HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amber Lougheed
Applicant
-and-
Little Buddies Preschool Centre and Tammy Brochert
Respondents
DECISION
Adjudicator: Daniel Randazzo
Date: July 9, 2015
Citation: 2015 HRTO 909
Indexed as: Lougheed v. Little Buddies Preschool Centre
APPEARANCES
Amber Lougheed, Applicant
Shawn Weston, Representative
Little Buddies Preschool Centre and Tammy Brochert, Respondents
Anthony Leardi, Counsel
1This is an Application filed under section 34 of Part IV 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 (pregnancy) and family status and reprisal. In summary, the applicant alleges that the respondents discriminated against her by failing to accommodate her child care needs and by terminating her employment because she was pregnant.
2The hearing commenced on August 18, 2014, and continued on January 12, 2015. I heard from several witnesses, including the applicant, Amber Lougheed; the personal respondent, Tammy Brochert, who is the owner and operator of the respondent Little Buddies Preschool Centre ("Little Buddies"); and several current and former employees of Little Buddies.
EVIDENCE
Applicant's Testimony
3The applicant testified that she was hired by the respondents in April 2012 as a full-time early childhood educator. She testified that throughout her employment her performance reviews were above average and that she was a good and conscientious worker. The applicant testified that she had a young son who attended a different day care provider. The applicant was a single mother with full custody of her child and there were times when she needed to take time off to care for her son and times when circumstance would dictate that she would be required to bring her son to Little Buddies.
4The applicant testified that she was granted time off and also took time off to tend to her son. She also testified that Little Buddies allowed her to bring her son on field trips and to attend at the preschool.
5In January 2013 the applicant met with the personal respondent to discuss the possibility of the applicant having the same day off each week to attend to personal appointments such as hair and gym appointments and to spend time with her family. The day off was granted by the respondents. In May 2013 the applicant found out she was pregnant and advised the respondents at that time. The applicant testified that at the time she was nervous about telling the respondents about her pregnancy because there were three employees pregnant at the same time.
6At the beginning of June 2013 the applicant and the personal respondent met to discuss changes in the workplace and the applicant's employment. At that meeting the applicant was offered and accepted changes to her employment. The applicant testified that as a result of the changes, she believed she was working Tuesdays to Fridays with Mondays off, which was a similar arrangement to what she had before.
7Upon returning from a vacation in Las Vegas, the applicant learned that she no longer had Mondays off as she was now scheduled Mondays to Fridays. This upset the applicant a great deal. From June 19, 2013 to June 23, 2013 there was a series of heated and angry messages exchanged on Facebook between the applicant and the personal respondent. In the exchange the applicant advised the personal respondent that she needed Monday, June 23, 2013 off as she had a doctor's appointment. Although the personal respondent objected, the applicant was eventually able to take the Monday shift off and attend to her doctor's appointment.
8During the Facebook exchange the applicant expressed her displeasure with the working conditions of her employer and described her employer as unprofessional. The personal respondent addressed several performance issues including the applicant taking time off, arriving at work late and leaving early, not wearing her uniform and not being truthful. At the end of the exchange the personal respondent advised the applicant that if there was no improvement and if there were any further issues it would be cause for dismissal.
9The applicant testified that on June 25, 2015, she attended work and everything was seemingly fine. However, she was eventually called into the personal respondent's office and her employment was terminated. At this meeting she was handed four Employee Disciplinary Forms. Although she was told to sign the forms, she refused. An argument followed and the applicant claims that the personal respondent put her hands on her and shoved her towards the stairs. As a result the applicant attended at the police station and filed an Occurrence Report.
10The applicant testified that she believed she was being fired because of pregnancy-related doctor's appointments and because of her family life. The applicant testified that the termination caused her a great deal of stress and anxiety. She lost sleep, felt betrayed and was fired at a very vulnerable time. The applicant testified that she had just returned from a vacation where she had spent a great deal of money. Being fired caused her to borrow money from her grandparents to pay for her mortgage, her cell phone and groceries.
