Girard v. Mary-Am Corporation, 2016 HRTO 1614

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie-Eve Girard Applicant

-and-

Mary-Am Corporation, Mary-Am Hospitality Corp. and Maryam Maids Inc. Respondents

DECISION

Adjudicator: Josée Bouchard Date: December 14, 2016 Citation: 2016 HRTO 1614 Indexed as: Girard v. Mary-Am Corporation

WRITTEN SUBMISSIONS

Marie-Eve Girard, Applicant Allisa Wu, Counsel

Mary-Am Group (Mary-Am Maid), Respondent Daniel English, Paralegal

INTRODUCTION

1The applicant, Marie-Eve Girard, worked as a housekeeper for the respondents Mary-Am Corporation, Mary-Am Hospitality Corp. and Maryam Maids Inc. She claims she was terminated after the respondents learned of her pregnancy, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), and that she was the victim of reprisal or threat of reprisal. The respondents deny that they terminated the applicant’s employment and argue that she resigned from her position.

2For the reasons discussed below, I find that applicant’s employment was not terminated and she did not experience adverse treatment contrary to the Code. In the absence of adverse treatment, the applicant’s claim of discrimination is unfounded.

FACTS

Background

3The applicant testified on her own behalf. Shaghayegh (Sherry) Mostafavi testified for the respondents.

4The respondents provide luxury accommodations for short and long–term stays. At the time of the applicant’s employment, the respondents provided their own housekeeping services to condo units, houses and hotels. Such services have since been outsourced.

5Ms. Mostafavi was the manager of Maryam Maids Inc. at the time of the incidents and is now the director of sales at Mary-am Suites, which operates as part of the respondent Mary-Am Corporation. Ms. Mostafavi interviewed the applicant on June 9, 2014 and made her a written offer for the position of full-time permanent Mobile Housekeeper on the same day. The applicant began working for the respondents on June 12, 2014.

6The applicant’s duties included cleaning condominium units around the Greater Toronto Area. Ms. Mostafavi was the applicant’s manager.

7Neither the applicant nor Ms. Mostafavi speaks English as her first language. English is the only language they have in common. They both acknowledged that they faced significant challenges communicating with each other. Their verbal exchanges were particularly difficult, and they took to communicating in writing via texts and emails. In their view, this was a much more effective way of communicating. The parties introduced in evidence relevant email exchanges. However, text exchanges were no longer available.

8The applicant testified that she worked on average 32 hours a week, usually from 8 a.m. to 5 p.m. from Monday to Wednesday and Thursday from 8 a.m. to 1 p.m. She earned $15 an hour with an additional $50 a month for transportation.

9On her first day of work, the applicant met with Ms. Mostafavi at the office and was provided with a vacuum cleaner, cleaning supplies and a laundry key to access a warehouse that contained the laundry room and supplies and other equipment. The warehouse also contained additional vacuum cleaners. Ms. Mostafavi did not contradict this evidence but added that the warehouse contained furniture other than cleaning equipment, such as televisions.

10The applicant testified that she was allowed to keep the laundry key and supplies at all times, even while on vacation, but had to return unit keys at the end of her shifts. On the rare occasions when the applicant forgot her laundry key, she called Ms. Mostafavi who asked her to use the key in the laundry room mailbox. The applicant testified that, during her employment, she looked in the mailbox several times and the spare laundry key was always there.

11Ms. Mostafavi testified that good housekeepers are extremely difficult to find and she always maintained a good relationship with them. The success of the respondents’ business is in part dependent on good housekeeping services.

12By all accounts, the applicant was a good housekeeper. Ms. Mostafavi testified that she did not want to lose her as an employee and as such treated her well and always took a very generous approach to her requests for days off. For example, on November 23, 2014 the applicant told Ms. Mostafavi by email that she was taking December 22, 2014 to January 5, 2015 off work. Ms. Mostafavi was quite surprised by this notification, as housekeepers were not entitled to vacation time in their first year of employment. Ms. Mostafavi indicated that she personally spoke with the accounting services to ensure that the applicant’s vacation could be approved. Ms. Mostafavi approved the applicant’s two week vacation on December 2, 2014 and the applicant was grateful for that.

