, when making credibility findings I have sought to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.

44I have also considered other recognized factors for assessing credibility including the witness’ motives, the witness’ relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

45The respondents’ counsel urged me to find the applicant’s testimony as a whole lacked any credibility. In particular, he argued that the fact that she resisted answering a question about her reasons for traveling back to Peru at the start of her employment showed a lack of candour that undermined her credibility with respect to the rest of her evidence. I disagree. As I ruled at the hearing, the reasons why the applicant needed to travel to Peru had nothing whatsoever to do with the issues in this case. If the respondents were taking the position that they terminated the applicant’s employment due to a pattern of unsupported absences, then I would have found the question about her reason for returning to Peru relevant. However, that was not the respondents’ position. Their position was in fact that they never terminated the applicant’s employment. In light of this position, I ruled that the question was irrelevant. I do not accept that the applicant’s refusal to answer an irrelevant question undermines the credibility of the rest of her testimony. In general, I found that the applicant provided a consistent account of the relevant events and therefore I found her testimony generally credible.

46Meanwhile, I found certain key portions of the personal respondent’s testimony to lack consistency and also to lack credibility in light of the content of the Response and the rest of the evidence taken as a whole. I explain my credibility findings further below.

Analysis and Findings

47In this case, it is clear that the applicant was covered by the protected ground of sex under the Code due to her pregnancy.

48Two issues must be addressed in determining whether the applicant was discriminated against due to her pregnancy: (1) did the respondents discriminate against the applicant by failing to provide her appropriate accommodations for her pregnancy? and (2) was the applicant’s pregnancy a factor in the termination of her employment?

Did the respondents discriminate against the applicant by failing to provide accommodations for her pregnancy?

49The determination of this issue turns on the conversation between the applicant and the respondent on May 22, 2013 when the applicant informed the personal respondent of her pregnancy.

Did the applicant make a request for accommodation?

50In an ideal employment world, both parties would be clearly apprised of their legal rights and obligations relating to discrimination and the duty to accommodate under the Code. An employee would understand that he or she has a right to request accommodations, and the employer would understand its responsibilities under the Code. The employee would make a formal request “for accommodation” and this would start a cooperative process by which both parties would explore whether the employer was in a position to accommodate the employee short of undue hardship.

51However, in most cases, employees are not aware of their specific rights under the Code. It is not uncommon for a situation to be complicated by unclear communication on the part of the employee and by an employer’s limited understanding of the extent of its responsibilities under the Code. In my view, the evidence establishes that all of these complications were at play in this situation.

52The applicant in this case testified that she could no longer continue working as she had in the past due to her pregnancy. The applicant’s inability to continue working as she had in the past was not seriously challenged by the respondents. What was challenged by the respondent was the applicant’s testimony that she requested accommodations from the respondents for her pregnancy. In her testimony–in-chief, the personal respondent testified that the applicant never requested any accommodations for her pregnancy. I find this testimony difficult to understand in light of the fact that the personal respondent also testified that the applicant had requested that she be permitted to work reduced hours. Moreover, the personal respondent also testified that the applicant had asked to work Fridays and Mondays and that she had agreed to this request. This testimony is inconsistent with the personal respondent’s testimony that the applicant had not requested any accommodations for her pregnancy.

53Likewise, in his closing submissions, the respondents’ counsel very strongly argued that the applicant never requested any accommodations for her pregnancy. When I pointed out that this submission was inconsistent with the fact that his own client had testified that the applicant had asked for reduced hours he argued that I was not permitted to hold the personal respondent’s testimony against her. I must admit I find this submission puzzling. It seems to be a suggestion that I should disregard testimony given under oath in this proceeding by the respondent counsel’s own witness. In my experience, counsel will frequently urge the Tribunal to disregard the testimony of another party’s witness on the basis that it lacks credibility. It is exceedingly rare for a counsel to ask the Tribunal to disregard testimony from his or her own witness.

54Contrary to the submissions from the respondents’ counsel, I find it is my obligation to examine all of the testimony (including his client’s evidence) in order to determine which is more credible and what is likely to have occurred in this case. This task of assessing credibility is a difficult one, especially when witnesses give very different and, frankly, irreconcilable accounts of the relevant events, as was the case here.