11In cross-examination the applicant acknowledged that the normal working hours at Little Buddies were 6:00 AM to 6:00 PM. However, in their efforts to accommodate the applicant's need to bring her son to and from his day care, she acknowledged that she was not required to start at 6:00 AM and her shifts ended before 6:00 PM. The applicant also acknowledged that her son was welcome at Little Buddies and would, subject to concerns with respect to Ministry ratios, be allowed to attend with her at work if needed.
12While the applicant considered herself to be an ideal employee who did nothing wrong, the applicant in cross-examination acknowledged she used her cell phone while at work contrary to her employer's prohibition against cell phone use during work time. The applicant also acknowledged in cross-examination that on June 6, 2015, she left early without permission.
Respondents' Evidence
13I heard from several former and current employees of Little Buddies, each of whom testified with respect to the employer's policies including the policies relating to uniforms and cell phone use. The current and former employees all testified that they had on at least one occasion and sometimes several, witnessed the applicant using her cell phone during working hours.
14The personal respondent testified on her own behalf and on behalf of Little Buddies. She is the principal operator/owner of Little Buddies, which was a sole proprietorship. The personal respondent testified that she had ongoing issues with the applicant for some time. She points to a February 2013 Employee Performance Review ("EPR") which details some of her concerns over the applicant's cell phone use. The personal respondent testified that on March 24, 2013, she sent the applicant a Facebook message which detailed many of her concerns, including the use of cell phones while working, leaving early, eating in the infant room, and taking time off for personal appointments. She testified that the cell phone use was an ongoing problem with the applicant and that it was a problem with only the applicant and not the other employees.
15The personal respondent testified that in June 2013, prior to the applicant going to Las Vegas, the applicant was offered and accepted a position that would see her taking over another employee's responsibilities. The personal respondent testified that the job was a full-time Monday to Friday position and that the applicant was advised of this and accepted the new position. Upon the applicant's return from Las Vegas, the applicant advised that she could not work the Monday, June 23, 2013 shift because she had a doctor's appointment. The personal respondent testified that it was not the fact that she could not work the shift that caused the problem but the fact that she did not seem to care to find a replacement and left it to the personal respondent to find someone to work the shift. The personal respondent testified that she was advised by the Ministry of Labour that, as a small employer, she was not required to accommodate an employee's doctor's appointments.
16The personal respondent testified that following the June 19 to June 23, 2013 Facebook exchange in which the applicant was warned that any further performance issues would be cause for termination, she discovered that on June 24, 2013, the applicant left early without permission, and did not clean up before leaving. The personal respondent testified that on the morning of June 25, 2013, she decided to terminate the applicant's employment. She testified that she called the Ministry of Labour that morning and was advised that if she wanted to terminate an employee she should document the employee's discipline.
17On June 25, 2013, the personal respondent brought the applicant to her office and presented her with four Employee Disciplinary Forms. The applicant had not seen the disciplinary forms prior to June 25, 2013. The first disciplinary form was dated May 7, 2013, and related to an occurrence of that date. The incident involved the applicant losing receipts from her daily float. The second was dated June 6, 2013, and refers to an occurrence on that date. The incident refers to the applicant leaving eight minutes early without permission. The third discipline form was dated June 22, 2013, and referred to an incident on that date. The incident involved the applicant using her cell phone while working and not wearing her uniform. The fourth discipline form was dated June 24, 2013, and refers to an incident on that date. The incident involved the applicant leaving one hour early and leaving the preschool in an unsatisfactory condition. A fifth Employee Disciplinary Form was also provided. This form is dated June 29 and 30, 2013, and relates to conduct on June 22 and 23, 2013. The incident is described as follows, "Employee was asked to work a shift and upsetting emails were sent instead of taking responsibilities to switch her shift with someone".
18The personal respondent testified that at the termination meeting the applicant became very angry and threw the disciplinary forms at her. Both of them raised their voices and were upset. However, the personal respondent denies pushing or shoving the applicant.
