Abrams v. Kupar, 2016 HRTO 1082

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dee Abrams

Applicant

-and-

Dirk Kupar

Respondent

DECISION

Adjudicator: Naomi Overend Date: August 12, 2016 Citation: 2016 HRTO 1082 Indexed as: Abrams v. Kupar

APPEARANCES

Dee Abrams, Applicant Brenda Culbert, Counsel

Dirk Kupar, Respondent Self-represented

Introduction

1The applicant, Dee Abrams, alleges that she was discriminated against on the basis of pregnancy when her employment with the respondent was terminated early in her probationary period. She filed this Application alleging discrimination in employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent denies that the applicant’s pregnancy was a factor in his decision, but states that her employment was terminated early in the applicant’s probationary period because it quickly became apparent that she was not suited to the job for which she had been hired. For the reasons set out below, I accept the respondent’s explanation and, as such, the Application is dismissed.

decision and analysis

Background

3The applicant was hired by Truck-Right Data Management Inc. (“Truck-Right”). The respondent, Dirk Kupar, is president of Truck-Right, one of three related companies owned by him and his spouse. Kupar Enterprises Inc., the primary company, leases drivers to trucking companies. It employs approximately 250 drivers.

4The respondent explained that the trucking industry is heavily regulated and that there are multiple pages of documentation to complete for each truck driver hired. Initially, Kupar Enterprises used generic software to complete the documentation, but realized that there was a need for specialized software to manage this process.

5Truck-Right was set up in 2013 in response to this need. It has developed, or is in the process of developing, three software products (Truckright, D.A.D. and Driver Locker) relating to human resources issues in the trucking industry. The respondent testified that he has very little technical expertise. He hired a team of four software developers and a team lead, Ekem Dick, to create these products. They are being marketed to the trucking industry as a whole.

6In 2014, Truck-Right was looking for a Software Development Manager to oversee the launch of one of the products. Prior to that, Truck-Right had contracted out the management of the process, but with the impending launch, decided that the management needed to be brought in-house.

7The applicant applied for the job on April 24, 2014. She was interviewed and offered the position on May 1, 2014. On May 5, 2014, she accepted the job and signed a contract with Truck-Right. Her actual employment commenced on May 14, 2014. On May 23, 2014, after working eight and a half days, her employment was terminated by the respondent pursuant to the probationary terms set out in the contract.

The Applicant’s Pregnancy

8The applicant was in her third month of pregnancy when she was hired. She disclosed this to the respondent on May 5, 2014, when they met to discuss the offer. Whether she disclosed this of her own volition (as the applicant says) or in response to a question about whether she would be taking time off (as the respondent asserts) is not material. Both parties are in agreement that she asked whether this would be an issue and the respondent advised her he would have to speak to his partner/wife about this.

9The applicant states that the respondent came back after five minutes and said that, while it was not optimal, since the applicant would need to take time off for doctors’ appointments, he supported families. In contrast, the respondent states he consulted with his wife and reported back to the applicant that her pregnancy was not a concern. In any event, the job offer was not rescinded and the applicant signed her employment contract that day.

10The respondent called his Human Resources Manager from Kupar Enterprises, who testified that she told the respondent about her pregnancy during her probationary period, and he was very supportive of her. Likewise, Ekem Dick, the Team Lead at Truck-Right (“team lead”), testified that the company was baby-friendly (“we like babies”) and that the team had just recently celebrated the birth by one of the software developers.

11It was put to the respondent in cross-examination that he did not invest the time in helping the applicant adjust to the job because she was going to go on maternity leave six months after she started. He strenuously objected to this, saying that the applicant would come back after her leave. He also said that the person he hired to replace the applicant told him at the time of hire that he could only work for a year because he was moving to the United States. He testified that the decision to hire the applicant, and her successor, was based on the opinion at the time that they could do the job.

The Applicant’s Qualifications

12The applicant testified that she started off her professional career as a software developer in 2000. Between the years of 2004 to 2006, she made the transition from developer to management. From 2004 to 2008, she worked as a Project Manager and Verification Team Leader for Nortel, and from 2008 to 2013, she was employed as Project Manager and Test Manager for IBM Canada.

13The applicant testified that her project manager qualifications encompassed, but were broader than, the qualifications required for a software development manager, the position for which the respondent was advertising. She submitted a number of documents at the hearing that indicate she successfully handled large and complex jobs for high-profile clients during her time with Nortel and IBM. She felt she was amply qualified for the job at Truck Right.

14For his part, the respondent agreed that the applicant appeared to be qualified for the job. He and the team lead testified that they had offered the position to other qualified candidates, but that they had declined. In any event, the respondent took the position that when he offered the job to the applicant he believed she would be able to do it.

The Respondent’s Concerns

15The respondent and team lead testified that shortly after the applicant commenced her employment, they independently started having concerns about her work. The respondent stated that he has very little technical expertise, but that the documents she submitted to him seemed to be “simplistic” and “lacking in energy.” It appeared to him that the applicant did not seem to be a “leader,” which is what he required, but acted more like a co-worker on the team.

