HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Monika Cieslinski
Applicant
-and-
Aon Reed Stenhouse Inc. and Joseph Cuscianna
Respondents
DECISION
Adjudicator: Brian Eyolfson
Indexed as: Cieslinski v. Aon Reed Stenhouse Inc.
APPEARANCES
Monika Cieslinski, Applicant
Hendrik Nieuwland and Stephanie Brown, Counsel
Aon Reed Stenhouse Inc. and Joseph Cuscianna, Respondents
Matthew Certosimo, Counsel
Introduction
1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 29, 2013, and alleges discrimination in employment on the basis of sex and pregnancy, and reprisal.
2The applicant was employed by the organizational respondent, Aon Reed Stenhouse Inc. (“Aon”), as a Recruitment Specialist, in Aon’s Corporate Human Resources (“HR”) department. The individual respondent, Joe Cuscianna, was the applicant’s supervisor.
3In her Application, the applicant alleges that the respondents subjected her to discrimination by refusing to grant her a salary increase, and by terminating her employment on March 19, 2013, because she had become pregnant. In the alternative, the applicant alleges that her pregnancy was at least a factor in the decisions not to grant her a salary increase and to terminate her employment.
4The applicant also alleges that Aon reprised against her, contrary to the Code, by refusing to grant her a salary increase because she had become pregnant.
5In their Response to the Application, the respondents deny that they discriminated against the applicant on the basis of any Code ground, or engaged in any reprisal contrary to the Code or otherwise.
6The respondents submit that the applicant’s employment was terminated, without cause, due to restructuring, although performance deficiencies were a factor in the decision to terminate her employment. They also submit that the applicant sought a significant salary increase outside the regular compensation cycle. They submit that they considered the applicant’s request, but ultimately decided that only an ordinary increase was warranted, given the applicant’s performance deficiencies and budget constraints. The respondents deny that the applicant’s pregnancy and planned maternity leave were factors in either the termination of her employment, or in any decisions with respect to her request for a salary increase.
7At the time of the hearing, the applicant was on maternity leave and had accepted an offer to return to work with Aon as a Recruitment Specialist, in a different office of Aon, called Aon Hewitt, commencing September 3, 2014.
Request for Order During Proceedings
8Prior to the hearing, the applicant filed a Request for an Order During Proceedings (“Request”) for production. The respondents opposed the Request. At a case management conference call on May 14, 2014, the Tribunal heard further submissions from the parties regarding the Request.
9On May 15, 2014, the Tribunal issued a Case Assessment Direction (“CAD”), confirming matters agreed to on the conference call, and addressing the Request. In the CAD, the Tribunal granted the applicant’s request for production of documents showing the salary, annual cycle merit increases and incentive bonuses for Aon’s recruitment team, as well as documents that show or discuss any salary increases given to members of the recruitment team, and performance reviews. While the applicant requested these documents for the last five years, the Tribunal granted the applicant’s request for the 2011, 2012 and 2013 time periods only, as five years appeared overly broad in terms of arguable relevance to the issues in dispute.
10The applicant also requested the employment contracts, termination letter, and all correspondence related to the severance arrangement provided to a particular individual whose employment was alleged to have been terminated while she was pregnant, at approximately the same time the applicant’s employment was terminated. The applicant submitted that this information tended to prove that Aon is inclined to terminate employees who become pregnant, including the applicant, and that the requested information constituted similar fact evidence. The applicant did not indicate what role this other employee had, or where she worked in Aon. The respondents submitted that these requested documents were not arguably relevant, raised privacy concerns, and would not assist the Tribunal in determining the applicant’s allegations, but that the applicant could subpoena the other employee.
11The Tribunal indicated in its CAD that, at the time, it was not granting the applicant’s request for production of the documents relating to the other employee whose employment was alleged to have been terminated while she was pregnant. Based on the materials before the Tribunal, and the parties’ submissions as of that time, it was not clear to the Tribunal how the requested documents would have any probative value with respect to the issues in dispute before the Tribunal, and the requested information also raised privacy issues.
SUMMARY OF EVIDENCE
12The applicant and the individual respondent, Mr. Cuscianna, testified at the hearing. Mr. Cuscianna was Aon’s Vice President (“VP”) and Manager of Recruitment in Canada. He reported to Aon’s VP of Global Talent Acquisition (“TA”), Liz Niederkorn, who also testified on behalf of the respondents. The parties also provided the Tribunal with considerable documentary evidence.
Background
13The applicant testified that she is in her mid-30s, and has two young children. She was initially hired by the respondent as a Recruiter in April 2004. On January 1, 2009, she was promoted to the position of Recruitment Specialist.
14The applicant explained that her responsibilities included posting jobs, reviewing resumes, interviewing candidates, making hiring recommendations and drawing up offer letters. She recruited for positions from entry to senior levels for the primary client group, or the corporate office, which was HR, Information Technology, Marketing, Legal and Administration, as well as the “ARS” side of the business, which is the insurance and risk management side of Aon, and subsidiaries of Aon such as Aon Benfield.
15Mr. Cuscianna testified that he was with Aon from March 2008 until October 2013. He started as a Corporate Recruiter, and worked with the applicant. In 2009, he became a Team Leader, followed by a TA Leader for Canada. In April 2012, he was made a VP.
16Mr. Cuscianna testified that, as of 2009, his duties included coaching and monitoring the performance of recruiters who worked under him. He also worked with his Manager, Ms. Niederkorn, who was located in Chicago, on Aon’s talent acquisition strategy, and did some recruiting himself. When he became a Team Leader, the applicant was on his team and reported to him.
17Mr. Cuscianna also testified that his wife is a Manager with Aon Hewitt, that they have two young children, and that his wife just recently returned to work after a maternity leave of approximately one year while employed with Aon.
18Ms. Niederkorn testified that she has been with the respondent for seven years, and that she has been the VP of Global TA for three years. She testified that she has three children, and that when she was offered her current position in 2011, she advised the respondent that she was just three months pregnant with her third child, and that she would be taking maternity leave approximately six months later.
19Ms. Niederkorn testified that she is responsible for talent acquisition across North America and internationally. In 2012 and 2013, Mr. Cuscianna led the Canadian part of her team. She testified that she knew the applicant at the time.
The applicant’s salary increase request
20The applicant created a chart setting out, among other things, the salaries of 11 individuals with the job title “HR Sr Specialist – Talent Acqstn”, which Mr. Cuscianna agreed was accurate.
21According to the chart, the applicant had 8 years and 11 months of service, and the individual with the second-highest service had 5 years and 11 months, followed by individuals with 3 years and 4 months and 3 years and 3 months. The remaining 7 individuals had less than 3 years of service. The individual with the lowest salary earned $45,000 (with 2 years and 5 months of service), and the individual with the highest salary earned $105,560 (with 8 months of service). The applicant’s salary in 2012 was the second-lowest at $56,008.
22The applicant agreed in cross-examination that she thought she was the lowest paid, but she was the second-lowest paid. She agreed that, on more than one occasion before the end of 2012, she told Mr. Cuscianna that she was under-motivated when they spoke about salary and performance. She agreed that a salary increase beyond the ordinary 1.5% was important in order to be more motivated in her job. When asked if Mr. Cuscianna would continue to think she was under-motivated if he could not get her the salary increase, the applicant testified that she thought it would be reasonable that Mr. Cuscianna would think she would be disappointed. She also testified that it was not the first salary increase that she asked for that was turned down, and yet she still continued to do a good job and meet expectations.
23The applicant testified that she spoke to Mr. Cuscianna at the end of November 2012. She told Mr. Cuscianna that she felt underpaid, that a salary increase would definitely improve her motivation, and that she just wanted to be paid fairly like everyone else. She testified that Mr. Cuscianna agreed that she was underpaid and deserved a raise. He said that he would put in a “justification” to get her up to a reasonable salary. She also testified that Mr. Cuscianna asked her what she would like to get paid, and she just said, “Fairly”. He then said that he saw her on par with two other recruiters (who earned $67,000 and $75,000 according to the chart referred to above), and that he would put in a request for $67,000. He asked her if she would be happy with that and she agreed.
24Mr. Cuscianna referred to email correspondence that he had with an Aon HR Senior Consultant, between November 20 and December 4, 2012. Mr. Cuscianna asked the Consultant for a Salary Action Form (“SAF”) for the applicant. The Consultant stated that she needed the following information:
The amount you are proposing. If more than 5% it will require Chicago approval;
The rationale as to why we need to give her an increase. This needs to be included in the SAF;
The reason why we are doing it now and not in April (p.s. if we give her a salary increase now, she will not be eligible in April); and,
What performance rating would you give her today?
25The Consultant also asked if it made more sense to do this in April, to which Mr. Cuscianna responded, “She is grossly underpaid and it is affecting her motivation and drive.” Mr. Cuscianna responded to the Consultant’s request for information, as follows:
Looking to bring her to 65k which will be 8991.69 increase yes more than 5%.
Monika has been with the org for close to 9 years and is the most tenured on the team, however she is the lowest paid by 5k. This has been a concern for her that she has raised several times that I would now like to remedy. Monika has strong connections in the Risk Service Market and has excellent knowledge base of the Brokerage business which will be difficult to replace. She is a flight risk.
Flight risk.
3 solid level performer. While normally we would reserve this increase for someone at level 4 or above, in speaking with Monkia, her ability to stay engaged and motivated is hindered by the fact that she is on the low end of her pay scale. This increase I feel will invigorate and re engage her to perform at a level that exceeds expectations.
26Mr. Cuscianna testified that he was making a case to get an increase to retain the applicant. On December 4, 2012, he confirmed with the Consultant that he would get approval from Ms. Niederkorn.
27In cross-examination, Mr. Cuscianna agreed that the applicant had the longest service, that she had the impression she was the lowest paid, that she was a flight risk, and that she had excellent knowledge of the brokerage business and would be difficult to replace. He also agreed that: being underpaid and knowing it is a reasonable basis to lose motivation; there was a concern the applicant would leave; she continued to be a consistent “meets expectations” employee; and, she was denied pay raises in the past. He testified that the proposed increase was justified. He explained that what he was proposing for the applicant was not unprecedented, but it was above average.
28The applicant referred to a copy of an email that Mr. Cuscianna sent to her on December 6, 2012, regarding “salary increase”. In the email, Mr. Cuscianna stated that he “put in the justification”, but they want him to get Ms. Niederkorn’s approval. He stated that he would keep the applicant posted. In cross-examination, the applicant agreed that she understood that Mr. Cuscianna had to get Ms. Niederkorn’s approval.