19The personal respondent testified that on September 22, 2013, three months after her discharge, the applicant posted a picture on Facebook of a child from Little Buddies. The picture had been taken by the applicant while she was still employed by Little Buddies. The personal respondent describes this as a serious breach of privacy and states that this would have resulted in the applicant's discharge if she was still employed.
20The applicant did not testify in reply. However, in her evidence in chief she denied receiving the March 2013 Facebook message in which the personal respondent detailed her concerns with respect to the applicant's work performance. The applicant also accused the personal respondent of altering the February 2013 EPR by adding information to the back after the applicant had read and signed it. The applicant indicated that the February 2013 EPR did not contain concerns with respect to the applicant's cell phone use during working hours.
ARGUMENT
Applicant
21The applicant argues that she was a good employee with good job performance reviews. In June 2013 she was offered a new position with full-time hours. Prior to starting the new position she went on a pre-planned vacation and when she returned from the vacation there was a group email advising the employees that everyone had to work their shifts. On June 22, 2013, she reviewed her schedule and discovered that she was required to work on June 23 at a time when she had an appointment to see her doctor. Her request to have June 23 off was a request to accommodate her pregnancy. The request was met with a very aggressive email response by the respondents. Although she was eventually granted the accommodation, the applicant was now facing dismissal.
22The applicant points to several reasons why I should doubt the respondents' justification for the discharge. While the respondents allege that the applicant was the only employee who used her cell phone during working hours, the applicant submits that the respondents' own evidence indicates the contrary. In particular, the applicant notes that the June 19, 2013 group message from the respondents states that "people" were using cell phones, which suggests that the issue was more widespread than just the applicant. The applicant also relies upon the February 1, 2013 EPR which rated her performance as good to excellent, which suggests that the performance issues alleged by the respondents were not as serious as they are now being presented. The applicant also notes that the personal respondent claimed that the applicant was on probation, but there is no evidence which supports this. In fact, the applicant submits that she was "needed" at Little Buddies, as evidenced by the fact that she was given a new position a few weeks before she was discharged. The applicant submits that the personal respondent was bothered or annoyed by the fact that she had to accommodate another pregnancy and time off request, and was offended by the applicant's request for accommodation. As a result, within 48 hours the applicant was discharged.
23The applicant also argues that she was disciplined or terminated because of family status. The applicant was a single parent with a young son. She attempted to arrange alternate care but was not always successful. In their June 23, 2013 Facebook exchange, the personal respondent says that she has been "way too accommodating". The applicant submits that this indicates that the need to accommodate the applicant's family status bothered the respondents.
24The applicant further argues that the action of termination was a reprisal. The applicant argues that the three elements necessary to find a reprisal are present. The applicant sought to claim a right under the Code by seeking time off to accommodate her pregnancy. There was an action, the applicant's termination, by the employer which was clearly adverse to the applicant. And the applicant submits that the evidence indicates that the employer intended the termination as retaliation for the applicant claiming her right to accommodation under the Code.
25The applicant is seeking damages for the losses arising out of the infringement including monetary compensation for the injury to her dignity, feelings and self-respect as well as her lost wages. She relies on Graham v. 3022366 Canada Ltd., 2011 HRTO 1470, in support of her claim for $20,000.00 in monetary compensation for the breach of her Code rights to be free from discrimination and for lost wages. The applicant requested that the total damage award, including both compensation for the injury to dignity and lost wages, be capped at $25,000.00.
Respondents
26The respondents argue that the obligation to accommodate a pregnant worker is not absolute. The corporate respondent Little Buddies is a small employer in a very highly regulated industry and therefore has very little flexibility to provide the accommodations requested.
27The respondents point out that on many occasions they granted the applicant's scheduling and time off requests to accommodate the applicant's child care needs. The respondents adjusted the applicant's hours of work, and allowed the applicant to bring her child to work. Notwithstanding these accommodations, the applicant still showed up late and left early.
28With respect to time off for doctor appointments, the respondents argue that these requests were always granted. It may have been difficult and frustrating for the respondents, but the requests were eventually granted. The problem arose when the applicant abused the requests or did not follow the rules on how to request and obtain time off.