16The respondent consulted with the team lead in the second week of the applicant’s employment, who expressed similar concerns. They decided they needed someone else. The applicant’s employment was terminated on the Friday of the second week.

17For his part, the team lead testified that he quickly came to the opinion that the applicant was not up to the technical part of the job, which involved “prioritizing the work of the software developers.” By way of example, he testified that one of the tasks the applicant was expected to do was update a document entitled “Driver Locker Requirements and Processes.” He met with applicant to discuss her work on this document. From her questions, and her responses to his answers, he came to the conclusion that the applicant did not have an appropriate understanding of the document or ability to manage the project. He testified that she asked him to type out what he was telling her, which he did in a skeletal fashion. He subsequently discovered that she submitted the document he prepared to the respondent as something she had done in collaboration with him.

18The applicant disagrees with the respondent’s assessment of her abilities, which she thinks were too hastily made. For example, the Driver Locker Requirements and Processes document was something on which she worked on the second day of her employment. She testified that she received very little feedback (and what feedback she received was positive) and no opportunity to address perceived deficiencies. She also said there was insufficient coaching.

19The respondent and team lead do not disagree that they did not give the applicant much feedback. The respondent states that at the termination meeting he gave her a few examples of the concerns raised. He said he told her that although he did not have a strong knowledge of Excel, even with his limited knowledge it seemed to him that the translation table produced by the applicant was not useful. He said it made him sick to let the applicant go, and that he did not want to hurt her feelings by criticizing her work.

20Both the respondent and team lead testified that there were very specific requirements arising from the fact that this was a small start-up company just about to launch its first product. They needed someone who could hit the ground running. It was their expectation that they would have to explain the requirements of the trucking industry to whoever they hired as manager, but that this person would have the software and management expertise from the get go. They did not have time to “develop” the person into the manager they needed by feedback and prolonged evaluation. They both testified that the person who was hired to replace the applicant had these skills.

Analysis

21Section 5(1) of the Code prohibits discrimination on the basis of sex. Section 10(2) of the Code states:

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.

22In order to demonstrate that the applicant was discriminated against on the basis of pregnancy, she must establish that her pregnancy was a factor in the respondent’s decision to terminate her employment during her probationary period. The applicant submits that I can infer that her pregnancy was a factor because:

1. The respondent expressed some reservations about the time she would be taking off for medical appointments related to her pregnancy when he hired the applicant.
2. The applicant’s job performance did not justify the precipitous termination of her employment after less than nine days on the job.

23While it is true that the respondent did not immediately tell the applicant that her pregnancy was no concern when he first learned of it, after a short period of consultation with his wife (and co-owner), he did express support for her and continued with the job offer. The fact that he may have said it was not optimal that she would be taking time off for medical appointments is not germane, since there is no evidence that in the brief period the applicant was there, she actually took any time off work (related to her pregnancy or otherwise). The applicant acknowledged that she did not hear the respondent or other employees express any discriminatory concerns during her brief employment.

24I am not prepared to give any weight to the respondent’s evidence that he treated his two pregnant employees (i.e., his human resources manager and one of his software developers) well. These two employees were in markedly different situations than the applicant. Indeed, the Tribunal has almost no information about the circumstances of the software developer who more recently had a baby.

25Even in the absence of a reference (direct or otherwise) to the applicant’s pregnancy, she may have been able to establish that her pregnancy was a factor if the evidence had supported her assertion that the termination was suspicious, and the reasons given for it mere pretext.

26The applicant’s evidence was that she was highly qualified for the position she took on and the respondent had failed to give her any warning that her job performance was in any way not up to standard. This evidence is sufficient to require an inquiry into the respondent’s explanation for the job termination.

27I find that the respondent has provided a credible, non-discriminatory explanation for his actions. The applicant did not challenge the respondent’s or the team lead’s evidence that they were operating under very tight deadlines, with a very small team, and that the applicant was not able to assume the responsibilities of the manager position from the outset.

28The applicant submits that the respondent simply did not expend the time or effort to provide the necessary feedback so she could grow into the position because she was going off on leave within six months of starting. The difficulty with this position is that it fails to acknowledge the respondent’s evidence that he needed a software development manager who was able to do the job immediately.

29It may be true that the applicant could have “grown into” the job. It is not, however, necessary for me to determine whether the respondent and his team lead were unfair in their assessment that the applicant lacked the technical and management skills necessary for the position. Fair or otherwise, I find that the evidence supports the respondent’s position that the decision was made for non-discriminatory reasons.

30The applicant bears the onus of proving, on a balance of probabilities, that she experienced differential treatment based on a ground of discrimination enumerated in the Code. The applicant has failed to establish that her pregnancy was a factor in the respondent’s decision to terminate her employment. She has, therefore, failed to establish discrimination in employment on a balance of probabilities.

order

31The Application is dismissed.