Dawn Fleming v. Salon 130 Inc., 2015 HRTO 743

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dawn Fleming

Applicant

-and-

Salon 130 Inc.

Respondent

DECISION

Adjudicator: Eli Fellman

Date: June 5, 2015

Citation: 2015 HRTO 743

Indexed as: Fleming v. Salon 130 Inc.

APPEARANCES

Dawn Fleming, Applicant

Self-represented

Salon 130 Inc., Respondent

Greg Northover, Representative

1This is an Application filed on December 6, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex. More specifically, the applicant alleges that the respondent terminated her employment because she was pregnant and would be away from work for an extended period of time for parental leave. The respondent denies that the decision to terminate the applicant’s employment was related to her pregnancy. The respondent asserts that the applicant was terminated because her job performance was inadequate and she sometimes did not interact appropriately with clients, co-workers, and her supervisor.

Background

2The corporate respondent is an upscale hair salon catering to professional clients. Ms Le is a master stylist and the President of the corporate respondent. Her partner, Mr. Northover, is the CEO and handles financial and human resource matters, but is not involved in the salon’s day-to-day operations.

3The salon was opened in 2012. The salon found it difficult to recruit and retain qualified and experienced hair colourists in its first several years. It is important for the salon to have a competent colourist who can work at a good pace. Colour treatments occur before a client has their hair cut and styled by Ms Le or another stylist. If colour treatments are not completed in a timely manner, it can result in delays and dissatisfaction for the clients, and stylists waiting for extended periods of time.

4In late June 2012 the applicant stopped by the salon to visit Ms Le, who she knew because they had worked together previously at another salon. The applicant held herself out as someone with substantial experience in the salon industry who could perform both stylist and colour application functions. Ms Le and Mr. Northover, in need of new employees, agreed to hire the applicant. The parties entered into a written employment agreement that took effect on July 2, 2012, with a three-month probationary period.

The first two disciplinary letters

5Two disciplinary letters were given to the applicant in September 2012. The first letter was provided to the applicant during a meeting with Ms Le and Mr. Northover on September 6, 2012. This letter addresses tardiness, failure to be prepared for work, and failure to control her emotions when dealing with clients and her supervisor Ms Le. The letter threatens the applicant with termination in the event of any reoccurrence of unacceptable behaviour and provides that the applicant’s probationary period will be extended until December 6, 2012.

6The second letter was provided to the applicant during a meeting with Ms Le and Mr. Northover on September 24, 2012. This letter addresses tardiness and the fact that it took the applicant seven hours to complete a colour treatment on September 22, 2012 instead of the scheduled four hours. The letter provides that the applicant’s probation is to continue until December 6, 2012. The parties agree that her probationary period ended on that date.

Applicant announces that she is pregnant

7The parties agree that the applicant told Ms Le and Mr. Northover that she was pregnant on the afternoon of December 22, 2012.

Applicant’s testimony

8The applicant testified that Ms Le and Mr. Northover seemed shocked by this news. According to the applicant, she said that she wanted to work part-time during her maternity leave, but Ms Le and Mr. Northover then looked at each other and said that they will have to hire someone. The applicant also recalled that on an earlier occasion Ms Le had told a client that it is difficult to have children while working in the salon industry.

Respondent’s testimony

9Ms Le admitted that she was surprised by the announced pregnancy because the applicant had told her previously that she was mad at her (then) partner and was no longer having intimate relations with him. She did not recall the applicant offering to work part-time during her maternity leave.

10Mr. Northover acknowledged that he stated that he would have to find a replacement for the applicant when she announced that she was pregnant. He testified that the replacement he was referring to would fill the applicant’s job while she was away during her maternity leave, and he is well aware of an employer’s responsibility to give an employee back her job after a maternity leave.

11With respect to the conversation that the applicant overheard about having children while working the salon industry, Ms Le testified that she may have said something like this. She explained that in her experience it is difficult for a stylist who is compensated on a commission basis to take a maternity leave because she may lose many of her clients while she is off work. She noted that the applicant was paid an hourly wage instead because she knew that the respondent did not have an established client base to generate commission-based income.