29With respect to the termination, the respondents argue that they do not have to prove that they had cause to terminate the applicant. The question is whether the respondents were motivated by legal or legitimate grounds. The respondents point to the applicant's use of her cell phone during working hours. The applicant was fully aware of the no cell phone policy yet blatantly ignored this policy and was witnessed using her cell phone while working by the personal respondent and many other witnesses who testified. This is not a case in which the applicant says one thing and the respondents another, but a case in which the applicant says she did not use her cell phone and was never disciplined for it, and four other witnesses say she did know about the policy, she used her cell phone during working hours, and had been previously disciplined on at least three occasions for cell phone use.
30The respondents argue that the applicant's request for Mondays off was to allow the applicant to complete personal appointments such as hair or gym appointments. It was not a Code-related accommodation.
31The respondents argue that on June 23, 2013, the applicant was given a clear written warning from her employer. The applicant immediately afterwards, on June 24, 2013, left work early without permission and did not complete her work. This is a case of an employer having to deal with the poor work performance of an employee.
32With respect to the September 22, 2013 Facebook posting of a child at Little Buddies, the respondents argue that this is evidence that the applicant used her phone during work and is a post-termination incident which by itself would have justified the applicant's termination. The respondents further argue that the applicant would have, at most, worked an additional six months from the date of discharge as she would have left after giving birth.
Reply
33In reply, the applicant points out that the respondent did not put the evidence of the September 22, 2013 Facebook postings to the applicant during her cross examination and this evidence should be excluded under the rule in Browne v. Dunn.
DECISION
34For the reasons that follow, the Application is granted, in part. The law does not require that I find that the applicant's pregnancy was the sole or dominant reason for ending her employment. I simply need to decide whether her pregnancy was a factor in that decision See: Dominion Management v. Velenosi, (1997), 1997 CanLII 14482, 148 D.L.R. (4th) 575 (Ont. C.A.); Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605, 16 O.R. (3d) 290 (Div. Ct.).
35The relevant provisions of the Code are:
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, 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(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.
45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.
36It is well established that in an application alleging a violation of the Code, the applicant bears the onus of establishing a prima facie case of discrimination: Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 ("O'Malley") at para 28. In establishing discrimination, the ordinary civil standard of proof upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202.
37In the matter before me the applicant has made three allegations of discriminatory acts:
The failure of the respondents to accommodate the applicant's child care needs.
The failure of the respondents to accommodate the applicant's pregnancy.
The decision to terminate the applicant, which is alleged to have been influenced by the applicant's request for accommodation, both for family status and pregnancy, and also is alleged to have been a reprisal because the applicant had made accommodation requests.
1. Alleged failure of the respondents to accommodate the applicant's child care needs
38The applicant's evidence does not support a finding that the respondents did not accommodate her family status needs. The applicant's own evidence clearly establishes that the respondents had adjusted her hours of work to accommodate her need to drop her child off at day care at the commencement of the day and to pick her child up at the end of the day. The respondents were well aware that the applicant was a single mother with full custody of her only child. They granted her time off to allow her to tend to her child's needs, allowed her to bring her child to work when needed (subject to complying with Ministry ratios) and allowed her to bring her son on field trips.
39Although the June 23, 2013 Facebook exchange between applicant and the personal respondent demonstrates that the respondents were frustrated with the applicant's conduct as it related to her family status accommodation requests, these frustrations do not amount to a violation of the Code and were not refusals by the respondents to accommodate the family status needs of the applicant. The respondents were frustrated with the applicant's actions in not following rules of how to request time off and frustrated by the applicant's poor judgment in leaving work early without permission or notice. I note that the applicant acknowledged, for example, that she left work early on June 6, 2013 without permission and without advising her employer that she was leaving. This type of behaviour is not appropriate and not consistent with that of an employee who self describes as a good, conscientious employee.
40The evidence before me does not support a finding that the respondents breached the duty to accommodate the family status needs of the applicant.