29In an email to Mr. Cuscianna dated December 13, 2012, the applicant asked if there was any news on her salary increase. In response, Mr. Cuscianna stated that he had not spoken to Ms. Niederkorn yet, that he needed to get her approval, and that nothing would happen until January. In a subsequent email he told the applicant that he would talk to Ms. Niederkorn before he left on vacation, and to be patient.
TA budget reduction
30Ms. Niederkorn testified that, in 2012, the hiring plans into 2013 started to shrink a bit, and she was asked to manage overall costs. In 2012, there was also a merger with Aon Hewitt, and an attempt to reconcile budgets. There was a focus on meeting hiring needs, as well as making sure they were managing their budgets.
31Ms. Niederkorn testified that, at the end of 2012, she was asked to reduce her budget by about 10%, while there was still a review going on in the United Kingdom (“U.K.”). She testified that she came down about 9%, which was expected of her, and that it had an impact on staffing, as salary is 90% of the cost in talent acquisition.
32Ms. Niederkorn testified that, in all countries, she needed to look at what the hiring forecast was for the business units, the talent they had, the bigger needs, and the talent they supported. She started to think about how she was actually going to meet the budget reduction of 1 million dollars.
33Mr. Cuscianna referred to an email dated January 9, 2013, that he received from Ms. Niederkorn, wherein she asked if he could confirm that they had notified three colleagues that their positions were eliminated, and that they had left at the end of the year (2012). Mr. Cuscianna testified that they had made plans to reduce their contract staff, and he was asked to simply not renew some contracts as of December 31, 2012. In his email response to Ms. Niederkorn, he indicated that he did not renew the contracts of two individuals as of December 31, 2012, and that a third individual would be gone as of January 31, 2013. He testified that these three individuals who reported to him included two recruiters and one social media specialist who identified talent.
34In a reply to Mr. Cuscianna, dated January 9, 2013, Ms. Niederkorn asked how this compares with their budget, as they needed to “hit budget”. She also stated that she believed they had one other “position elimination”. Mr. Cuscianna testified that Ms. Niederkorn was under pressure to make sure they met budget, which meant reducing contract staff. He also testified that, to his knowledge, there was not another “position elimination”, but Ms. Niederkorn thought there was. He testified that position elimination (referred to as “PE”) was a “hot topic” at the time.
35Ms. Niederkorn testified that when she emailed Mr. Cuscianna on January 9, 2013, she was in a meeting where there was a discussion around budgets and what actions the team was taking around hitting budgets. She testified that there was a lot of pressure to hit budget and she needed to know if they were on target. She testified that, in Canada, the staffing resources they had were way over what they needed for overall business needs. She testified that when she took her new role, 22 staff were involved in 2200 hirings, compared to the U.K. which had 1100 hirings but about 8 staff.
36In a further reply to Ms. Niederkorn, Mr. Cuscianna stated that he had not been given their 2013 budget so he could not confirm if they were at, above or below budget. He also stated that they agreed that the three individuals he referred to in his earlier email were the “3 cuts for now”, that she was going to advise later if more was needed, and that they talked about a fourth person potentially being from “Ops” (Operations). In cross-examination, Mr. Cuscianna agreed that the possible fourth person was to be someone in Ops, not a recruiter, and that the applicant was not on that PE list.
37Mr. Cuscianna referred to an email dated Monday, January 14, 2013, that he sent to Ms. Niederkorn, regarding an agenda for their “1-1” the next day, wherein he stated that he wanted to discuss the budget as it relates to three salary adjustments he would like to action for three recruiters, including the applicant. He testified that he wanted to discuss giving them a “bump” in salary.
The applicant advised that she was pregnant
38The applicant testified that she discovered she was pregnant during vacation at Christmas. She returned to work in early January 2013. She testified that she notified Mr. Cuscianna around January 15, 2013, and Mr. Cuscianna also testified that the applicant told him she was pregnant on or about January 15, 2013.
39The applicant testified that she had one-on-one monthly meetings with Mr. Cuscianna, and they met on January 23, 2013. They talked about issues and the salary increase she requested, and he told her that he had put in for an increase of 10%, subject to approval.
40The applicant testified that she emailed Mr. Cuscianna the day after their January 23, 2013 meeting because she calculated that 10% would not come close to the $67,000 he suggested earlier. In a January 24, 2013 email to Mr. Cuscianna, she asked him if he put in a request for “10% or 10K”.
41It appears that Mr. Cuscianna did not respond to the applicant’s January 24, 2013 email, and she forwarded the email to him on January 29, 2013, and asked if he could clarify. Mr. Cuscianna responded three minutes later, on January 29, 2013, stating that if it gets approved by Ms. Niederkorn it will be an 11% increase. In response to a further email inquiry from the applicant, Mr. Cuscianna also confirmed on January 29, 2013 that the 11% increase would be inclusive of any merit increase. The applicant replied that it was not the “67K number” he mentioned. Mr. Cuscianna again responded, on January 29, 2013, that he will see what he can do. He testified that he was trying to manage the applicant’s expectations, while trying to help, and it was all subject to approval. He testified that there was a very good chance that nothing would happen.
Mr. Cuscianna’s salary increase proposal
42In an email dated January 23, 2013, Ms. Niederkorn asked her team, including Mr. Cuscianna, to send her justifications for proposed staff promotions or salary adjustments. She stated that their budget is limited so the information would be helpful as they determine how to best allocate to those most deserving, while knowing they will not be able to do it all. Ms. Niederkorn testified that there was a limited salary pool and she wanted to be fair to her team on a global basis.
43It appears that Mr. Cuscianna responded later that day, providing Ms. Niederkorn and her Executive Assistant (“EA”) with information concerning compensation planning for his team. In cross-examination, Mr. Cuscianna referred to documentation dated January 23, 2013, in which he proposed an 11.43% salary increase for the applicant.
44Mr. Cuscianna also referred to an email dated January 31, 2013, that he sent to Ms. Niederkorn’s EA, attaching a document with compensation justifications for four individuals, including the applicant. He testified that this was the final version of compensation justifications he submitted. With respect to the applicant, Mr. Cuscianna proposed a 15% total salary increase, and states as follows:
Monika has been with TA for 10 years, very strong ARS relationships in Toronto with strong market presence. Current salary is just above Min range and is lower compared to overall team at her skill level. Has expressed concerns over salary and is deemed a flight risk which would be detrimental to overall client service delivery for ARS Toronto. Overall pay rate is affecting her overall engagement.
45Mr. Cuscianna also proposed a salary increase for a recruiter who had been on maternity leave for all of 2012. He agreed in cross-examination that he submitted the January 31, 2013 compensation justifications to Ms. Niederkorn the same day the applicant submitted her maternity leave request to him.
46The applicant referred to a copy of a Request for Leave Form for maternity leave, dated January 31, 2013, and signed by both her and Mr. Cuscianna. She explained that her due date was August 1, 2013, and she expected to be gone for one year.
47Ms. Niederkorn confirmed that she received Mr. Cuscianna’s January 31, 2013 proposal to increase the applicant’s salary, and she read it, if not that day, within a couple of days. She confirmed that she understood that Mr. Cuscianna thought the applicant was a good employee and deserved a raise and that if Mr. Cuscianna suggested a course of action she would not always agree with it, but she would take it seriously. She ultimately did not agree with Mr. Cuscianna’s proposal.
Ms. Niederkorn’s visit to Canada – February 4 to 7, 2013
48Ms. Niederkorn testified that she planned a trip to Canada, and that she typically makes sure that she has time with her team and the clients. Referring to her calendar, she testified that not all meetings were necessarily scheduled on her calendar as she got “pulled” into unscheduled meetings.
49In cross-examination, Mr. Cuscianna was referred to a copy of Ms. Niederkorn’s calendar, which indicates that she was in Toronto between February 4 and 7, 2013. He agreed that he met with her when she arrived on February 4, and that he met with her numerous times on a daily basis while she was in Toronto.
50Ms. Niederkorn testified that she learned in a meeting on February 5, 2013, that there was a restructuring charge to eliminating positions. She testified that the restructuring charge option was open, but the “window” was small, and names had to get to Aon’s Chief Financial Officer (“Aon CFO”) within a day or two.
51Ms. Niederkorn also testified that the clients of TA in Canada included ARS and Aon Hewitt. With respect to ARS, Ms. Niederkorn testified that she met with the finance leader, or CFO, for Canada (“Canadian CFO”), for an understanding of what they had planned around “head count”, and what would be the expectations of her team. She did the same with Aon Hewitt. She testified that, with ARS, the hiring forecast was to come down significantly.
52Mr. Cuscianna referred to an email dated February 6, 2013, at 6:53 p.m., from Ms. Niederkorn, regarding “[a] new name for the Canada PE list”. Mr. Cuscianna was copied on the email, which stated, in part, as follows:
Monika Cieslinski – lets add her name to the PE list to qualify for restructuring in Canada. This is NOT due to the new Canada Operating Model – however I’m assuming the cost of severance can hit the restructure charge?
Timing
Notification mid Feb pending legal review – Joe is scheduling for next week with [counsel] in Canada
Off payroll late March
I plan to use my budget to hire for a very different role in TA Canada – in other words I don’t want to show it as cost savings. After meeting with the clients here and my team I realize that I need to have a different mix of talent on my ARS side. The AH clients are very happy with us per my mtg with […] today.
I will manage this with Joe and legal in Canada – we already met with HR today and they can support Joe locally.
I know that I will need to find other cost savings – I have plans to do that.
53Mr. Cuscianna testified that, prior to receiving this email, to his knowledge, the applicant was not on a PE list. He also testified that, prior to this email, he had not recommended putting the applicant on a PE list.
54Mr. Cuscianna testified that Ms. Niederkorn made the decision to add the applicant to the PE list, and that she made the decision late in the day on February 6, 2013. He also testified that in the days following the decision by his boss, he came to agree with the decision. Mr. Cuscianna testified that, overall, he thought that he had to “put out a lot of fires”, at times, in regards to the applicant, and there were clients that no longer wanted to work with her, so he did agree with Ms. Niederkorn’s decision.
55Ms. Niederkorn testified that her February 6, 2013 email was sent to Aon’s CFO and an individual in Global HR, and copied to Mr. Cuscianna. Ms. Niederkorn testified that it was her decision to put the applicant on the PE list.