12With respect to the applicant’s announced pregnancy, Ms Le testified that she assumed that a replacement would have to be found while she was away on maternity leave, but that she would return to work in a year at the end of her maternity leave. She noted that a current employee of the salon has just left on maternity leave and will be returning at some point.

Christmas party incident

13On December 22, 2012, Ms Le and Mr. Northover gave the salon staff Christmas presents. The applicant was very appreciative of the expensive purse she received and believes that it is proof that Ms Le and Mr. Northover believed she was doing a good job at the salon. Mr. Northover testified all employees received generous gifts in order to acknowledge their contribution to the salon and to serve as incentives.

14Later that same day there was a Christmas party for the salon held at a restaurant. There was an incident at the salon involving the applicant and another employee, Jenna Forsyth. The parties do not agree on what happened.

15The applicant acknowledges that Ms Forsyth started crying during their conversation, but does not know why. The conversation was related to an earlier incident at the salon when the applicant was critical of Ms Forsyth’s treatment technique in front of a client. The applicant denies pointing her finger at Ms Forsyth and creating a “big scene” but apologized to Ms Forsyth outside the restaurant as the group was departing.

16Ms Le, Mr. Northover and Ms Forsyth provided fairly consistent testimony about what happened at the restaurant. They testified that the applicant behaved inappropriately by criticizing Ms Forsyth’s job performance, raising her voice unnecessarily and pointing her finger towards Ms Forsyth in a rude manner. This caused Ms Forsyth to cry and seek comfort from her boyfriend who was also at the restaurant. Mr. Northover testified that the applicant ruined the festivities and he decided the party should end early.

Third disciplinary letter

17As a result of the incident at the restaurant on December 22, 2012, Ms Le and Mr. Northover scheduled a meeting with the applicant on December 24, 2012.

18A third disciplinary letter was prepared for the applicant and presented to her at the meeting. This letter addresses the incident at the Christmas party and also an incident that occurred in the salon earlier in the same day when the applicant had a client consultation which resulted in the client deciding against a possible treatment and leaving the salon unhappily.

19The third disciplinary letter placed the applicant on a further probation. In addition, a revised winter schedule was prepared which reduced the applicant’s hours somewhat. Mr. Northover testified that the change in schedule was due to: low sales at the salon; a new colourist had just been hired to work on Saturdays; and the need to reduce the number of shifts that the applicant and Ms Forsyth would have together as a result of the incident at the restaurant on December 22, 2012.

20The December 24, 2012 meeting did not go well. The applicant testified that she did not think it was fair that the letter addressed the Christmas party because it was not a serious incident and she was not being paid by the salon to attend the party. She also accused the Ms Le and Mr. Northover of showing favouritism to Ms Forsyth and disputed the assertion in the letter that she gave Ms Forsyth corrective action in a demeaning and embarrassing manner. She accused Mr. Northover of raising his voice and swearing at her.

21Mr. Northover testified that the applicant was hostile and argumentative and he was upset by her refusal to accept responsibility for her conduct and her failure to control her emotions.

22The meeting effectively ended partway through when the applicant left the salon without signing the third disciplinary letter. Mr. Northover testified that after the applicant left the salon he and Ms Le decided that based upon the conduct of the applicant during the meeting her employment would be immediately terminated.

Termination

23The applicant’s next scheduled shift was December 27, 2012. The applicant was surprised to be met at the salon door that morning by Ms Le and Mr. Northover and told that her employment was being terminated.

Applicant’s assessment of her job performance

24The applicant’s view was that prior to her termination things were going well for her at the salon and that she was a hard-working and competent colourist who loved her job. She estimated that 98% of her clients were satisfied but she had occasional technical problems or ran late with clients due to inadequate training or because clients were not forthcoming with respect to their past hair treatments. She believes she got along with her co-workers and Ms Le and if there were any issues they were always resolved by the end of the day.

25The applicant’s witness Danielle Skujins worked at the salon as an assistant from July to November 2012. Her employment was terminated because Ms Le and Mr. Northover were not satisfied with her job performance. She testified that the applicant was very dedicated and passionate about her job. She got along well with the applicant and enjoyed the training provided by the applicant. She recalled Ms Le saying on one occasion that it is difficult to juggle a family and a career as a stylist.