2. Alleged failure of the respondents to accommodate the applicant's pregnancy
41From approximately March 2013 to May 2013, the applicant worked pursuant to a schedule which provided for every Monday off. The applicant requested, and was granted, Mondays off to allow the applicant to attend to her personal non-Code-related appointments. In June 2013, the applicant was offered and accepted a new position with the respondents which would require her to work on Mondays. The applicant claims that she was not, prior to her leaving on a vacation, aware that her new position would require her to work Mondays.
42While on vacation the new schedule was posted and, upon her return, the applicant discovered that she had been scheduled to work Monday June 23, 2013 – the same day as her doctors' appointments. She advised her employer on June 22, 2013 in a Facebook conversation that she would not be able to come in on Monday (June 23) as she had two very important medical appointments related to her pregnancy. There was a conversation exchange in which the personal respondent indicated that she believed that the applicant should have known about the change in Monday schedules, and the applicant denied any knowledge or understanding that she would now be required to work Mondays. Ultimately the applicant's request for accommodation was granted, she did not work on June 23, 2013, and was able to attend her at her doctors' appointments. Although the accommodation request was granted, it was not done so without a heated and often inappropriate exchange between the applicant and the personal respondent. Both parties launched a series of accusations against each other.
43The law regarding the duty to accommodate clearly establishes that all parties to the accommodation process have obligations. An individual seeking accommodation, for example, is responsible for initiating the process by stating the need for accommodation. The duty to accommodate is a cooperative duty and requires the applicant, who is seeking accommodation, to provide sufficient information to allow the respondents to understand the nature of the request. The duty to accommodate would require, at the least, the party seeking accommodation to act in a reasonable and cooperative manner. See, for example, Matthews v. Chrysler Canada Inc., 2011 HRTO 1939, and Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362.
44The applicant was surprised and upset that she now had to work Mondays. She gave the respondents less than 24 hours' notice that she could not come in for her shift on June 23, 2013. Her Facebook conversation suggests that she was worried about missing her doctors' appointments. Twenty-four hours' notice was not, for these respondents in these circumstances, sufficient notice to allow the respondents to replace the applicant. The personal respondent's frustration was evident in the words of her response. Although this type of a response by a respondent may in some circumstances give rise to a finding of a violation of the respondent's Code obligations to accommodate, in the matter before me, where there was less than 24 hours' notice and the applicant engaged in a cyber-argument with the personal respondent, it cannot be said that the applicant has acted reasonably and cooperatively. Furthermore, as noted above, the applicant ultimately obtained the accommodation requested. In these circumstances, I find that the respondents did not discriminate against the applicant by failing to accommodate the applicant's pregnancy.
3. The applicant's termination
45In early June 2013 the applicant was offered and accepted a new position with the respondents which required the applicant to work full-time hours Monday to Friday. The applicant understood that her previous schedule, which provided for Mondays off, would be maintained. Upon her return from her vacation she came to learn that she was scheduled to work Monday, June 23, 2013. She advised the respondents that she was unable to work that day because she had to attend doctors' appointments relating to her pregnancy. Following this request there was a Facebook conversation between the applicant and the personal respondent. In this conversation, the applicant stated, "Please try to be a little more understanding as all 3 of us girls are going to be needing to attend doctor's appointments, going through this very special times in our lives." At time there were, including the applicant, three employees who were pregnant. The personal respondent's response to the applicant included the following statements,
Can't work Mondays can't work past 5:45 can't work sat mornings. We have been way too accommodating I am not able to run the daycare this way anymore people need to work what is needed and if they can't work what is needed then why are you working here…I altered this position just for you so you can keep your scheduled appointments that you may need now being pregnant and also keep your benefits. I see now that I am trying way too hard to accommodate you and realistically, I cannot accommodate any other employees like this which leads me to believe something is wrong here. If Whitney or jess come to me and asked me for the same respect I have given to you I cannot do it. When I mentioned days off to all you pregnant girls nothing was done with it because it is not possible.
