HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Sally Rowley
Applicant
-and-
1145678 Ontario Limited and Stuart MacDonald
Respondent
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DECISION
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Adjudicator: Alison Renton
Indexed as: Rowley v. 1145678 Ontario Limited
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APPEARANCES
Sally Rowley, Applicant
Self-represented
1145678 Ontario Limited, Respondent
Christopher Herrmann, Representative
Stuart MacDonald, Respondent
Self-represented
1The applicant filed her Application on February 25, 2014 alleging discrimination with respect to employment because of family status contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Within the body of her Application, the applicant discloses that she has a special needs child and alleges that she was terminated because of her responsibilities towards her child.
2Responses were filed by both respondents. In both, the respondents assert that the applicant was terminated for poor performance, including too much social interaction within the car dealership, being warned about extended lunches, and not staying at her desk and focussing on her job.
3A hearing was held on March 23, 2015. The Tribunal heard evidence from the applicant, Julie White, controller with the corporate respondent, Chris Herrmann, general manager with the corporate respondent, and the personal respondent, Stuart MacDonald, who is general service manager with the corporate respondent.
4I have carefully reviewed the Application and the Responses that were filed, as well as the evidence that the witnesses gave at the hearing. For the reasons set out below, the Application is dismissed.
The evidence
5I am only setting out the evidence that is relevant to my decision to dismiss the Application. I do not find the evidence that I heard pertaining to the applicant’s alleged bonus, her mitigation efforts, and other post-termination evidence to be relevant and accordingly it is not reproduced in this Decision.
6The corporate respondent operates a car dealership in the City of Hamilton. The applicant was employed as a service coordinator from January 6, 2014 until February 14, 2014 when she was terminated. She reported to the personal respondent. The applicant’s job duties included booking service appointments for customers, by telephone, email, or in-person at her desk.
7The applicant’s position, on her Application, and during her evidence at the hearing, is that she was terminated, at least in part, because she took personal calls in relation to her child and was away from work a couple of times because of her child, which amounts to discrimination on the basis of family status.
8The respondents deny that the applicant was terminated because of her son or because she took personal calls and/or because she was away from work on a couple of occasions. Mr. Herrmann denied telling the applicant these reasons. The respondents’ position, in their Responses and in the testimony of their witnesses, is that the applicant was terminated for “over socializing”, not being at her position and performing her job, and returning late from lunch on more than one occasion.
9On February 14, 2014, the personal respondent asked to see the applicant before she left for the day. When she reported to his office, he told her that she was being relieved from her employment. According to the applicant, she asked the reason why and the personal respondent told her that he did not need to provide a reason as she had not been an employee for three months. The termination letter, which was entered as an exhibit, confirms that the applicant is terminated, but does not set out a reason for the termination. The Record of Employment, which was also filed as an exhibit, states code “M” with the explanation “dismissal/termination within probationary period”.
10The applicant persisted in obtaining a reason for her termination, telling the personal respondent that she had made some significant financial decisions to start full time employment with the corporate respondent. The personal respondent finally told the applicant that he told her to stop talking to certain people at the dealership, but that she did not stop.
11The applicant did not ask the personal respondent any questions in his cross-examination about her family status being the reason for her termination. She told the Tribunal that she did not need to because the personal respondent did not tell her that her termination was related to her personal telephone calls or absences from work.
12The applicant told the personal respondent that she did not accept his reason for her termination and demanded to see Mr. Herrmann. She went into Mr. Herrmann’s office, told him that she had given up two jobs to work for the corporate respondent, and that she did not understand the reasons for her termination.
13Mr. Herrmann, she alleged, told her that she was terminated for taking personal calls at work, being late returning for lunch, socializing with the parts manager, and missing some days of work. He told her that she had received warnings about her conduct and he was not sure that he could be a personal reference for her.
14The applicant testified that she had received some personal telephone calls about her son, including when he was sick with a high fever and throwing up, from the school, hospital and therapist. She testified that she had taken some time off work when her son was sick and also when his school was closed because of inclement weather. She agreed in cross-examination that the personal respondent authorized her absences from work to attend to her son.