56Ms. Niederkorn testified that she decided to put the applicant on the PE list for a couple of reasons. She testified that they had a deadline to meet to let the Aon CFO know what positions would be on the list, and she was catching up that evening. Even more importantly, however, was the series of meetings she had in Canada that week. She testified that when she arrived she met with the Senior VP of HR, Mr. Millard, and the topic was around the “quality of hire”, and he was frustrated about feedback from clients that the quality of hire was suffering, as well as performance relative to where it needed to be. She testified that it was surprising, and they had that discussion, and that was one reason for adding the applicant to the PE list.
57Ms. Niederkorn testified that, second, she met with the Canadian CFO who shared with her that ARS would not be hiring the same numbers as the prior year, and even if people left, he said that they did not anticipate as much turnover and they were not going to replace “one for one”. He told her that they would not see as many requisitions coming through.
58In addition, she asked Mr. Cuscianna to schedule a meeting with the Chief Broking Officer for Canada, and they met with him and asked him how things were going, and how they were doing meeting needs. The Chief Broking Officer was frustrated and said he was not seeing the right quality of candidates, so he had engaged his own firm for $10,000 because he was not getting the “right names”. She testified that he said they were not getting the talent, and he commented about offer letters being very sloppy. She testified that he specifically mentioned the applicant by name and being unhappy with her. Ms. Niederkorn testified that, with all of that, she made a decision that night that she was going to put the applicant on the short list for PE. The applicant was an ARS recruiter, and Ms. Niederkorn really realized that, within ARS, they did not need as many people.
59Ms. Niederkorn testified that she did not know the applicant was pregnant when she sent the email on February 6, 2013 at 6:53 p.m. With respect to her calendar stating “Lunch with Liz” on February 6, 2013, Ms. Niederkorn testified that she made sure she had time with the full group and went out for lunch. She testified that she believed the applicant was at lunch, and the applicant did not tell her that she was pregnant.
60It appears that the next morning, the Aon CFO responded to Ms. Niederkorn’s February 6, 2013 email, and asked Ms. Niederkorn to complete an attached template “for inclusion in restructuring” and to return it so her “asap”. Mr. Cuscianna was copied on the email, and it appears that a few minutes later, at 8:42 a.m. on February 7, 2013, Mr. Cuscianna responded by email to Ms. Niederkorn only, saying, “Please hold off. Would like to discuss.” Mr. Cuscianna testified that he did have a discussion with Mr. Niederkorn, probably between 9:00 and 9:30 a.m. that day, and that it was the first time he told Ms. Niederkorn that the applicant was pregnant.
61In cross-examination, however, Mr. Cuscianna agreed that Ms. Niederkorn knew that the applicant was pregnant before he sent the email to her on the morning of February 7, 2013, and that he was saying “hold off” because his view was that they not terminate the applicant’s employment at that point in time, and that they wait until the end of her pregnancy leave.
62Ms. Niederkorn testified that she discussed the issue of the PE list with Mr. Cuscianna on the morning of February 7, 2013. She testified that they walked downstairs for coffee and he said that he needed to tell her something, “Monika is pregnant”. She testified that she said they needed to talk to “Legal”, and they got coffee and went upstairs. It was left that they would talk about it later.
63At 6:40 p.m. on February 7, 2013, Ms. Niederkorn responded to the Aon CFO’s email asking her to complete the template for inclusion in restructuring, stating, “Disregard this request”. The email was also sent to others, including Mr. Cuscianna, who testified that Ms. Niederkorn sent the email in light of being made aware that the applicant was pregnant. He testified that he had informed Ms. Niederkorn, and said that they might want to hold off on this, and that he would seek legal counsel.
64In cross-examination, Mr. Cuscianna testified that if he decided to terminate an individual’s employment, he always needed Ms. Niederkorn’s permission, and he always got a legal opinion, unless the individual was a probationary employee, in which case he would at least go to HR.
65Ms. Niederkorn testified that she always gets a legal opinion when firing, in every country, even if the employee is probationary. In cross-examination, Ms. Niederkorn agreed that perhaps she was concerned because the applicant was pregnant, and testified that she did not recall being overly concerned once she knew the applicant was pregnant. She testified that there is always a concern when someone’s job is eliminated, and “sure” she was concerned because the applicant was pregnant.
66With respect to stating in her February 6, 2013 email that “Joe is scheduling for next week with [counsel] in Canada”, Ms. Niederkorn was asked what discussion she had with Mr. Cuscianna before sending the email. Ms. Niederkorn testified that she had no specific discussion with Mr. Cuscianna regarding this, and that it was more of an “action” that Mr. Cuscianna would be meeting with Legal in Canada and asking questions and calling her to let her know. She testified that she was also informing the Global HR person that she was not moving forward with eliminating a position without consulting Legal. She testified that she had no discussion with Mr. Cuscianna prior to or at this point about putting the applicant on the PE list.
The applicant does not receive the proposed salary increase
67Ms. Niederkorn testified that, prior to sending the email on February 6, 2013 putting the applicant on the PE list, she had not made a decision one way or another on Mr. Cuscianna’s proposal to increase the applicant’s salary because all of the proposals would have been considered and “built into the process”. She testified that she had to review requests globally, and the budget for salary increases was 2%, which included merit increases and promotions.
68In an email dated February 8, 2013, Ms. Niederkorn asked Mr. Cuscianna to articulate on paper the actions they need to take around “people, clients, process/operations”, and to essentially start a framework for him to develop a plan for 2013 on the items they needed to accomplish.
69By email dated February 12, 2013, Mr. Cuscianna provided Ms. Niederkorn with his “2013 plan”. In his attached plan, Mr. Cuscianna provided comments concerning 18 individuals on his team. With respect to the applicant, he stated as follows:
Remains as steady EE with low engagement. Will look to upgrade talent at end of Mat Leave in 2014 with Executive Recruiter/Sourcer While aggressively managing performance in 2013.
70Mr. Cuscianna testified that he was saying there is low engagement, they will look to upgrade the talent when she returns from her maternity leave with an executive recruiter, and her performance will be managed aggressively in that year. He also testified that, at that time, his understanding of Ms. Niederkorn’s decision regarding a salary increase was that, potentially, it was not going to happen.
71In cross-examination, Mr. Cuscianna agreed that what he wrote concerning the applicant in his 2013 plan was less positive than the justification he submitted for a salary increase for the applicant 12 days earlier, because he was not seeking a pay raise for the applicant any longer, knowing that her employment was going to be terminated. He confirmed that the reference to upgrading talent at the end of the applicant’s maternity leave meant that she would be fired at the end of her maternity leave. He also agreed that there were no new issues with the applicant’s performance between January 31 and February 12, 2013, except that his boss said that they were going to fire her.
72Mr. Cuscianna sent an email to Ms. Niederkorn, dated February 13, 2013, regarding “Merit for Monika”. In the email, he stated that he hopes it is not too late to make some changes, that he thought about it the night before, and that he thinks they should give the applicant back the 2% increase. He explained that she is a “3” rating, and he just does not want to leave any room for litigation on her end when they do the talent exchange upon her return. Also, he thinks giving her “0”, knowing she is underpaid already, will only further de-motivate her.
73Mr. Cuscianna testified that he was trying to fight for something. He put in a proposal that was rejected. Ms. Niederkorn instructed him to not give the applicant any increase, and he thought that would further de-motivate her. He felt that he had to give the applicant something so that she would stay engaged. In cross-examination, he testified that he was worried about her performance after she would be told that she was not getting anything, and he was also mitigating risk. Mr. Cuscianna testified that Ms. Niederkorn said that they could afford 1.5% based on the budget.
74Ms. Niederkorn agreed that, as of February 13, 2013, she had decided that the applicant was not going to get any pay increase. At the time, she knew the applicant was pregnant and assumed she was going to take maternity leave. Ms. Niederkorn disagreed that the decision to give the applicant “zero” was because she was going to be leaving on maternity leave. She testified that she looks at the role, overall performance and client feedback. She testified that they agreed to a 1.5% increase eventually. She also testified that the feedback from the Chief Broking Officer was a factor in her originally deciding to give the applicant zero.
75The parties agree that the applicant met with Mr. Cuscianna on February 20, 2013, and he advised her that she was not receiving any salary increase. She testified that he said, “You’re not going to be happy with this, but you are not getting an increase”. She asked him why, and he said that there was no money in the budget, other than for the merit increase, and that she was not going to get the increase they discussed, but the merit increase she would receive was 1.5%.
The applicant’s employment is terminated
76Mr. Cuscianna referred to an email dated February 21, 2013, that he sent to an HR Manager. In the email, he stated that TA must reduce its headcount by three by the end of March, and that he would like to understand the risk involved of including the applicant as part of that restructure. He stated that, “as you know”, the applicant indicated she is pregnant, and he signed her leave form a few weeks back. He stated that he needs to understand the risk involved for a wrongful termination suit. Mr. Cuscianna testified that the risk was assessed with the HR Manager and Legal.
77Both Mr. Cuscianna and Ms. Niederkorn were asked in cross-examination about an email that Mr. Cuscianna sent, dated February 22, 2013, that he copied to Ms. Niederkorn, wherein he stated, in part, as follows:
Spoke to Liz this AM.
Canada Restructures will now be as follows
Recruiter – Monika Cieslinski (was [another Recruiter]) …
78Mr. Cuscianna testified that a prior decision had been made to put another Recruiter on the list, and Ms. Niederkorn testified that it was her decision to switch the applicant for the other Recruiter. It appears from the evidence that the other Recruiter earned $20,000 more than the applicant.
79The applicant testified that she had another meeting with Mr. Cuscianna on March 1, 2013, to get feedback on her 2012 performance review. Before the meeting, she spoke to Mr. Millard on Feb. 26, 2013, and told him that she met with Mr. Cuscianna and Mr. Cuscianna told her that she was not getting any salary increase. She sought Mr. Millard’s advice on what she should do as she had a good relationship with him and saw him as a mentor. She testified that Mr. Millard advised her to meet with Mr. Cuscianna again, and she mentioned to Mr. Millard that she was going on maternity leave, and he agreed that she should get it resolved before leaving. Mr. Millard offered his support and assistance and said that if she needed him in the meeting with Mr. Cuscianna he would attend. It is not disputed that Mr. Millard did not have authority to alter the applicant’s salary and was not the supervisor of either the applicant or Mr. Cuscianna.