55Having considered the testimony given by the applicant and the personal respondent, I find that the applicant likely did tell the respondent that she could not continue to work the same way as before. I doubt that she used the word “accommodate” in reference to her hours since I find it unlikely that the applicant knew this specific legal term at the time of the events in question. However, I do accept as credible that the applicant asked that she be permitted to work fewer hours due to her pregnancy. The applicant’s testimony that she asked for reduced hours was consistent with the personal respondent’s testimony on this point. Therefore, I find as a fact that the applicant did in fact ask for a reduction of her hours due to her pregnancy.

56Given the respondents’ position at the hearing, it is very possible that the personal respondent did not understand this request for a reduction in hours to be a request for “accommodation”. However, a request for reduced or modified hours is in fact a request for accommodation. It is the kind of accommodation request that is frequently made by pregnant employees or employees with disabilities. It is also likely that the personal respondent did not consider the applicant to have made a request for accommodation because it was not presented to her formally in writing with a doctor’s note. Instead, I find it likely that the request was raised in a much less formal manner and, for this reason, the personal respondent did not see it as a request for accommodation.

57I wish to add that I might have been persuaded that the applicant’s request for accommodation was not sufficiently clear to communicate her desire to work reduced hours as a form of accommodation. However, in light of the personal respondent’s testimony that the applicant had requested reduced hours, I find that, despite any lack of clarity, the personal respondent did understand the applicant to be requesting a reduction of her hours. In these circumstances, I find that the applicant did make a request for accommodation in the form of reduced hours.

Did the respondents fail to provide reasonable accommodations for the applicant’s pregnancy?

58The applicant and the personal respondent gave divergent testimony on the issue of whether the respondent provided her with reasonable accommodations for her pregnancy. As noted above, the applicant testified that the personal respondent told her on May 22, 2014 that, if she could not continue working as before, she could “take her two weeks” and the personal respondent would find someone else that the applicant could train. The personal respondent testified that the applicant agreed to work her regular hours for two more weeks following which she would work only Fridays and Mondays.

59Although, at various points in the hearing, the respondents alluded to the fact that the applicant quit her employment when she informed the respondents of her pregnancy, this position is inconsistent with the personal respondent’s testimony that she and the applicant agreed that the applicant would continue working Fridays and Mondays after an initial two week period. Overall, I find the inconsistency in the personal respondent’s position on this issue undermined her credibility. As between the applicant’s account on this specific point and the one offered by the personal respondent, I prefer the applicant’s account. That is, I do not find it credible that the parties agreed that the applicant would be permitted to work reduced hours after a two weeks period.

60Due to the inconsistencies in the personal respondent’s position on whether the applicant made a request for accommodation, I find that it likely that the personal respondent did not understand the applicant’s request for a reduction of hours as a request for accommodation. Therefore, I find that the personal respondent likely did tell the applicant that she would be looking for another employee to take her place if she could not work her regular hours. This finding is consistent, or at least not inconsistent, with Ms. Sanchez’s evidence, which I found credible, that the applicant told her she was not going to continue working because she was feeling ill. Such an assertion is consistent with the finding that the applicant was intending to work just one more week as her request for reduced hours was denied by the personal respondent.

61Based on the above, I find it more likely than not that the respondents refused to allow the applicant to work reduced hours. In the absence of any evidence that such reduced hours would cause an undue hardship, I find that the respondents breached the Code when they failed to provide reasonable accommodations for the applicant’s pregnancy.

Was the applicant’s pregnancy a factor in her termination?

62As with the accommodation issue, the applicant and the personal respondent gave divergent testimony on the issue of whether the applicant was terminated and, if so, whether the applicant’s pregnancy was a factor in her termination.

63The determination of these issues turns in large measure on the conversation between the applicant and the personal respondent on May 29, 2014 and the actions each took after this conversation.

64As noted above, the applicant testified that the personal respondent told her not to come back to work and just to pick up her pay cheque on Monday June 2nd. The personal respondent testified that she never terminated the applicant’s employment and expected her to come in to work on the Friday of that week. As between the two accounts, I find the applicant’s account of this conversation more credible. It is important to remember the context within which the May 29, 2014 conversation occurred. The applicant had notified the respondent that she could not work her shift because she was feeling ill. The exact timing of her notice was disputed but it was clear from the testimony at the hearing that the applicant either gave the respondents very short notice or late notice. It was absolutely clear from the personal respondent’s Response and from her testimony at the hearing that she felt significantly put out by the applicant’s short or late notice. Moreover, from her testimony, it was fairly clear that the personal respondent saw this latest absence by the applicant to form part of a pattern of questionable absences stretching back to the applicant’s one month trip to Peru shortly after she became employed and her request for time off around Easter.