13The applicant discovered she was pregnant during her holiday.

14On January 4, 2015, the applicant received assignments for the week of her return. The applicant testified that on January 6, 2015, she texted Ms. Mostafavi before 8 a.m. to advise that she was unable to come into work as she had to go to the hospital. The applicant also testified that she told Ms. Mostafavi that day by text about her pregnancy, though she would have preferred to tell her in person.

15According to the applicant, Ms. Mostafavi was not happy about the news and told the applicant that she must come in to clean the units. In response, the applicant testified that she sent Ms. Mostafavi a copy of the medical note from the Emergency Room, advising that she was to be off work until assessed by a family physician or specialist. The applicant testified that Ms. Mostafavi advised her that she was not to come back and that she needed to return all her cleaning supplies and laundry key.

16There is a discrepancy between the applicant and Ms. Mostafavi’s evidence as to the events surrounding the pregnancy announcement. Ms. Mostafavi confirmed that on January 4, 2015 she sent the applicant her schedule for January 6, 2015. Her recollection was that on January 6, the applicant informed her that she could not work because of illness. Ms. Mostafavi cancelled the work order and sent the applicant her schedule for January 7, 2015. Ms. Mostafavi testified that the applicant informed her on January 8, 2015, that she was pregnant and Ms. Mostafavi congratulated her. She did not recall receiving medical documentation from the applicant at that time.

17Ms. Mostafavi testified that she is always accommodating when employees are pregnant. As she herself will likely have children, she understands pregnancy. She understands that the first three months can be particularly difficult but in her experience, employees who take that time off tend to return to work for the remainder of the pregnancy. Ms. Mostafavi testified that she was worried about the applicant’s health and told her that there was no need for the applicant to come to work. Ms. Mostafavi clarified that she meant the applicant should stay home during her illness. In Ms. Mostafavi’s view, she never terminated the applicant and never wished to.

18The applicant testified that after January 6, 2015, Ms. Mostafavi called her five to eight times a week to request that she return the supplies and laundry key. Ms. Mostafavi confirmed that she tried to reach the applicant to ask for the laundry key and cleaning supplies, but denied having done so five to eight times a week.

19The applicant maintained that, because she was told not to come back to work and to return the laundry key and supplies, she was terminated effective January 6, 2015. The applicant was adamant that she did not wish to lose her position and never resigned from it.

20Ms. Mostafavi testified that she had a responsibility, as a manager, to recover the laundry key and supplies from the applicant and to ensure that the housekeeping services were maintained. Her concern that the laundry key be returned was in part because it is specifically made for each housekeeper and is expensive. She wished to avoid the expense of having another one made for a temporary replacement. She explained that she was also concerned that leaving the key with an employee who is off work could lead to losses in the warehouse and liability issues.

21Ms. Mostafavi testified that when she did not hear back from the applicant, she sent text messages and emails requesting that the housekeeping supplies and laundry key be returned. She testified that she offered to have someone pick up the key from the applicant but never heard back from her. Ms. Mostafavi indicated that the applicant would have had to approve such process as it involved having someone attend at her home. The applicant denied that Ms. Mostafavi made such an offer to her.

22On January 12, 2015, Ms. Mostafavi sent the following email to the applicant:

Hi Marie,

As I mentioned on my last text message we need you to drop all our housekeeping stuff belong to Mary-am suites at […] no later then tomorrow at 12 p.m. Thanks. (verbatim)

23The applicant’s common law spouse replied to Ms. Mostafavi`s email as follows;