80Mr. Cuscianna referred to an email dated February 27, 2013, in which he confirmed to an Operations Lead in Chicago that three individuals were being let go mid-March, including the applicant. He also referred to an email dated March 1, 2013, that he sent to Ms. Niederkorn, wherein he states that they have “the green light” on the applicant from Legal and HR in Canada.
81The applicant testified that she met with Mr. Cuscianna again on March 1, 2013. With respect to her salary increase, she believes that Mr. Cuscianna said that there was no increase, and that it was not going to happen. She testified that she was quite upset, referring to conflicting information with respect to being told that she deserved an increase and that she was underpaid, and then that it was not going to happen.
82Mr. Cuscianna testified that he had to prepare a “justification for termination” document. The document was attached to an email he sent to a number of people on March 10, 2013, including Ms. Niederkorn, and is referred to as a “Position Elimination (PE) Business Case” template. In the document, he indicated that the primary justification was cost reduction, and that one Corporate Recruiter and two Recruitment Coordinator positions were being eliminated. Under the heading, “Describe the decision making criteria for selections. How are the selections being made between employees in the same position? (i.e. performance, skill, book of business, tenure)”, Mr. Cuscianna wrote the following about the applicant:
Skill only tied to clients ARS with 13 current reqs, does not have dual skill set for both legacy systems, also performance, have received negative client feedback throughout 2012 which was documented in performance review. No other team member had detrimental feedback of this nature.
83The applicant testified that she received an email from Mr. Cuscianna on March 15, 2013, to meet with him on Tuesday, March 19, 2013. He asked her to change a doctor’s appointment and come in for a meeting.
84On March 18, 2013, the applicant sent Mr. Millard an email saying she was following up, and that she would like to take him up on his offer to help with resolving the salary issue with Mr. Cuscianna. She asked if they could schedule a meeting. She testified that both Mr. Cuscianna and Mr. Millard were at the meeting on March 19, 2013, so she thought the meeting was to discuss salary increase, but she was told by Mr. Cuscianna that her employment was being terminated. He provided her with a termination letter dated March 19, 2013. The applicant testified that she was utterly shocked and speechless.
85The applicant testified that she asked why, and Mr. Cuscianna said that it was a business decision, and that they needed to let go of somebody and that somebody was her. She asked him if it was because she was pregnant, and he said, “No”.
86Mr. Cuscianna testified that, at the termination meeting with the applicant on March 19, 2013, his “piece” was very brief, and that Mr. Millard was there. He testified that he informed the applicant that it was her last day, and he said it was due to restructuring. He testified that she asked why again, and he said it was due to restructuring, thanked her for her services, and asked her to leave the room.
87The applicant testified that she did not believe Mr. Cuscianna because of events that had recently taken place, referring to Mr. Cuscianna telling her that she deserved a salary increase; she was a good performer, on par with others; and she was underpaid.
88Mr. Cuscianna referred to a document titled “Canada Talent Acquisition Operating Model 2013”. He testified that he prepared the document with the Operations Lead in Chicago. The document sets out the staff, at the time, with proposed changes. The document indicates that there are 10 Recruiters, including the applicant, 5 Coordinators, and 3 Sourcers, and that, in the future, there will be 8.5 Recruiters, 2.5 Coordinators (by August 2013), and 4 Sourcers. With respect to Recruiters, Mr. Cuscianna testified that, in addition to the elimination of one Recruiter and two Coordinator positions, one Recruiter was moved to a Sourcer role, and a Coordinator was assigned dual responsibility. He testified that the Recruiter position was not replaced while he was with the respondent. Ms. Niederkorn also testified that the applicant’s position was eliminated and it was never replaced.
Performance
89At the hearing, the applicant and Mr. Cuscianna gave considerable evidence concerning the applicant’s performance, and her performance review documentation for 2008 to 2012 was referred to. The applicant was consistently rated as “3 – Meets Expectations”.
90The applicant testified that she received a 1% merit increase, effective April 1, 2011, that was tied to performance. She testified that annual increases are typically between 1% and 6%. She also testified that she received a 2.6% merit increase in 2012, based on her 2011 performance.
91With respect to her 2012 performance plan, the applicant was rated as “3 – Meets Expectations”. She referred to the following comments of Mr. Cuscianna in the plan regarding “Strengths and Accomplishments”: “Strong understanding of Insurance market, players, competitors etc.”; “Able to share feedback and candidate trends to managers”; “Has good relations with most of her clients and all team members”; and, “Very strong at proactive searches and developing candidate pipelines.”
92The applicant also referred to the following comments of Mr. Cuscianna regarding “Areas for Improvement”: “Political Maneuvering and use of judgement with sr. leaders.”; “Motivation and engagement – how do we improve”; and, “Mentorship for [… ]/Project work what does Monika want to do?” With respect to motivation and engagement, she explained that the lack of motivation and engagement at times was tied to the fact that she felt underpaid so they had a whole conversation about that.
93With respect to his comments concerning “Areas for Improvement” in the 2012 plan, Mr. Cuscianna testified that he was questioning how to invigorate the applicant for the next year, and get her to the level where he needed her to be. He testified that he likely completed his part of the applicant’s 2012 performance review before December 31, 2012, and he would not have known the applicant was pregnant at the time.
94The applicant referred to a document setting out the monthly and yearly “Hire Count” and average TTF (“time to fill”) for each recruiter for 2011. She testified that she was the third-highest in terms of total hires, and she was also the third-fastest with TTF.
95Mr. Cuscianna agreed that the applicant was good in “numbers”. He testified that the numbers may have been “padded” a bit, but that they were still good, and he agreed that the applicant’s numbers were better than those of the other Recruiter who had been on the elimination list.
96Mr. Cuscianna also agreed, as he commented in her 2012 performance plan, that the applicant had difficult clients and a difficult market, but a lower than average “Aged Req Status” than that of her peers. He agreed that she did a good job from a numbers perspective.
97In cross-examination, the applicant was referred to copies of email between her and Mr. Cuscianna, dated January 8, 2013. In the email, Mr. Cuscianna expressed a concern that the applicant was not showing sufficient “urgency” when dealing with an ARS client. He stated that he does not want yet another escalation to deal with, and that, as he has always stated, it is how she communicates things that gets her into “these situations.” They agreed to meet the next day to discuss it.
98The applicant testified that the client was one of her difficult and challenging clients, and that she did not agree with Mr. Cuscianna’s comments.
Performance incidents in the respondents’ Response
99In their Response to the Application, the respondents submit that, while not alleging cause, there were serious deficiencies in the applicant’s performance, and the applicant’s performance deficiencies were a factor in the decision to terminate her employment. The respondents refer to a “pattern of performance deficiencies”, including the following four incidents set out in their Response:
a. In May 2012, the applicant failed to respond appropriately with respect to a candidate’s offer of employment. The client within Aon complained to the applicant and Mr. Cuscianna, and referred to the applicant as “totally unprofessional”;
b. In late December 2012, the applicant made serious errors with respect to recruiting a particularly sought-after candidate. The client within Aon complained to Mr. Cuscianna about the applicant, and referred to her work as an “embarrassment”;
c. In early 2013, the Aon Benfield business unit advised that it no longer wanted to work with the applicant. Aon assigned another member of the Aon Canada HR team to provide service to Aon Benfield; and
d. In early 2013, an Aon Branch Manager in Halifax advised that he no longer wanted to work with the applicant. Aon assigned another member of the Aon Canada HR team to provide service to this client.
100At the hearing, both the applicant and Mr. Cuscianna also gave considerable evidence regarding each of these incidents.
First Incident – May 2012
101The applicant testified that, around May 25, 2012, Mr. Cuscianna told her to look out for an offer letter from a particular candidate who had been re-hired by Aon.
102In an email to the candidate dated Friday, May 25, 2012, at 5:34 p.m., an Executive VP at ARS stated that an offer letter was presented a couple of days ago, and that the candidate had not yet responded. He asked the candidate if he was still interested. The candidate responded at 5:45 p.m., and copied a Senior VP and National Broking Director at Aon. He stated that he faxed back a signed letter to the applicant just before 4:00 p.m., as he had promised her verbally on Wednesday. He stated that he had been trying to reach the applicant by phone but had been unable to. He also stated that he reconfirmed his commitment in an email to the applicant that morning, and asked her to extend his gratitude to the Executive VP, the Senior VP, and others.
103In an email to the applicant, copied to Mr. Cuscianna and the Chief Broking Officer for Canada, at 6:02 p.m. on May 25, 2012, the Senior VP and National Broking Director asked the applicant why she was not made aware of this. The Senior VP and National Broking Director stated that the candidate verbally agreed to join them on Wednesday, it is now Friday, and that she has heard nothing from the applicant. She stated that this is “unacceptable”. She stated to Mr. Cuscianna that she mentioned in an earlier email to him, to which he did not respond, that the applicant does not have her cell number on her “signature block”, nor did she update her voice message with her contact information while she was working from home. She stated that this is “totally unprofessional”, and that she depends on his folks to communicate, and to communicate well. She stated that for the Executive VP to have to follow up, only to find out that they already knew the candidate’s position, is embarrassing. She ends the email by stating, “Sorry for the tone everyone, but I am totally frustrated right now.”
104In an email to the applicant at 6:23 p.m. on May 25, 2012, Mr. Cuscianna stated, “Monika what the hell happened here?” On Monday, May 28, 2012, the applicant responded to Mr. Cuscianna, explaining that the candidate did not email her, nor did she receive a faxed letter from him. She stated that she is accessible on email constantly, and that she emailed the Senior VP her cell number, so the Senior VP could have called her, or emailed her. She explained that she was upset by the situation. She also testified that she checked for a signed letter from the candidate on May 28, 2012, and there was no letter from him, and that he ultimately did not return to work with Aon.
105In a subsequent email to the applicant on May 28, 2012, Mr. Cuscianna stated that she did nothing wrong. He suggested that, next time, she leave her number where she can be reached when she works from home. The applicant responded by stating that she is happy to email her manager her cell number, but the only issue she has is that if she leaves it on her voice mail, candidates will call her at all hours of the day, and it is her personal cell number, which she does not want everyone to have. She stated that she thought that many managers assume she has a work Blackberry, so when the Senior VP emails her at night, she thinks she has the ability to email her right back. Mr. Cuscianna replied that he was going to get her a Blackberry.
Second Incident – December 2012
106The applicant referred to a December 13, 2012 email, wherein Mr. Cuscianna told her that they should talk about a situation. In subsequent email, Mr. Cuscianna stated that it was “nothing serious” and that they would talk the next day.