46In a later exchange, the personal respondent wrote,
We will be putting something in writing in regards to our conversation in that you will be following our company policies and procedures and if we find that no improvement is being made and we have any other issues it will be cause for dismissal. This is the standard procedure for any business. I hope we can expect you tomorrow night and that everything works out for the best.
47As indicated above, the applicant was ultimately granted June 23 off to attend at her pregnancy-related doctors' appointments. She returned to work on June 24, 2013. The personal respondent contends that, while at work on the June 24, the applicant left one hour early without permission and without completing her tasks for the shift.
48By June 25, 2013, the respondents had decided to terminate the applicant's employment. The respondents then decided to document everything the applicant had done wrong in the last two months – missing receipts from May 7, leaving early on June 6, use of cell phone and no uniform on June 22 and leaving early on June 24. These Disciplinary Forms were not provided to the applicant at the time of the incidents. The respondents also relied on a Disciplinary Form dated June 29 and 30, 2013 (four to five days after the applicant had been terminated) citing the Facebook exchange of June 22 and 23, 2013. The personal respondent noted on the June 29/30 Disciplinary Form: "After several emails and trying to resolve the shift issue I gave in a [sic] found someone to work for her and switch."
49The June 22 to 23 Facebook exchange was heated and angry with the personal respondent clearly stating her displeasure and anger over having to accommodate the applicant for her many Code and non-Code related requests for time off. The personal respondent in very certain terms linked the applicant's request for a Code-related accommodation to the applicant's perceived attitude towards work and to potential future discipline. I note that in her June 23 Facebook post, the personal respondent refers to the applicant's current family status accommodation stating, "can't work past 5:45". This accommodation was in place to assist the applicant in her child care needs.
50Within 72 hours of the applicant making a request for accommodation for her pregnancy, the respondents had compiled a list of disciplinary offences and then terminated the applicant's employment. Five days after terminating the applicant, the respondents then wrote the applicant another Disciplinary Form. I find that this final Disciplinary Form demonstrates that the applicant's request for an accommodation for her pregnancy was in the mind of the respondents and influenced the decision to terminate the applicant's employment. The Disciplinary Form links the reasons for the termination to the request for accommodation of June 23.
51This is not a case in which the respondents are simply the victim of unfortunate timing. The personal respondent in her Facebook exchange linked the applicant's request for accommodation to performance and discipline and then terminated the applicant, relying on historical wrongdoing and relying on the very request for accommodation which gave rise to the inappropriate Facebook exchange to which the personal respondent herself was a party. I find that the applicant's pregnancy and her request for an accommodation due to her pregnancy was a factor in the respondents' decision to terminate the applicant's employment.
52For the reasons set out above, I am of the view that the applicant has made out a prima facie case of discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 10(2) and 9 of the Code, and that the respondents have failed to prove a non-discriminatory explanation for the precipitous termination of the applicant's employment. I find that, on the balance of probabilities, the applicant's pregnancy was a factor, although not the only factor, in the respondents' decision to terminate her employment.
53I also find that the decision to terminate was also a reprisal for the applicant seeking an accommodation for her pregnancy. The personal respondent in her Facebook exchange linked the applicant's request for accommodation to her performance and potential discharge and then promptly discharged the applicant at the first opportunity within 72 hours of making the accommodation request. This in my view is a sufficient basis upon which I can infer that the respondents intended to engage in reprisal against the applicant for seeking to claim her rights under the Code, in violation of ss. 8 and 9 of the Code.
54I do not find that the decision to terminate the applicant's employment was influenced by the fact that the applicant had sought and was provided an accommodation with respect to her family status. Although the accommodation is referenced in the June 22, 2013 Facebook exchange by the personal respondent, the applicant's own evidence, as referenced above, demonstrates that the accommodation had been in place for some time and that she had been granted shift changes, time off and her son had been allowed to attend at her place of employment.
REMEDY
55Having found that the respondents violated the Code by terminating the applicant's employment in contravention of the Code I must now fashion a remedy. The applicant claimed lost wages of $11,654.00, which represents six months of wages. The applicant testified that she had earned $240.00 in the months of July and August 2013.