Respondent’s assessment of the applicant’s job performance

26Ms Le and Mr. Northover hold a very different view of the applicant’s job performance. They acknowledge that the applicant was hard-working but it became apparent to both of them shortly after she started that she did not have the skill or experience required to complete hair colour treatments in a timely manner. They also believe that the applicant had difficulty with her interpersonal skills and did not always interact with her co-workers and colleagues in a professional manner. Further, the salon’s clients found her to be argumentative and overly technical. The applicant was frequently 5 to 10 minutes late for morning shifts and on occasions came to work without her hair and make-up done in a way to create a “professional appearance”. As a result, Ms Le and Mr. Northover believed that the salon’s efficiency and reputation in the community suffered.

27Ms Le testified that she worked with the applicant every day and observed that she was consistently taking longer than should be expected with colour treatments. As a result, clients had to wait for extended periods of time and Ms Le had to offer free haircuts to placate her customers or have someone else finish the colour treatments for the applicant. Ms Le testified that she was very embarrassed by what was happening at the salon and she sometimes went home in tears. Ms Le found it difficult to communicate and give directions to the applicant because she would become angry and lose control of her emotions.

28Ms Lee testified that the applicant was not terminated earlier because she was hoping that with some additional time and training the applicant’s performance would improve. She attempted to give the applicant further training herself and arranged for a full day of colour training from a representative of a colour manufacturer. Ms Le felt that the training did not result in any improvements and she continued to be disappointed in the applicant’s skill level and speed. Therefore, she wanted to terminate the applicant’s employment once Ms Forsyth was fully trained and capable of assuming the applicant’s responsibilities.

29Mr. Northover testified that he had decided in September 2012 that the applicant’s employment should be terminated for performance reasons but it did not happen until December because he needed time to create documents in order to “build up a file” as he suspected she would contest a termination, and because the salon needed time to find and train a replacement for the applicant. He expressed regret for having to terminate the applicant’s employment and described it as the worst part of his job.

30Jenna Forsyth testified that she began working at the salon as a stylist sometime after the applicant had begun. She testified that the applicant made her feel uncomfortable and unwelcome, and frequently made harsh and belittling comments about her in front of clients. Ms Forsyth characterized the applicant’s behaviour as “bullying” which upset her feelings. She also testified that the training the applicant attempted to provide her was confusing, her colour formulations were overly complex and she frequently ran late with clients.

LEGAL TEST

31The relevant sections of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

10(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

32The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent terminated the applicant’s employment because she was pregnant. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. The applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. Direct evidence of discrimination is also unnecessary, as discrimination will more often be proven by circumstantial evidence and inference. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.

33The applicant argued that she has met her onus of establishing that it is more likely than not that she was terminated due to her pregnancy. The applicant submits that the fact that she was dismissed several days after telling the respondent that she was pregnant, Ms. Le’s and Mr. Northover’s reaction to her announced pregnancy, and prior statements made by Ms. Le about becoming pregnant while working in the hair salon industry, support a finding of discrimination.

34The respondent submits that the applicant’s pregnancy had nothing to do with the decision to terminate her employment. In support of its position that the termination was due entirely to the Applicant’s inadequate job performance, the respondent points to the ongoing difficulties she had completing colour treatments in a timely manner, problems she had in her interactions with clients, colleagues and her supervisor, and the fact that she was given three disciplinary letters addressing these problems prior to her termination.

ANALYSIS

35For the reasons set out below, I find that the applicant has not established that her pregnancy was a factor in the decision to terminate her employment.

36It is undisputed that the applicant’s employment was terminated without notice just five days after she told Ms Le and Mr. Northover that she was pregnant. Further, Mr. Northover’s statement upon learning of her pregnancy that the respondent would now have to replace the applicant during her maternity leave suggests that he was not entirely pleased by this news. These facts, while circumstantial, are sufficient to suggest that there may be a nexus between the applicant’s pregnancy and her termination. Thus, the applicant has established a prima facie case of discrimination.

37Upon establishing a prima facie case of discrimination contrary to the Code, the evidentiary burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the termination was not discriminatory. See Jagait v. IN TECH Risk Management, 2009 HRTO 779.