107The applicant testified that Mr. Cuscianna had asked her to contact a candidate to do a “general screen” for a particular entry-level position. She did a phone screen and asked the candidate for a copy of his résumé and some questions. She explained the role and salary range. He thanked her for the call.
108The applicant testified that when she met with Mr. Cuscianna, he told her that the Senior VP and Toronto Branch Manager had already met with the candidate and offered him a position with a higher role and salary, but forgot to mention that. The questions the applicant asked the candidate had somehow offended him, but she was asked to do that by Mr. Cuscianna, who did not know that the Senior VP had already offered the candidate a higher position when he asked the applicant to do a phone screen.
Third Incident – Aon Benfield - 2013
109The third incident related to an employee from Aon Paris relocating to Aon Toronto. The applicant testified that she was asked by a HR Manager at Aon Benfield to create a payroll account for the individual who was coming for a two-week visit, so that he could have access to the respondent’s computer system during his visit. He was not starting his employment until two months later.
110The applicant testified in order to create an employee “ID”, a payroll account needs to be set up by inputting some information, including a Social Insurance (“SIN’). The payroll system is then updated and an employee ID number is generated. The applicant testified that an employee ID cannot be created without a SIN, and that the individual did not have a valid SIN at the time. Without a SIN, she could not create an account and generate an employee number, and she explained this to the HR Manager, who told her to make one up. She testified that she tried for three days to come up with a fake SIN, and every time she did nothing would happen. She told the HR Manager that she tried for three days, and could not do it, so unfortunately she could not help her. She testified that the HR Manager then told Mr. Cuscianna that the applicant was unhelpful, and that she did not want to work with the applicant anymore.
Fourth Incident – Branch Manager - 2013
111The applicant testified that she was asked by a Branch Manager in Halifax to interview a candidate, and convince the candidate to join Aon for an associate account manager position. The Branch Manager said that the candidate worked for their competitor, and had been in a senior role for 25 years. He told the applicant that he was interested in hiring the candidate for a more intermediate role than the one she was in.
112The applicant testified that she did a general screen with the candidate and the candidate ended up turning down the offer. The candidate did not wish to give up 25 years of pension with their competitor, and she did not wish to take a junior role. The Branch Manager was disappointed that the candidate turned down the position, and told Mr. Cuscianna that he no longer wanted to work with the applicant.
Comments in the applicant’s 2012 Performance Plan concerning the four incidents
113The applicant referred to the following “Manager’s Comments”, provided by Mr. Cuscianna in her 2012 Performance Plan, which appear to relate, in part, to the first two performance incidents set out in the respondent’s Response to the Application:
Monika always acts with high integrity and professionalism. There were instances with [the Senior VPs involved with the first and second performance incidents referred to above] which through no fault of her own took critisizm [sic]. However Monika has discussed with her manager the need to improve on her political judgment within a corporate environment. Monika tends to be too transparent at times, not understanding that relationships with clients can be affected.
Also, discussed Salary range as a direct factor of her, at times, lack of motivation. Salary is under review.
114The applicant testified that the above comments were an accurate description. Mr. Cuscianna testified that, with respect to the instances with the Senior VPs, his comments recognized that, technically, the applicant had not faulted, but that she could be a little better at anticipating issues that could arise with clients. With respect to the first issue, Mr. Cuscianna testified that he asked the applicant if she tried to get a hold of anyone when nothing came through before she left on the Friday, and that his advice to her for the future was that, knowing she had not received anything, it probably would have been a good idea to let the clients know that she had not.
115With respect to the first issue, the applicant acknowledged in cross-examination that three “very big people” were involved in a complaint against her, and that the candidate had something to do with ARS, its Executive VP, and the Senior VP and National Broking Director who emailed the applicant on May 25, 2012. She agreed that at 4:30 p.m. she had not received a signed back offer and she went home. She reluctantly accepted that she probably did not tell the Senior VP, or the Executive VP, that the candidate did not sign back. She acknowledged that, as it turned out, the candidate sent a signed offer to a misspelled email address. She agreed that if she had communicated with her client, perhaps what happened could have been avoided.
116The applicant also acknowledged in cross-examination that the she commented in her performance plan that she needed to improve on her ability to communicate with empathy and urgency. She agreed that this comment was correct, and that she had a problem with being under-motivated that needed to be addressed.
117In cross-examination, the applicant was also referred to an email concerning the second performance incident. In an email to Mr. Cuscianna dated December 19, 2012, a Senior VP and National Director says that he is forwarding an email from a potential employee which angers him to no end. He explained that he and the Senior VP and Toronto Branch Manager had agreed to proceed with making an individual an offer. He explained that they “landed on the salary”, but now the individual is being told by the applicant that it is a “lateral” move and “neutral re pay.” He asked where this came from and stated that this is not what the applicant was asked to do. He stated that this is an embarrassment. The applicant agreed that it could have been avoided if there was more communication between her and the client in advance.
118Mr. Cuscianna testified that, being a recruitment professional, he would not use the term “lateral” when trying to get someone, and it is not a standard practice to discuss salary ranges. He would have kept it fairly concise.
119The applicant also referred to the following Manager’s Comments at page 6 of her 2012 performance plan:
Monika’s tenure has allowed her to develop some strong relationships with her clients. It is observed that Monika has a very challenging client base which she has managed well.
Monika has recieved [sic] client feedback around urgency and service from [the HR Manager at Aon Benfield involved with the third performance issue referred to above] as well as the Atlantic Group [the Branch Manager in Halifax involved with the fourth performance incident referred to above] for which dissusions [sic] were had with her in early 2012. There has been significant improvement in later months, not withstanding incidences with [the Senior Vice President involved with the second performance incident referred to above] and [a Department Manager].
120In cross-examination, the applicant testified that she recalled objecting to the comments concerning the HR Manager at Aon Benfield. She testified that she said it was unfair to make comments about her not being able to make fake SINs.
121Mr. Cuscianna testified that the HR Manager at Aon Benfield told him in late 2012 that she no longer wanted the applicant working on any Aon Benfield projects. He testified that there were two factors. One was the “dummy” SIN taking three-plus days, and the client becoming upset with the “urgency”. The second was that the HR Manager was of the view that a candidate for a position at Aon Benfield was dealt with improperly. She wanted another recruiter assigned to the account. Mr. Cuscianna testified that for “all intents and purposes”, the applicant was fired from the account, and he had not had anyone fired from an account during his time with the respondent.
122In cross-examination, Mr. Cuscianna testified that, with respect to the SIN, the applicant tried hard, and that he did not have any evidence to the contrary. He agreed that it was not fair to fault her for that.
123With respect to the incident involving the Branch Manager from Halifax, the applicant agreed in cross-examination that she was fired by a client. Mr. Cuscianna testified that the Branch Manager said that he would like somebody else to work with, and that it was due to “responsiveness and urgency” on the applicant’s projects. He assigned another recruiter to the Halifax Branch in late 2012. He agreed in cross-examination that it was not surprising that the candidate would say no to an intermediate position, and that it was not fair to fault the applicant for that.
ANALYSIS AND DECISION
Assessment of Credibility
124To the extent that this Decision turns on my assessment of the credibility of the applicant and the parties’ witnesses, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 at paras. 356-357:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
125I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and observations as to the manner in which the witnesses gave their evidence.
126I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 at p. 205, with respect to assessing the credibility and reliability of testimonial evidence:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
Was the applicant subjected to discrimination when her employment was terminated?
The parties’ positions
127The applicant submitted that, at the end of 2012 and in early 2013, she was the most experienced recruiter, a “meets expectations” performer, “grossly underpaid”, and, in Mr. Cuscianna’s view, deserving of a significant raise. On January 15, 2013, she told Mr. Cuscianna she was pregnant, and, on January 31, 2013, she completed a request for maternity leave form. Six days later, on February 6, 2013, Ms. Niederkorn wrote an email saying that the applicant was to be fired. A further seven days later, on February 13, 2013, Mr. Cuscianna wrote an email that confirms there was a decision that the applicant would not get any raise, although she was later given a 1.5% merit increase.
128The applicant submits that a prima facie case of discrimination has been established, as she went from being characterized as a high-performing flight risk, deserving of a $7,000/year raise, to an employee who needed to be fired, within six days of submitting a request for maternity leave. The applicant submits that the timing of the denial of a raise and the termination of her employment is highly suspect and creates a strong inference that the decision was motivated by her pregnancy and maternity leave.
129The applicant submits that the respondents have not proved a credible non-discriminatory reason for the termination of her employment and the refusal to provide her with a salary increase, and that the respondents’ explanations are a pretense. More particularly, the applicant submits that Ms. Niederkorn was aware of her pregnancy at the time she made the decision to terminate her employment.
130The applicant also submits that the business case setting out the reasons for the termination of her employment states that the need to cut costs is the primary reason, but the respondents decided to terminate the applicant instead of a more costly employee who earned $20,000 more than her, and the applicant was to be off Aon’s payroll for a year while on maternity leave. With respect to the business case stating that the applicant does not have the dual skill set for both computer systems, the applicant submits that it was never part of her job to use both systems, and, at the time of the hearing, she was scheduled to return to work with Aon Hewitt and would be required to be trained on the other system. She also submits that the explanation in the business case that she received negative client feedback throughout 2012, which was documented in her performance review, is not credible, for reasons including that Ms. Niederkorn did not follow Aon’s progressive discipline policy.
131The respondents submit that Ms. Niederkorn had to cut the global budget by 10%, and had assessed that the head count in Canada was heavy, as compared to the U.K., at a time when ARS anticipated a diminished need for the services provided by the applicant. The respondents also submit that when Ms. Niederkorn visited Canada in early February 2013, she learned that the “restructuring charge window” was about to close, and she had to make a quick decision about the “PE list”. Ms. Niederkorn was also told by a senior person with ARS that he had issues with the applicant, and the services he was getting from TA.
132The respondents submit that when Ms. Niederkorn made the decision to put the applicant on the PE list on February 6, 2013, effectively rejecting the proposed salary increase, she did not know that the applicant was pregnant, and the applicant’s pregnancy could not have been a consideration. The respondents submit that, rather, there were performance issues, and business issues concerning client needs and budget that informed Ms. Niederkorn’s decision. They also submit that Mr. Cuscianna was not the decision maker.