Like Mary say in her last message she is been told by a doctor to take off till today. She’s gonna meet the new doctor who will follow her during her pregnancy. She’s not feeling good enough to drive any where, she troat up all day long. If the doctor don’t want to send Mary back at work, I will personally bring back to your office all her housekeeping stuff this week. […] I already talk with the government about that and they open a case under your name and Maryam name. And they told me to contact them again if you keep contact and put pressure on Mary. So right now if you don’t want cooperate with her and understand she is very sick, I wil call them again and contact my layer as well. (verbatim)

24Ms. Mostafavi`s replied on January 13, 2015 as follows:

U are free to do what ever you want, you are responsible to return all the stuff that she had asap […] As a employee you re responsible to follow the rules even if you are sick still suppose to follow the rules lesson Im handling over 40 employee don’t try to teach me how to handle those things. You suppose to drop everything by today noon. Specially lundrey key otherwise if anything happened to the laundry you are the first person who is responsible. Now with this email it’s better to file the complain. Best regards. (verbatim)

25The applicant forwarded a medical note from her specialist, dated January 13, 2015, to Ms. Mostafavi advising that she would be off work for another week and would be reassessed by a doctor at that time. The applicant testified that she did not give a return to work date to the respondents because, until she was reassessed by a specialist, she did not know when she could return to work.

26Ms. Mostafavi testified that there were three housekeepers on staff, including the applicant, for approximately 120 units. She indicated that, as she had not heard from the applicant after the pregnancy announcement, she did not know the applicant’s intentions. Until mid-January, she managed to have the applicant’s work covered by other employees, but this was not sustainable for a long leave of absence. She hired someone else to replace the applicant after the applicant began asking for her Record of Employment (“ROE”) on January 20, 2015. At that point, she assumed the applicant had resigned.

27Ms. Mostafavi testified that she never asked the applicant to provide doctors’ notes. This was not uncommon as she trusted employees when they said they were ill. She remembered receiving a doctor’s note from the applicant on January 20, 2015 without a return to work date.

28The applicant testified, and this is not contradicted, that when she began requesting her ROE on January 20, 2015, Ms. Mostafavi indicated that she would not complete the ROE until the supplies and laundry key had been returned. The applicant returned the supplies and laundry key on January 30, 2015 but only received her ROE at the beginning of March 2015 despite multiple requests to the respondents. Ultimately, it was through Service Canada that she was able to receive her ROE.

29Ms. Mostafavi testified that she believed a ROE is provided only when an employee is terminated. She also noted that she was not responsible for issuing the ROE, it was for the accounting services to do so. As she had not terminated the applicant, Ms. Mostafavi did not ask accounting services to prepare a ROE. It is only when the applicant requested her ROE in mid-January that she assumed the applicant was resigning.

30The applicant acknowledged that, in the ROE, the listed reason for its issuance was that she had “quit” her employment. The applicant did not dispute the accuracy of the ROE with the respondents. She testified that she contacted Service Canada to discuss the alleged inaccuracy and was told to raise this issue at the hearing.

31The parties presented no evidence that the respondents provided a notice of termination or termination pay to the applicant.

Credibility

32While some of the facts of this case are not contested and/or are supported by documentary evidence, other facts require me to choose between the applicant and Ms. Mostafavi’s conflicting testimonial evidence. In evaluating the evidence in this case, I have given consideration to the following analyses frequently cited in decisions of this Tribunal, see Marne v. Aptco Capital Corporation, 2014 HRTO 1756:

1. “When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony.” Reliability is influenced by a witness’s ability to “accurately observe, recall and recount” events. Credibility goes to the propensity to tell the truth or the “sincerity” of the witness. See R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (ON C.A.) at p.205
2. Credibility can be determined by evaluating whether the story provided by the witness is consistent with the “preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions:” see Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)
3. In evaluating the credibility or reliability of evidence, one looks to a number of interrelated factors such as its probability, logical connection with other findings and support from independent evidence. In evaluating the credibility of a witness, one looks to such factors as the ability to “perceive and recall,” level of candour (or evasiveness) and “attitude towards the parties.” See Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 at para. 54
4. “A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable.” See Visic, above.