15Mr. Herrmann testified that the personal respondent wanted to terminate the applicant because of her socializing, regularly leaving her post, and her lack of performance in her role, and that he upheld the personal respondent’s decision to do so. He specifically denied, in his testimony, telling the applicant that she was terminated for taking personal telephone calls or because she missed some days of work and he denied that those were reasons for which she was terminated.
16Mr. Herrmann testified that he told the applicant that she was terminated because of her socializing, lack of performance in her role, and extended lunches. He testified that the applicant did tell him that she had given up several positions to work with the corporate respondent, but this was new information as the applicant’s résumé did not reflect this assertion. A copy of the applicant’s résumé was entered as an exhibit. Mr. Herrmann testified that he apologized to the applicant that the position did not work out. He testified that he was concerned that this was happening within her first 30 days of employment and wondered what the applicant’s performance would be like after 4 to 6 months.
17The parties agreed, during their evidence, that Mr. Herrmann was not aware that the applicant had a special needs child. The applicant testified that the personal respondent was aware of her son, about which the personal respondent agreed. The applicant agreed during cross-examination that she had not told Mr. Herrmann about her son, stated when Mr. Herrmann cross-examined her, “I’m supposed to open up my life to you, no”, and testified during her cross-examination with the personal respondent that she would have told Mr. Herrmann about her son if she needed to. The personal respondent testified that he did not tell Mr. Herrmann about the applicant’s child. Mr. Herrmann testified that he was not aware until he received a copy of the Application.
18The personal respondent testified that the applicant talked to him about her son, and that he permitted her to leave work early on two occasions in relation to issues pertaining to her son. He testified that he had no knowledge of whether the applicant received personal calls at work as he did not work beside her and no one screened her telephone calls.
19In addressing the reasons for her termination, as set out in the respondents’ Responses, the applicant testified that she worked in the middle of office politics between the service manager and the parts manager and had been warned not to speak with the parts manager. It was unclear from whom she had received these warnings. This, she claimed, was difficult because it was part of her job to speak with different managers and was not socializing.
20She admitted in her testimony that there were times she was not at her desk. In cross-examination with the personal respondent, she agreed that the main part of her job was to be at her desk to receive customers who wanted to book an appointment. She understood that someone needed to be at her desk to service clients, but that she went into other departments to obtain information about clients, rather than calling the department. She explained that sometimes this was because she was addressing a conflict about a client and did not want to be overheard. In response to being told that numerous times her name would be paged across the dealership because it was not known where she was, and she was not just going to the parts department, but also the accounting and sales departments, she replied, “Holy Jeez, we are talking about a dealership and people buying new vehicles or upselling people and I needed to speak to sales people because of what a customer told me and there is no reason why I can’t communicate with others in the dealership”.
21In examination-in-chief, she testified about leaving her desk after a service advisor approached her in an unacceptable manner and “freaked out” on her. After this occurred, she went to speak with one of the human resources representatives about the advisor’s conduct. Ms. White testified that she did not see the applicant on that occasion. The applicant testified that she then went to the cafeteria to text the personal respondent and was away from her desk.
22Also in examination-in-chief, she admitted to returning to work late once after going for lunch with the parts manager. She explained that she was late because the parts manager drove her. In cross-examination, she vigorously disagreed that this happened more than once. She made it clear in her testimony that she disagreed with any direction from the respondents not to communicate with or lunch with the parts manager and commented, “since when does any job dictate who to go out for lunch with?” and challenged why the respondents did not want her to go to lunch with the parts manager.
23The personal respondent testified that the applicant was late returning from lunch on several occasions. The first time she was late by 30 minutes and the second time by 15 minutes. He denied telling the applicant not to communicate with the parts manager, but instead told her to keep the conversations short as the parts manager is “a bit of a talker”.
24Julie White testified that on several occasions the applicant would come into the accounting department, sit down, and have non-work related conversations with the department’s staff. In cross-examination, she disagreed that this happened only once. When the applicant would not respond to Ms. White’s direction to return to her department, Ms. White started calling the personal respondent to have the applicant return to her department. Ms. White also received calls from reception in search of the applicant, asking if she was in the accounting department. Ms. White observed her in showroom sitting and talking with sales persons about non-work related topics, and in the lunchroom outside of breaks or lunch texting. Ms. White would direct the applicant back to her department and warned her that if she did not return to work, she would call the personal respondent. She never advised Ms. White about a confrontation with a service advisor.