Prima facie case
133Where an applicant has provided sufficient evidence to establish a prima facie case of discrimination, the evidential burden may shift to the respondent to establish a non-discriminatory explanation for the decision or action in question; however, the onus of proving discrimination on a balance of probabilities, or the legal burden of proof, remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 109-119, and Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”) at paras. 70-74.
134With respect to establishing a prima facie case of discrimination, the Court of Appeal in Pieters referred to the Supreme Court of Canada’s decision in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, wherein a prima facie case was described as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the applicant's favour in the absence of an answer from the respondent.” See para. 64.
135The Court of Appeal in Pieters explained that the question of whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant, and that respondents are uniquely positioned to know why they engaged in a particular decision or action. The outcome can depend on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence, therefore, is often essential to accurately determine what happened, and what the reasons for a decision or action were. The Court of Appeal also explained that relatively little affirmative evidence is required before an inference of discrimination is permitted, and the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces a tactical choice: explain or risk losing. If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent’s evidence is false or a pretext. See paras. 72-74.
136The Court of Appeal also confirmed that all that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. The ground must somehow be a “factor” in the adverse treatment. See paras. 59-60.
137In the present case, there does not appear to be any dispute that, at the time the applicant’s employment was terminated, she was Aon’s longest-serving and second-lowest-paid recruiter. Based on the evidence, including the applicant’s performance evaluations, she appears to have been a consistent “meets expectations” performer.
138The applicant notified Mr. Cuscianna that she was pregnant in mid-January 2013. On January 31, 2013, she completed a form, requesting a one-year maternity leave, commencing August 1, 2013. The form was also signed by Mr. Cuscianna. It is clear from the evidence that, at the time, Mr. Cuscianna was proposing a significant salary increase for the applicant, for approval by Ms. Niederkorn. There is also no dispute that Mr. Cuscianna expressed the view that the applicant was underpaid and deserving of the increase. He confirmed that he described her as “grossly underpaid”.
139On February 20, 2013, Mr. Cuscianna advised the applicant that she would not be getting the salary increase they had discussed, and that she would only be getting a 1.5% merit increase. On March 19, 2013, the applicant’s employment was terminated.
140It is clear from the evidence that Ms. Niederkorn sent an email on February 6, 2013, proposing that the applicant be added as a new name to a position elimination list. This was only six days after the applicant completed the maternity leave request form. It also appears from the evidence that another recruiter had been identified for position elimination, but the applicant was ultimately substituted for that person on the list.
141In my view, an inference could be drawn that the applicant’s pregnancy and/or impending maternity leave factored into the decision to terminate her employment, in the absence of any explanation from the respondents. Whether or not the applicant has established a prima facie case, it is clear that the respondents’ evidence is necessary to determine what happened in the present case. In their final submissions, the respondents agreed that the case requires them to respond. They submitted that they have provided a response, and they strongly disagreed with the applicant’s submissions that their response is a pretense.
Non-discriminatory explanation
Awareness that the applicant was pregnant
142While the applicant submits that Ms. Niederkorn was aware of her pregnancy at the time she made the decision to terminate her employment, the respondents submit that Ms. Niederkorn did not know that the applicant was pregnant when she made the decision to put the applicant on the PE list on February 6, 2013.
143Both Mr. Cuscianna and Ms. Niederkorn testified that it was Ms. Niederkorn who decided to put the applicant on the PE list. In her February 6, 2013 email regarding “A new name for the Canada PE list”, copied to Mr. Cuscianna, Ms. Niederkorn states, “Monika Cieslinski – let’s add her name to the PE list…” Mr. Cuscianna testified that, prior to receiving this email, to his knowledge the applicant was not on a PE list, and he had not recommended putting the applicant on a PE list. Indeed, Mr. Cuscianna had just submitted a proposal, on January 31, 2013, that the applicant receive a 15% salary increase, stating among other things that she was a flight risk and losing her would be detrimental to overall client service delivery for ARS in Toronto. In the circumstances, I find that it was Ms. Niederkorn alone who made the decision to add the applicant to the PE list, and this does not appear to be in dispute.
144I note that the applicant testified that after she told Mr. Cuscianna she was pregnant his demeanor towards her changed and he did not speak to her for about three weeks. Mr. Cuscianna, on the other hand, testified that he communicated with the applicant quite frequently during that time period. Given that Mr. Cuscianna continued to seek a significant salary increase for the applicant, and it was not his decision to put her on the PE list, I find it unlikely that Mr. Cuscianna treated the applicant differently after she told him that she was pregnant.
145As to whether or not Ms. Niederkorn knew that the applicant was pregnant at the time she decided to add the applicant to the PE list, the evidence is unclear. Ms. Niederkorn testified that she did not know the applicant was pregnant when she sent the email at 6:53 p.m. on February 6, 2013, regarding adding the applicant to the PE list, and that she had not had a discussion with Mr. Cuscianna about putting the applicant on the list. She testified that Mr. Cuscianna told her the applicant was pregnant the next morning when they went for coffee, and she said that they needed to talk to “Legal”, and it was left that they needed to meet with Legal, and they would talk about it later.
146With respect to stating in her February 6, 2013 email that “Joe is scheduling for next week with [counsel] in Canada”, Ms. Niederkorn testified that she had no specific discussion with Mr. Cuscianna regarding this, and that it was more of an “action” that Mr. Cuscianna would be meeting with Legal in Canada. She testified that she was also informing the Global HR person that she was not moving forward with eliminating a position without consulting Legal.
147In cross-examination, Ms. Niederkorn reiterated that saying in her email that Mr. Cuscianna “is scheduling for next week with [counsel] in Canada” was her “action” for him to do a legal review and that, “He gets it.” When it was put to her that a reasonable party could conclude that she already told Mr. Cuscianna to meet with counsel, she agreed that one could, but testified that she wanted to make two points in her email: one, that Mr. Cuscianna was taking the right steps, and also to let others know what was happening.
148Mr. Cuscianna testified, in chief, that the first time he told Ms. Niederkorn that the applicant was pregnant was on February 7, 2013, after he sent an email to Ms. Niederkorn that morning saying, “Please hold off. Would like to discuss.” In cross-examination, however, Mr. Cuscianna agreed that when Ms. Niederkorn wrote the February 6, 2013 email, he was already scheduling a legal review with Aon’s General Counsel. When it was put to Mr. Cuscianna that, since he met with Ms. Niederkorn daily until she left Canada, he obviously discussed this issue with her before she left Canada, he answered, “Ya, I guess.” When it was put to him that the email says that he is scheduling for next week with Aon’s General Counsel, so he must have discussed this before Ms. Niederkorn sent the email, he answered, “Yes, of course.” When it was put to him that Ms. Niederkorn was not going to unilaterally make a decision to fire one of his employees without talking to him, he answered, “Of course.” He also agreed that the decision was of such a magnitude that it warranted a legal review. Mr. Cuscianna was also asked about his February 7, 2013 email to Ms. Niederkorn in which he asked her to “hold off.” He agreed that, although he said in his evidence-in-chief that he told Ms. Niederkorn to hold off because he needed to tell her that the applicant was pregnant and that he needed to get a legal review, he already had a discussion about getting a legal review.
149Mr. Cuscianna also agreed in cross-examination that he did not say in his February 7, 2013 email to Ms. Niederkorn that the applicant was pregnant, because he already told her and she knew the applicant was pregnant before he wrote the email. Ms. Cuscianna clearly agreed that he was saying “hold off” because his view was that they not terminate her employment at that point in time, and that they wait until the end of her pregnancy leave, and that was the purpose of his email to Ms. Niederkorn.
150In re-examination, Mr. Cuscianna was asked how he reconciles his evidence-in-chief that he told Ms. Niederkorn that the applicant was pregnant shortly after his email to her on February 7, 2013, and his evidence on cross-examination that Ms. Niederkorn already knew the applicant was pregnant before he sent his email to her. He testified that he was confused on cross-examination, and that he asked Ms. Niederkorn to hold off because the applicant was pregnant.
151Mr. Cuscianna clearly gave contradictory evidence with respect to when he first told Ms. Niederkorn that the applicant was pregnant. I note that throughout much of his evidence, including when he was giving evidence on this point, Mr. Cuscianna appeared to be very agreeable to questions put to him by both parties. While I do not believe that Mr. Cuscianna tried to mislead the Tribunal, I find his evidence concerning when he first told Ms. Niederkorn that the applicant was pregnant to be of little assistance.
152While Ms. Niederkorn testified that saying in her February 6, 2013 email that Mr. Cuscianna “is scheduling for next week with [counsel] in Canada” was her “action” for him to do a legal review, I find that her evidence in this regard is not consistent with a plain reading of that statement in her email. It appears that Ms. Niederkorn was informing others as to what Mr. Cuscianna was already expected to be doing.
153I note that Mr. Cuscianna testified in cross-examination that Ms. Niederkorn relied on his experience with staff to help make decisions, and if she made a decision affecting staff in Canada she talked to him, and he would provide her with all the relevant information she needed to make decisions affecting staff. He also clearly agreed that Ms. Niederkorn would not unilaterally decide to fire one of his employees without talking to him.
154In cross-examination, Ms. Niederkorn agreed that she tends to deal with managers on a day-to-day basis, including Mr. Cuscianna in Canada, instead of front-line employees like the applicant, although they have equal access to her and she sometimes reaches out to them. She testified that she sometimes relies on managers to provide her with relevant information she needs to make decisions.
155Ms. Niederkorn was in Toronto between February 4 and 7, 2013, and Mr. Cuscianna agreed that he met with her numerous times on a daily basis when she was in Toronto. Ms. Niederkorn testified that she decided to add the applicant to the PE list at night, after both her and Mr. Cuscianna met with the Chief Broking Officer for Canada and received negative feedback. It is not entirely clear from the evidence if that meeting was on February 6, 2013. In any event, I find it difficult to accept that Ms. Niederkorn would unilaterally decide to eliminate the applicant’s position, and email others telling them she wanted to do that, while simply copying Mr. Cuscianna, and not first having some discussion with Mr. Cuscianna about eliminating the applicant’s position.
156I also note that Mr. Cuscianna clearly agreed in cross-examination that he emailed Ms. Niederkorn on the morning of February 7, 2013, saying “hold off” because he was of the view that they not terminate the applicant’s employment at that point in time, and that they wait until the end of her pregnancy leave. He agreed that was the purpose of his email to Ms. Niederkorn, and his evidence in this regard is consistent with his statement concerning the applicant in his 2013 plan that he emailed to Ms. Niederkorn on February 12, 2013, that she would be aggressively managed in 2013 and they would look to upgrade talent at the end of her maternity leave in 2014. Also, in an email to Ms. Niederkorn dated February 13, 2013, Mr. Cuscianna refers to doing a “talent exchange” upon the applicant’s return.