65I do not find it credible that, in telling the applicant to come pick up her pay cheque on the Monday, the personal respondent was not intending to terminate the applicant’s employment. I do not find it credible that the personal respondent told the applicant that she would see her for her shift on the following Friday or that she expected the applicant to come in on the following Friday. First of all, as of May 29th, the applicant had only worked one week of the two week period she was supposed to work following the conversation she had with the personal respondent on May 22nd. Therefore, if the personal responded truly did not terminate the applicant’s employment and expected her to come into work for her next shift, that next shift would have been on the Tuesday of the following week. It would not have been on the Friday. I also do not find it credible that, having been so significantly inconvenienced by the applicant’s insufficient notice of her absence, that the personal respondent would simply say “see you Friday” as she claimed. Finally, this testimony by the personal respondent was inconsistent with the Response in which the respondents stated that the personal respondent told the applicant that it was not good business practice to keep her on the schedule if she was too ill to work. The personal respondent did not explain this discrepancy when asked about it at the hearing. For all of these reasons, I find the applicant’s account of the May 29th conversation more credible than the one offered by the personal respondent. I find it likely that the personal respondent did tell the applicant that she should not come back to work. It is also possible that she said, as stated in the Response, that she was taking the applicant off the schedule because she was ill. Objectively speaking, I find that these circumstances amount to a termination of the applicant’s employment.

66A factor that gives me pause in making this finding is the fact that the respondents did not pay out all of the applicant’s hours on her May 30, 2014 cheque. The respondent’s counsel argued that the fact that the respondents only paid the applicant for the hours she had worked in the previous pay period supported the personal respondent’s testimony that she had not terminated the applicant’s employment. However, I note that this argument by the respondents’ counsel was not supported by any testimony by the personal respondent. When her counsel asked her about the relevance of the fact that the respondents issued two more cheques to the applicant, the personal respondent did not understand the significance of the question. Her counsel proceeded to re-ask the question in different ways a couple of more times, but the personal respondent still did not provide any testimony that supported the theory that the issuance of two cheques was significant in this case.

67In these circumstances, I must weigh the inconsistencies in the personal respondent’s testimony against the fact that the respondents issued two cheques to the applicant. On balance, I find that the issuance of two cheques in the absence of supporting testimony on this point from the personal respondent is insufficient to counter balance the inconsistencies in her testimony regarding whether the applicant was in fact dismissed.

68Overall, in the circumstances, I cannot attach any significance to the fact that there were two cheques issued rather than just one after the May 29th phone call between the applicant and the personal respondent.

69Having weighed all of the evidence, I find it more likely than not that the respondents did take the applicant off the work schedule as a result of her absence due to her pregnancy-related illness. I fully appreciate that the personal respondent was unaware that the applicant was in the hospital at the time of the May 29th phone call. However, there was no dispute that the respondents were aware that the applicant was pregnant and that she had informed them that she was ill and needed to be absent from work from May 27-29th. In the circumstances, the respondents should have made further inquiries if they felt that the applicant was not truly ill, as she claimed to be. The respondents had a right to make reasonable requests for information to satisfy themselves that the applicant’s absence was substantiated. However, they did not do so. They proceeded on the assumption that the applicant’s absence was not adequately substantiated without conducting further inquiries. If they had inquired further, they would have discovered that there were good reasons for the applicant’s absence as her pregnancy-related illness required her to be in hospital.

70I find it likely that the respondents took the applicant off the schedule due to her illness and the inconvenience they felt at her pregnancy-related absences which they interpreted as a continuation of a larger pattern of absences on short notice. In these circumstances, I find that the applicant’s pregnancy was a factor in the respondents’ decision to terminate her employment.

Remedy

71The Tribunal’s remedial powers are set out in section 45.2 of the Code. The applicant requested compensation for injury to dignity, feelings and self-respect, and compensation for lost wages. She also requested that the Tribunal require the respondent to develop and implement a workplace human rights policy and that the Tribunal require the personal respondent to take part in human rights training.

Compensation for Injury to Dignity, Feelings and Self-Respect

72I have found that the respondent breached the Code when it failed to accommodate the applicant’s pregnancy and terminated the applicant’s employment. The applicant requested $10,000 as compensation for injury to dignity, feelings and self-respect in this case.