56As noted above the applicant's conduct was also a contributing factor to her termination. Furthermore the applicant's post-termination conduct of posting a picture of a child from Little Buddies is also a factor in determining the appropriate period of wage loss. The applicant argued that the evidence of the September 22, 2013 posting should not be given any weight as it was never put to the applicant in cross-examination. I note that the applicant did not object to the evidence being admitted and had an opportunity to respond to the evidence in her reply evidence but chose not to do so. Accordingly, I find that if the discriminatory termination had not occurred on June 25, 2013, the applicant would have been terminated in any event for non-Code related reasons as a consequence of the September 22, 2013 posting. I therefore find that the applicant is entitled to three months of lost wages less the amounts earned during that period. This amount is equivalent to $5,587.00.
57The applicant has also claimed $20,000.00 in monetary compensation for the injury to her dignity, feelings and self-respect. The applicant testified that the discharge caused her anxiety and stress resulting in a loss of sleep. The discharge put a strain on relationships with her former co-workers who at the time were her friends.
58In reviewing decisions of the Tribunal where pregnancy was either a factor or the sole reason to terminate employment, I note that to date awards for injury to dignity, feelings and self-respect have generally ranged between $10,000.00 and $20,000.00. See for example: Bickell v. The Country Grill, 2011 HRTO 1333 ($15,000.00), Graham v 3022366 Canada Ltd., 2011 HRTO 1470 ($20,000.00), Maciel v. Fashion Coiffures, 2009 HRTO 1804 ($15,000.00), Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758 ($10,000.00), Guay v. 1481979 Ontario, 2010 HRTO 1563 ($10,000.00), Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 ($12,500.00), and Korkola v. Maid Day! Maid Day! Inc., 2013 HRTO 525 ($13,000.00).
59In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal noted at paragraphs 53-54 that:
… injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
…Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
60In the matter before me, I have found that the applicant's pregnancy was a factor, but not the only factor, that influenced the respondents' decision to terminate the applicant's employment. The applicant's own conduct also played a role. In the circumstances of this case I find it appropriate to award the applicant $10,000.00 in monetary compensation for injury to dignity, feelings and self-respect.
61Given the nature and contents of the Facebook exchange and the personal respondent's comments that a small business does not have to accommodate an employee's doctor's appointments, leads me to conclude that the respondents would benefit from training on their obligations under the Code. I order that, within 30 days of the date of this Decision, the personal respondent and any other managerial staff of Little Buddies are to complete the Ontario Human Rights Commission's basic on-line training "Human Rights 101" (available at www.ohrc.on.ca/hr101). The respondents are also directed to confirm in writing to the applicant within 60 days of this Decision that they have complied with this Order regarding training.
ORDER
62The Application is granted in part and I make the following Orders:
The respondents, on a joint and several basis, are to pay the applicant $5,587.00 as compensation for lost income, plus pre-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, at a rate of 1.3% from June 25, 2013, the date following the applicant's last shift, to the date of this Decision. The respondents are to pay this within 30 days of the date of this Decision. If they fail to do so, then post-judgment interest at the rate of 2% shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date.
The respondents, on a joint and several basis, are to pay the applicant $10,000.00 as compensation for injury to dignity, feelings, and self-respect, plus prejudgment interest in accordance with the Courts of Justice Act at a rate of 1.3% from June 25, 2013, the date following the applicant's last shift, to the date of this Decision. The respondents are to pay this within 30 days of the date of this Decision. If they fail to do so, then post-judgment interest at the rate of 2% shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date;
The personal respondent and any other managerial staff of the Little Buddies Pre-School Centre are to complete the Ontario Human Rights Commission's basic on-line training "Human Rights 101" (available at www.ohrc.on.ca/hr101) within 30 days of the date of this Decision. The respondents are also directed to confirm in writing to the applicant within 60 days of this Decision that they have complied with this Order regarding training.
Dated at Toronto, this 9th day of July, 2015.
"Signed by"
Daniel Randazzo
Member