157In cross-examination, Ms. Niederkorn agreed that Mr. Cuscianna’s February 12, 2013 email could mean that the applicant’s employment was going to be terminated at the end of her maternity leave, and testified that it does not mean that she agreed with that. She testified that Mr. Cuscianna recognized that there was a problem, but they set clear expectations rather than aggressively manage. She also testified that decisions to terminate employment are not made that early in advance, and that Mr. Cuscianna wrote that email and she did not approve of that. She testified that she did not agree, and that she needed to do it (position elimination) right away.
158In any event, I find that it is more probable than not that when Mr. Cuscianna emailed Ms. Niederkorn on the morning of February 7, 2013, and asked her to please hold off, and said that he would like to discuss, it was because he wanted to discuss terminating the applicant’s employment at the end of her maternity leave, instead of prior to her maternity leave, and not because he wanted to inform Ms. Niederkorn that the applicant was pregnant.
159As I indicated above, I find it difficult to accept that Ms. Niederkorn would unilaterally decide to eliminate the applicant’s position, and email others telling them that this is what she wanted to do, while simply copying Mr. Cuscianna and not having some discussion with him about it first. I also find that it is more likely than not that when Ms. Niederkorn stated in her February 6, 2013 email that, “Joe is scheduling for next week with [counsel] in Canada”, that they already had some discussion about Mr. Cuscianna doing that. I note that Ms. Niederkorn also states in the email that she will manage this with Mr. Cuscianna and Legal in Canada, and that “we already met with HR today and they can support Joe locally.”
160Having carefully considered all of the evidence, I find that it is more probable than not that Ms. Niederkorn and Mr. Cuscianna had some discussion about eliminating the applicant’s position, and obtaining a legal opinion in relation to doing so, prior to Ms. Niederkorn sending her February 6, 2013 email to others about adding the applicant to the PE list. I also find that it is more probable than not that Mr. Cuscianna would have told Ms. Niederkorn that the applicant was pregnant in the context of such a discussion. In cross-examination, Mr. Cuscianna agreed that he was concerned about terminating the applicant’s employment after she said that she was pregnant, and he signed off on her maternity leave. I find, therefore, that it is more probable than not that Ms. Niederkorn knew that the applicant was pregnant when she sent the email on the evening of February 6, 2013 about adding the applicant to the PE list. It does not necessarily follow, however, that Ms. Niederkorn knew that the applicant was pregnant when she first considered adding the applicant to the PE list, or that the applicant’s pregnancy and/or maternity leave factored into the decision to add her to the PE list.
161With respect to the applicant’s request for maternity leave form, dated January 31, 2013, Ms. Niederkorn testified on cross-examination that she did not recall knowing that the applicant put in a request for maternity leave, but it is possible she got “something”. She testified that she did not recall getting anything, which does not mean that an email did not come through, but she does not recall getting anything about maternity leave, but it is possible.
162There is no evidence before me as to who, if anyone, and when, the request for maternity leave form was sent. The form includes instructions that it is to be provided to a “Leave Group” email address, a “Benefits Team” email address, the employee’s manager, and the employee’s “HR Business Partner”. None of these contacts would appear to include Ms. Niederkorn. While I have found that it is more probable than not that Ms. Niederkorn knew that the applicant was pregnant when she sent the email on the evening of February 6, 2013, about adding the applicant to the PE list, it is by no means clear from the evidence when she first knew that the applicant was pregnant, and if she knew that the applicant was pregnant when she first considered adding her to the PE list. Even if Ms. Niederkorn was aware that the applicant was pregnant when she decided to add her to the PE list, for the reasons set out below, I find that the respondents have established a non-discriminatory explanation for the termination of the applicant’s employment, and that neither the applicant’s pregnancy nor her maternity leave were factors in the decision to eliminate her position.
Other reasons provided by the respondents
163In their Response to the Application, the respondents submit that the applicant had serious performance deficiencies, and her performance deficiencies were a factor in the decision to terminate her employment. In particular, the respondents referred to four incidents in their Response, and the applicant and Mr. Cuscianna gave considerable evidence at the hearing concerning the four incidents, and the applicant’s performance generally. There was no dispute at the hearing, however, that it was Ms. Niederkorn who decided to add the applicant to the PE list, and there did not appear to be any evidence that Ms. Niederkorn was actually aware of the four incidents, although she testified that the Chief Broking Officer for Canada, who was copied on an email concerning one of the incidents, complained to her about the applicant.
164In cross-examination, Ms. Niederkorn was asked if, when getting feedback, some clients specifically made reference to the applicant and being unhappy with her. Ms. Niederkorn testified that the Chief Broking Officer mentioned the applicant, but no one else specifically mentioned the applicant. She testified that she was not pleased about what she heard. She also testified that the reason she chose the applicant to be terminated was not directly related to the complaint from the Chief Broking Officer. She testified that the decision was about position elimination, and not necessarily performance, but the applicant did get on the list because of performance complaints.
165Ms. Niederkorn did not indicate what the Chief Broking Officer actually said about the applicant, and he did not testify. I note that the Chief Broking Officer was copied on the May 25, 2012 email that a Senior VP sent to the applicant, referred to above, wherein the Senior VP harshly criticized the applicant’s conduct as “unacceptable” and “totally unprofessional”; however, there is no evidence before me as to whether or not he complained to Ms. Niederkorn about that matter.
166There does not appear to be any dispute, and I accept Ms. Niederkorn’s evidence, that she was asked to reduce her budget by about 10% at the end of 2012, and she came down about 9%, and it had an impact on staffing. Ms. Niederkorn testified that on January 9, 2013, she was in a meeting where there was a discussion around budgets and what actions the team was taking around meeting budgets. She testified that there was a lot of pressure to meet the budget, she needed to know if they were on target, and she emailed Mr. Cuscianna during the meeting. He emailed her back confirming that two contract positions had been eliminated as of December 31, 2012 and a third contract position was going to be eliminated as of January 31, 2013. He testified that two of the three positions were recruiter positions. It also appears from the January 9, 2013 email correspondence between Ms. Niederkorn and Mr. Cuscianna that Ms. Niederkorn was going to advise later on if more cuts were needed, and that they had talked about a fourth person potentially being from “Ops”.
167As it turned out, three additional positions were eliminated. Mr. Cuscianna stated in an email to HR, dated February 21, 2013, that TA must reduce its head count by three by the end of March. In an email dated February 22, 2013, he referred to the applicant’s position being eliminated, as well as two other individuals from Ops. It appears from Mr. Cuscianna’s email that another Recruiter had been identified for elimination at some point, and that the applicant was substituted for that individual. It also appears that one of the individuals who was eliminated from Ops was substituted for another individual from Ops who had been identified for elimination at some point, but ended up being retained.
168In cross-examination, Mr. Cuscianna confirmed that a prior decision was made to put a different Recruiter on the restructuring list, but then there was a decision to remove the other Recruiter from the list, and substitute the applicant for the other Recruiter, keeping the other Recruiter.
169The applicant takes issue with the respondents’ business case stating that the need to cut costs was the primary reason for terminating her employment, because the respondents decided to terminate her employment instead of a more costly employee who earned $20,000 more than her, and who had been on the elimination list.
170In cross-examination, Mr. Cuscianna confirmed that he and Ms. Niederkorn were the management team involved in the business case for eliminating the positions, and that he wrote the Business Case document and Ms. Niederkorn just signed off. He agreed that reducing cost was the primary driver. In cross-examination, Ms. Niederkorn testified that Mr. Cuscianna prepared the document and sent it to her. She reviewed it, agreed with it, and signed off on it.
171When asked about a second Recruiter being under consideration for position elimination at one point, Ms. Niederkorn testified that she was aware of the other person being “in the mix”. When asked why they chose the applicant instead of the other Recruiter, Ms. Niederkorn testified that the needs with ARS were not as great as with Aon Hewitt. Aon Hewitt was going to continue to hire, and some of those hires would be upgraded. She testified that she met with Aon Hewitt, and they knew that they needed to bring in a different mix of talent, so they talked about the importance of her team being able to meet those needs. She testified that ARS was not growing as much, and ARS is where she made the decision to reduce the head count. Although Ms. Niederkorn did not explicitly say so, her evidence clearly implied that the other Recruiter who had earlier been identified for elimination recruited for Aon Hewitt, and there is no evidence to the contrary.
172With respect to the other Recruiter being under consideration for elimination at one point, it was put to Ms. Niederkorn in cross-examination that she decided to substitute a pregnant colleague for an individual making $20,000 a year more, and having different personal circumstances. Ms. Niederkorn testified that she did not know about the other individual’s personal circumstances, and it was a decision about where to cut costs. She also testified that she was going through restructuring, and there was a reduction in ARS work. With respect to the business case, she testified that the primary driver was cost reduction, and that it was to meet a global budget, not just in Canada. She agreed that if just comparing the applicant with the other Recruiter who earned $20,000 more, not as much is saved, but testified that she does not make her decisions based on one making $10,000 or $15,000 more or less, and she does not look at that.
173Mr. Cuscianna testified that the applicant replaced the other individual on the list because the feedback the applicant had been receiving was deemed to be more detrimental to the overall client service delivery of the recruitment team. In cross-examination, he agreed that substituting the applicant for a colleague who earned $20,000 more was inconsistent with the primary driver of cutting costs, but testified that it was still cutting costs, and that client services had to be thought about as well. In re-examination, he testified that the primary driver was to reduce costs, but that the secondary driver towards client service delivery had to be weighed when making the decision. He testified that the applicant’s pregnancy absolutely did not weigh into the decision to eliminate her position.
174The applicant also submits that the explanation in the business case that she received negative client feedback throughout 2012, which was documented in her performance review, is not credible, for reasons including that Ms. Niederkorn did not follow Aon’s progressive discipline policy.
175Ms. Niederkorn testified in cross-examination that she had to eliminate a position, and the applicant’s name came up because ARS was going down in head count, and because of client feedback. She testified that, if client feedback was wrong, she still would have made the “call”, and that the call is hard, but people have to go. She also testified that she did not know the applicant was pregnant, and that pregnancy had nothing to do with it.