73The compensation for injury to dignity, feelings and self-respect that the Tribunal has awarded in past pregnancy cases generally has ranged between $10,000 and $20,000. See cases cited in McKenna v. Local Heroes Stittsville, 2013 HRTO 1117 at para. 39. The Tribunal’s jurisprudence has primarily applied two criteria in evaluating appropriate compensation for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at para. 52 and Sanford v. Koop, 2005 HRTO 53.

74When I asked the applicant about the effects on her of the events in this case, she focused on her belief that the respondent did not treat her pregnancy appropriately. In the circumstances of this case, I find it appropriate to award $7,500 as monetary compensation for damages for injury to the applicant’s dignity, feelings and self-respect. In terms of the objectiveness seriousness of the conduct, I find that the applicant could have more clearly communicated her request for accommodation to the personal respondent and she could have been clearer about the seriousness of the pregnancy-related illness she was experiencing. I accept as credible the respondents’ claim that, over the course of her employment, they sought to assist the applicant due to their shared cultural background. In my view, breaches of the Code in this case largely arose from the respondents’ lack of understanding of the full extent of their obligations under the Code. Finally, the applicant was a short-term employee and it was clear that she would only have been capable of working very significantly reduced hours due to the illness she was experiencing due to her pregnancy.

Lost Wages

75I note that the applicant received maternity benefits under the EI Act and therefore she did not claim compensation for any lost EI maternity benefits. The applicant sought $5000 in lost wages from the date of her termination. She testified that she searched for work from June to August, 2014. The applicant submitted printouts of six responses she sent to job advertisements on Kijiji. The responses were sent in August and September 2014. The responses are very short. Some say “Hi I’m looking for a position of kitchen helper”. Others say “Hi Dear (sic) I want to apply for [position]. Thanks Nelly.” The applicant testified that she did not obtain any employment between the date of her termination and the day she began her maternity leave except for a bit of babysitting she did for friends.

76The respondent submitted that the applicant failed to mitigate her damages by seeking replacement employment and therefore compensation for lost wages is not appropriate. I agree.

77I have considered the Tribunal’s case law which has accepted that it is reasonably foreseeable that a pregnant woman will be unable to find alternate employment during her pregnancy. See Maciel v. Fashion Coiffures, 2009 HRTO 1804 at para. 49 and case cited therein. I agree with this case law. However, at the time her employment was terminated the applicant was still in the early stages of her pregnancy. There was also no medical evidence advanced at the hearing that would suggest that she was incapable of performing any work because of an ongoing pregnancy-related illness. Taking into consideration all of the evidence admitted at the hearing, I find that the applicant failed to mitigate her losses. She has failed to provide adequate evidence of any serious search for replacement work. For this reason, I do not find it appropriate to award compensation for lost wages in this case.

Public Interest Remedies Sought

78There is no indication in the Response that the respondents have a human rights policy in place at the restaurant or that any management staff at the restaurant has undergone human rights training. Given my findings in this case, I agree that the development of a human rights policy would be beneficial in order to promote future compliance with the Code. To complement the policy, all management staff of the corporate respondent should take part in human rights training.

79I wish to stress the fact that these two remedies should not be taken as punitive or as a finding that the personal respondent intentionally breached the Code. Quite the opposite. It seemed to me in the hearing that the personal respondent and her spouse have a genuine desire to help their employees. However, it also appeared that training on the respondents’ obligations under the Code would be useful to ensure that future situations are dealt with appropriately and in accordance with the Code. In my view, by developing a human rights policy as well as associated human rights training, the respondents will be better equipped to ensure compliance with the Code in the future.

ORDER

80For the reasons set out above, the Tribunal orders as follows:

a. The application is granted.

b. The respondents shall pay the applicant $7,500 as monetary compensation for injury to her dignity, feelings and self-respect;

c. The respondents shall pay to the applicant pre-judgment interest at the rate of 1% in accordance with s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as of May 29, 2014;

d. The respondent shall pay to the applicant post-judgment interest at the rate of 2% on any amounts outstanding commencing 30 days from the date of this Decision, calculated in accordance with s. 129 of the Courts of Justice Act.

e. Within six months of the date of this Decision, the respondents shall develop a human rights policy for the restaurant and provide the applicant with written confirmation once the policy is in place.

f. Within 90 days from the date of this Decision, all of the corporate respondent’s management staff shall take the Ontario Human Rights Commission’s e-learning course Human Rights 101, available online at www.ohrc.on.ca/hr101) and provide the applicant with written confirmation that they have done so upon completion of the course.