25The personal respondent testified about the applicant not remaining at her post. Sometimes this was reported to him by service advisors and the receptionist, as well as Ms. White. Sometimes he would have to physically search about the dealership to find the applicant. He testified that her absence from her post did not improve customer satisfaction. In some customer surveys, the customers indicated that it took a long time to get an appointment. He did not file copies of the customer surveys or bring them to the hearing. When the applicant cross-examined him, the personal respondent conceded that a third party was providing some of the services the applicant did when she commenced employment which could have impacted the customer surveys.
26On February 14, 2014, during her discussion with Mr. Herrmann, the applicant was emotional, in tears, and could not speak. On her Application, the applicant stated that Mr. Herrmann told her that she could use him as a reference. During the hearing, she testified that he told her that he was not sure that he could be a personal reference for her. The applicant left his office. Mr. Herrmann did not testify about this point and he was not asked any questions in cross-examination about it.
27The applicant was very upset about being terminated, which impacted upon her ability to find other employment, her general well-being, her relationship with her family, particularly her son, and recreational and educational plans she had for her family.
the law
28Sections 5(1), 9, and 10(1)(a), definition of family status, are the relevant sections in determining this Application. They state:
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.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
10(1). In Part I and in this Part,
“family status” means the status of being in a parent and child relationship.
analysis
29It is well established in human rights law that a protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason. See Macan v. Strongco, 2013 HRTO 841 at para. 100; Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC); McLean v. DY 4 Systems, 2010 HRTO 1107 at para. 62; and Dominion Management v. Velenosi, 1997 CanLII 11482 (ON CA).
30The initial evidentiary burden is on the applicant to establish on a balance of probabilities that a prima facie case of discrimination exists. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, and Peel Law Association v. Pieters, 2013 ONCA 396 at para. 56. A prima facie case is described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent.
31Upon the presentation of a prima facie case, the evidentiary burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence to demonstrate on a balance of probabilities that the applicant’s allegations do not amount to discrimination. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground.
32The Tribunal has consistently held that an applicant must prove his or her allegations against a respondent on a balance of probabilities and that to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. See F.H. v. McDougall, 2008 SCC 53 at para. 46. The Court held that courts must “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”, at para. 58. A balance of probabilities means that it is more likely than not a violation has occurred or a “50% plus one” probability. See Shah v. George Brown College, 2009 HRO 920 at para. 23.
33Further, I am guided by the principles from the oft-cited case of Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C. C.A.), in assessing the credibility of witnesses. At para. 357, the Court held:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour 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 a witness in such a case must be its harmony with the preponderance of the probabilities where a practical and informed personal would readily recognize is reasonable in that place and in those conditions.
34The issue that I have to determine is whether there was a discriminatory reason or discriminatory factor for the applicant’s termination, contrary to the Code. The applicant asserts that her family status, the parent of a special needs child, was the reason for the applicant’s termination or a factor in it. My role is not to determine whether or not it was fair or just for the respondents to have terminated the applicant. The Tribunal has stated in many cases that whether or not a situation is unfair is not within its jurisdiction.
35While the applicant points to her absences from work and receipt of personal telephone calls as reasons, at least in part, for her termination, I find that the applicant has not been able to prove that her family status was the reason for, or a factor in, her termination.
36I accept the uncontradicted evidence that the personal respondent told the applicant that she was terminated for reasons other than personal telephone calls and leaving work because of her son. The applicant’s position is that the personal respondent did not tell her that she was terminated because of her absences from work or personal telephone calls. She made this point clear when the Tribunal asked if she wanted to ask questions to the personal respondent during his cross-examination about these two issues. Her position, which was consistent with her testimony, is that Mr. Herrmann told her that part of the reason for her termination was because she was taking personal telephone calls and because she was absent for work on other occasions.