38I find that the evidence establishes that it is more likely than not that the applicant’s employment was terminated solely for non-discriminatory reasons, namely Ms Le’s and Mr. Northover’s well-documented concerns about her job performance, skill level and problems she had in her interactions with clients, colleagues and her supervisor. I appreciate that because the termination occurred so soon after the applicant announced that she was pregnant she had cause to believe that these events are connected. However, as described below, I am satisfied that it was the events that took place after the applicant announced her pregnancy that ultimately resulted in the respondent’s decision to terminate her employment.

39During the course of her six-month employment, the applicant received three disciplinary letters relating to various aspects of her job performance. These letters were provided to the applicant shortly after the events described in the letters. Therefore, it cannot be argued that the letters, or the respondent’s concerns outlined in the letter, were created after the termination as a means of justifying a discriminatory termination of employment.

40The concerns and issues addressed in the letters, the applicant’s inadequate speed and her interactions her supervisor Ms Le and some other employees, are consistent with the oral testimony provided by the respondent’s three witnesses. I found no reason to question the credibility of any of the respondent’s witnesses with respect to their testimony about the applicant’s job performance and skill level. Their testimony was clear and consistent both internally and between the three witnesses.

41I appreciate that the applicant does not agree with the respondent’s assessment of her job performance and disputes the respondent’s characterization of some of the incidents addressed in the letters. I also acknowledge that the applicant attributes some of the problems she experienced to her lack of training and experience and clients’ failures to provide all necessary information.

42I am not an expert in the hair care industry. I lack the expertise required to review each disputed incident to determine whether the applicant provided the appropriate level of service expected in the salon industry and exhibited the expected skill level for the treatment in question. However, based upon the three disciplinary letters and the oral testimony described above, I am satisfied that it was reasonable for the respondent to conclude that the applicant’s skill levels and job performance were inadequate for the type of high-end salon that Ms Le and Mr. Northover were striving to create.

43Thus, the respondent has established that it had serious concerns about the applicant’s job performance prior to the applicant’s announcement on December 22, 2012 that she was pregnant.

44After the applicant disclosed to the respondent that she was pregnant there were two further work-related incidents that ultimately led to her termination.

45With respect to the Christmas party on December 22, 2012, I find it more likely than not that the applicant behaved in an inappropriate and unprofessional manner towards Ms. Forsyth. Ms. Le, Mr. Northover and Ms. Forsyth provided consistent testimony that the applicant was addressing Ms. Forsyth in a harsh and belittling manner during this event. The applicant acknowledged that Ms. Forsyth began crying during their interactions. The applicant’s assertion that there was no reason for Ms. Forsyth to behave in this manner seems implausible. The evidence suggests it was unusual for Ms. Forsyth to break down and cry and she was not prone to behaving in this manner in the workplace.

46In addition to the applicant’s inappropriate behaviour at the Christmas party on December 22, 2012, the evidence also suggests that the applicant did not conduct herself in a professional manner during the December 24, 2012 meeting with Ms Le and Mr. Northover. This was clearly an emotional meeting and the applicant was not the only attendee who raised her voice and expressed anger. However, by refusing to take direction from her employer and then leaving the meeting, the applicant exhibited unprofessional behaviour.

47A closer examination of the circumstances surrounding the termination also points to the lack of any nexus between the applicant’s announcement that she was pregnant and her termination. The applicant informed the Ms Le and Mr. Northover that she was pregnant on December 22, 2012. On December 24, 2012, the applicant and Ms Le and Mr. Northover had a meeting to discuss the Christmas party incident and a problem that occurred in the salon that same day. Had the respondent decided to dismiss the applicant upon learning that she was pregnant it is logical to believe that this news would have likely been delivered at a disciplinary meeting held just two days later.

48However, it is clear that the respondent did not intend to terminate the applicant’s employment at the December 24, 2012 meeting. The applicant was instead given a third disciplinary letter and a revised schedule providing the applicant with a significant, albeit slightly reduced, number of shifts for the winter of 2013. Thus, as of the start of the meeting on December 24, 2012, the respondent had not decided to terminate the applicant’s employment. Therefore, I accept the testimony of Mr. Northover that the respondent ultimately decided to dismiss the applicant based upon her conduct during the December 24, 2012, and not because the applicant was pregnant.

ORDER

49The Application is dismissed.