33The manner in which the applicant and Ms. Mostafavi gave their evidence appeared to be sincere. However, there were aspects of their evidence, discussed below, that were not supported by either independent evidence or the circumstances and this goes to the reliability of their observations or recall.

ANALYSIS AND DECISION

34In order to succeed in this Application, the applicant must establish, on a balance of probabilities, that she experienced adverse treatment from the respondents and that her pregnancy was a factor in the adverse treatment. The applicant need not prove that her pregnancy was the only reason for the adverse treatment: she must simply establish that it was one factor. See Pelletier v. 2091174, 2015 HRTO 1099 at para. 2 and Peel Law Association v. Pieters, 2013 ONCA 396 at para. 59.

35The applicant asserts that she experienced adverse treatment when the respondents terminated her employment because of her pregnancy. The respondents dispute this assertion and state the applicant voluntarily resigned from her employment.

36There are a number of factors that lead me to find, on a balance of probabilities, that the respondents did not terminate the applicant’s employment.

37There is no evidence that Ms. Mostafavi told the applicant that she was terminated and there is no evidence that the respondents provided a termination notice or termination pay to the applicant.

38I addition, the applicant’s testimony that she believed she had been terminated on January 6, 2015 is in direct contradiction with the way she and her common law spouse interacted with Ms. Mostafavi following that date. For example, the applicant continued to provide medical documentation to the respondents. More specifically, the January 13, 2015 doctor’s note indicated that the applicant would be off work for another week and reassessed at that time. This, in my view shows that the applicant intended to return to work once medically able to do so. This is further supported by the applicant`s common law spouse who, in an email to Ms. Mostafavi on January 13, 2015, told Ms. Mostafavi that he would return the equipment if the doctor did not clear the applicant for her return to work: “If the doctor dont (sic) want to send Mary back at work, I will personally bring back to your office all the housekeeping stuff this week.”

39In addition, Ms. Mostafavi’s reply to the applicant on January 13, 2015 clearly refers to her as an “employee” and tells the applicant that even when sick, employees must follow the respondents’ rules. The applicant also testified that she did not provide the respondents with a return to work date because she was still waiting for the doctors to tell her when she could resume her work.

40The fact that the respondents issued the ROE and marked “quit” as the reason for issuance is another indication that the respondents had not terminated the applicant. It is a serious offence to misrepresent the reason for issuing a ROE and it is unlikely that the respondents would risk a fine or prosecution by doing so. In addition, the applicant never challenged the accuracy of the ROE with the respondents.

41I find that in mid-January 2015 both the applicant and respondents were acting as if the applicant remained an employee of the respondents.

42I also believe that Ms. Mostafavi valued the applicant’s work. She knew that good housekeepers are key to the respondents’ business and there was no question that she found the applicant to be a good housekeeper. I admit that Ms. Mostafavi was not tactful in making multiple requests to return the supplies and laundry key while the applicant was ill. However, I find that Ms. Mostafavi felt professionally obliged to request the return of the supplies and laundry key and as a manager it was her responsibility to do so. The applicant provided no evidence to show that, until the email exchange of January 13, 2015 between the applicant’s spouse and Ms. Mostafavi, she responded to Ms. Mostafavi’s requests to indicate that she would attempt to return the key and supplies either herself or with the assistance of someone else. This failure likely contributed to Ms. Mostafavi’s insistence.

43The applicant never provided Ms. Mostafavi with a return to work date, and there is no evidence that she provided further medical documentation after the January 13, 2015 doctor’s note. Once Ms. Mostafavi received the request for the ROE on January 20, 2015, it was reasonable for her to assume that the applicant had decided to resign from her employment. I find that the respondents never intended or never did terminate the applicant and the ROE reflected that.

44I find that the applicant failed to prove on a balance of probabilities that the respondents discriminated against her with respect to employment because of her pregnancy.

ORDER

45For the reasons above, the Application is dismissed in its entirety.

Dated at Toronto, this 14th day of December, 2016.

“Signed By”

Josée Bouchard Vice-chair