37In light of the conflicting testimony of both the applicant and Mr. Herrmann, this Application turns entirely on an assessment of whether the applicant has met her onus establishing that Mr. Herrmann told her that she was terminated for taking personal telephone calls and/or for being absent from work. The applicant asserts that this was said and Mr. Herrmann denies that he said this.
38Both the applicant and Mr. Herrmann were consistent in their respective testimony and both had an equal interest in maintaining their respective version of events. Both the applicant and Mr. Herrmann were able to describe their interactions on February 14, 2014. However, they diverge on this key point – whether or not Mr. Herrmann told the applicant that her termination was also based upon her personal telephone calls and her absences from work due to her son or otherwise. At the end of the day, I prefer the evidence of Mr. Herrmann on this point over the evidence of the applicant based upon a preponderance of probabilities.
39The applicant did not challenge the respondents’ position, nor Mr. Herrmann’s evidence, that he did not know that the applicant had a special needs child until the Application was filed. The applicant admitted that she did not tell Mr. Herrmann this information while she was employed. The applicant did not present any evidence that Mr. Herrmann learned about her special needs child from another source, such as the personal respondent. The applicant did not ask the personal respondent during his cross-examination whether he told Mr. Herrmann about the applicant’s child. By itself, Mr. Herrmann not knowing that the applicant had a special needs child as of February 14, 2014 would undermine the applicant’s allegation that she was terminated because of her family status of having a special needs child.
40The applicant has not been able to prove that Mr. Herrmann knew that she was receiving telephone calls in relation to her child, special needs or not, or was taking time off work to attend to her child. She has not been able to prove that Mr. Herrmann was aware that she was receiving personal telephone calls and taking time off work, even if he was not aware that they were related to her child, or that these were factors in deciding to terminate her.
41Mr. Herrmann denied, while the applicant was cross-examining him, that he told her that she was terminated for taking personal telephone calls, was not aware of the applicant wanting to leave work because of her son and suggested that questions about approvals to leave work should have been directed to the personal respondent, rather than him.
42Since the applicant’s position involved significant telephone work in her role of service coordinator, it would be expected that the applicant was on the telephone a significant portion of her work day. The applicant did not address or challenge the personal respondent’s evidence that no one screened her telephone calls. Her evidence was vague about the number of personal telephone calls that she received at work, and whether she received them on the corporate respondent’s telephone or on her personal call phone. Her evidence was vague about when she received the calls. I find it more probable than not that Mr. Herrmann did not tell the applicant that she was being terminated for receiving personal telephone calls.
43Similarly, with respect to the applicant taking time off work, I find that it is more probable than not that Mr. Herrmann did not mention this as a reason for the applicant’s termination. The applicant and the personal respondent both testified that the personal respondent authorized her absences on the two occasions that she was absent from work in relation to her son. It is unclear whether or not the applicant was absent for two whole or partial days, but the evidence is that the personal respondent knew the reasons why she was not at work and authorized those absences.
44The decision to terminate the applicant was made by the personal respondent. Mr. Herrmann testified that he was upholding the personal respondent’s decision to terminate the applicant. The applicant did not challenge this evidence and did not assert that it was instead Mr. Herrmann’s decision whether or not she was terminated. The evidence is that the applicant spoke with Mr. Herrmann after the personal respondent told her that she was terminated.
45The respondents have presented a reasonable explanation as to why the applicant was terminated, and had three witnesses who testified those reasons, including the applicant not being at her post, socializing in other departments and returning late from lunch at least twice. The applicant admitted to each of these, although in her testimony she was sure that she returned late from lunch only once not twice. Furthermore, she provided explanations for not being at her post and for conversing with other staff, including issues with a service advisor, and obtaining information about clients and customers from other staff in-person for privacy and other reasons.
46It is clear that the applicant disagrees not only with the reasons that were provided to her about her termination, but also with management’s directions given to her within the workplace. However, at the end of the day I am not satisfied that the applicant has met her onus of establishing a prima facie case of discrimination on a balance of probabilities that a violation of the Code occurred. Accordingly, the Application is dismissed.
Dated at Toronto, this 11^th^ day of June, 2015.
“Signed By”
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Alison Renton
Vice-chair