176In the applicant’s 2012 performance review, Mr. Cuscianna referred to the first two performance incidents referred to above involving the Senior VPs. In the review, he stated that the applicant took criticism through no fault of her own, but also that she had discussed with him the need to improve on her political judgment. He testified that his comments recognized that, technically, she had not been at fault in those instances, but that she could be a little better at anticipating issues that could arise with clients. In the review, he also referred to the third and fourth performance incidents referred to above.
177In his evidence-in-chief, Mr. Cuscianna testified that in the days following Ms. Niederkorn’s decision to add the applicant to the position elimination list, he came to agree with the decision. He testified that, overall, he thought that he had to “put out a lot of fires” at times in regards to the applicant, and there were clients that no longer wanted to work with her, so he did agree with Ms. Niederkorn’s decision.
178With respect to stating in the PE Business Case document that he prepared that the applicant received negative client feedback throughout 2012, which was documented in her performance review, Mr. Cuscianna testified that no other team member had detrimental feedback.
179Mr. Cuscianna agreed in cross-examination that the second reason for terminating the applicant’s employment was negative feedback documented in her 2012 performance review. He testified that she was fired by two clients, and agreed it was unprecedented for him. When asked why he said in January 2013 that she is a good employee, a flight risk and that they need to give her a raise to keep her, he testified it was not that performance was not a big deal, but he wanted to motivate the applicant so that he could stop “putting out fires.” He testified that the reason for the raise was to quell any further trouble. When asked if he agreed that, in January 2013, the “unprecedented” events were not a reason to fire her, Mr. Cuscianna testified that he did not suggest that, and that he suggested “the opposite” to stop it from happening again. He agreed that he said it would be detrimental to them if she left, and testified that he wanted to keep her; however, six weeks later the unprecedented events were a reason to fire her. He also testified that it was Ms. Niederkorn’s decision to terminate the applicant’s employment, and he agreed with her.
180In cross-examination, Mr. Cuscianna also agreed that it was not fair to attribute criticism to the applicant in the Business Case document for what she had done, and that fault was attributed to her in March 2013 for things that were not her fault. He agreed that what he did on the business case was not fair. In re-examination, Mr. Cuscianna denied that he was attributing fault to the applicant in the business case. He testified that the purpose of the business case was to provide justification for the cuts that were being made, and that it was not a disciplinary document.
181Again, I found Mr. Cuscianna to be very agreeable to the questions put to him on cross-examination, and I have some difficulty with his evidence that what he did on the Business Case was not fair to the applicant. Mr. Cuscianna earlier testified that, in the days following Ms. Niederkorn’s decision, he came to agree with the decision, and thought that he had to “put out a lot of fires” at times in regards to the applicant, and there were clients that no longer wanted to work with her. He also stated in her 2012 performance review, in relation to the first two performance incidents referred to above, that they discussed the need to improve on her political judgment.
182In any event, there is no dispute, and I have found, that Ms. Niederkorn made the decision to eliminate the applicant’s position, and she testified as to her reasons. Mr. Cuscianna drafted the Business Case document, after Ms. Niederkorn made the decision, and he set out the justification for the cuts that were being made.
183Mr. Cuscianna testified that the reference to not having a dual skill set for both systems in the Business Case was a reference to the applicant only knowing how to use the ARS recruitment software, and not the Aon Hewitt system. He also agreed that using the Aon Hewitt system was never part of her job, but that when he completed the PE Business Case document, the applicant was a candidate for termination because she did not know how to use the Aon Hewitt system. He explained that some people were using both, and he would have liked her to do so, but she was not required to. He agreed that now that the applicant has been re-hired by Aon Hewitt, she will have to be trained on the Aon Hewitt system when she returns.
184Ms. Niederkorn testified in cross-examination that the applicant not having a “dual skill set for both legacy systems” was not her primary reason for her decision, and that it was a fact. She testified that she did not make a decision because the applicant was pregnant, and it was not because the applicant did not know how to use the other computer system. She testified that she had to cut costs globally.
185Having carefully considered all of the evidence, I am satisfied that the respondents have established a non-discriminatory explanation for the elimination of the applicant’s position, resulting in the termination of her employment. Ms. Niederkorn was asked to reduce her budget by about 10%, and it appears from the evidence that six positions in TA in Canada, including the applicant’s, were eliminated, beginning with two positions on December 31, 2012 and four more in 2013.
186The uncontradicted evidence of Ms. Niederkorn is that when she was in Toronto in early February 2013, she found out that she had a deadline to let Aon’s CFO know names for position elimination within a day or two, and the Canadian CFO shared with her that ARS would not be hiring the same numbers as the prior year, and told her that they would not see as many requisitions coming through. Ms. Niederkorn met with Mr. Millard and he was frustrated about feedback from clients about the quality of hire. Also, when she met with the Chief Broking Officer for Canada, he was frustrated and said he was not seeing the right quality of candidates. He also mentioned the applicant, and Ms. Niederkorn was not pleased with what she heard. She testified that the applicant was an ARS recruiter, and she realized that, within ARS, they did not need as many people. She also testified that the decision was about position elimination, and not necessarily performance, but that the applicant did get on the list because of performance complaints.
187I have no reason to doubt Ms. Niederkorn’s evidence that she did not need as many people with ARS, so that is where she decided to reduce the head count. While Aon offered the applicant a position as a recruitment specialist for Aon Hewitt on April 23, 2014, it appears undisputed that, at the time of the hearing, some 16 months after Ms. Niederkorn decided to eliminate the applicant’s position, the applicant’s position as a recruiter for ARS had not been replaced. I also have no reason to doubt Ms. Niederkorn’s evidence that she received negative feedback regarding the applicant. While Ms. Niederkorn did not testify as to what the Chief Broking Officer for Canada complained to her about concerning the applicant, he was copied on at least one email in which a Senior VP was very critical of the applicant’s conduct.
188It is clear that the applicant’s employment was not terminated for cause. Moreover, I am satisfied that, in the context of Ms. Niederkorn having to reduce her budget, having less need for services with ARS, and receiving negative feedback in relation to the applicant who recruited for ARS, the respondents have established a non-discriminatory explanation for the decision to eliminate the applicant’s position. I find that the applicant has not established on a balance of probabilities that her pregnancy and/or her maternity leave factored into the decision to eliminate her position and terminate her employment.
Was the applicant subjected to discrimination in relation to salary increase?
189While the applicant submits that the respondents have not proved a credible non-discriminatory reason for the refusal to provide her with a salary increase, the respondents submit that the proposed salary increase was effectively rejected when Ms. Niederkorn decided to put the applicant on the PE list.
190Ms. Niederkorn testified that she would have reviewed Mr. Cuscianna’s January 31, 2013 salary increase proposal for the applicant within a few days of receiving it. She testified that she ultimately did not agree to it, but, prior to sending the email on February 6, 2013 putting the applicant on the PE list, she had not made a decision on Mr. Cuscianna’s proposal to increase the applicant’s salary. She explained that all of the proposals would have been considered, that she had to review requests globally, and the budget was limited to 2%, which included merit increases and promotions.
191It appears that, at some point, there was a decision to not give the applicant any salary increase. Mr. Cuscianna testified that, as at February 12, 2013, he was no longer seeking a pay raise for the applicant, knowing that her employment was going to be terminated. He did send an email to Ms. Niederkorn, however, dated February 13, 2013, stating among other things that he thought that they should give the applicant back a 2% increase, and that he thought giving her “zero”, knowing she is underpaid already, will only further de-motivate her. He testified that the proposal he put in was rejected, and Ms. Niederkorn instructed him to not give the applicant any increase. He testified that Ms. Niederkorn then said that they could afford 1.5% based on the budget.
192Ms. Niederkorn also testified that Mr. Cuscianna would have seen adjustments she made in the compensation system, and he clearly was not happy with her decision and he asked her to “give back”. She testified that merit increases are not given to everyone, and they are not necessarily something that one is owed. She agreed that, as of February 13, 2013, she had decided that the applicant was not going to get any pay increase. She strongly disagreed that the decision to give the applicant “zero” was because she was going to be leaving on maternity leave. She testified that she looks at the role, overall performance and client feedback. She testified that they agreed to a 1.5% increase eventually. She also testified that the feedback from the Chief Broking Officer was a factor in her originally deciding to give the applicant zero.
193The applicant testified that Mr. Cuscianna told her on February 20, 2013 that there was no money in the budget, other than for a merit increase, and that she was not going to get the increase they discussed, but the merit increase was 1.5%.
194In cross-examination, Mr. Cuscianna testified that the salary increase that he proposed for the applicant on January 31, 2013 was rejected. He did not disagree that the proposed increase was rejected because of a decision to fire the applicant, and testified that it was not his decision.
195It appears that the decision to terminate the applicant’s employment may have effectively curtailed a greater consideration of Mr. Cuscianna’s proposed salary increase for the applicant. While the applicant received a standard 1.5% merit increase, it is by no means clear what she might have received had her position not been eliminated. It appears undisputed from the evidence, however, that Ms. Niederkorn was under pressure to reduce her budget, and she had limited resources for salary increases. Given that I accept that Ms. Niederkorn received negative feedback about the applicant, and in the context of having to reduce her overall budget, I find that the respondents have provided a non-discriminatory explanation for Ms. Niederkorn’s initial position that the applicant not be given an increase, followed by a decision to give her a standard 1.5% increase. Whereas the non-discriminatory termination of the applicant’s employment may have affected the consideration of the proposed salary increase, I do not find that the applicant’s pregnancy or maternity leave were factors in any decision-making concerning a salary increase for her.
196The applicant also alleged in the Application that Aon reprised against her, contrary to the Code, by refusing to grant her a salary increase because she had become pregnant. In particular, she alleged that the refusal to grant a salary increase was a deliberate attempt to retaliate against her for attempting to negotiate a salary increase while pregnant and planning to take maternity leave; however, the reprisal allegation was not pursued at the hearing.
197In any event, I also find that the evidence does not support that the applicant was subjected to any reprisal within the meaning of the Code, with respect to any decision-making concerning a salary increase. I have found, as set out above, that the respondents have provided a non-discriminatory explanation for the decisions that were made in relation to the proposed salary increase. The applicant also did not point to any evidence that would support an intention on the part of the respondents to reprise against the applicant.
Conclusion
198For all of the above reasons, the Application is dismissed.
Dated at Toronto, this 15th day of May, 2015.
“Signed by”
Brian Eyolfson
Vice-chair