Hajiantoniou v. Ontario 1903626, 2016 HRTO 560

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marina Hajiantoniou

Applicant

-and-

Ontario 1903626

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: April 27, 2016

Citation: 2016 HRTO 560

Indexed as: Hajiantoniou v. Ontario 1903626

APPEARANCES

Marina Hajiantoniou, Applicant

Self-represented

Ontario 1903626, Respondent

John Konstantinidis, Representative

1The applicant alleged that the respondent discriminated against her because of her sex contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, she alleged that the respondent discriminated against her by terminating her employment due to her pregnancy. The respondent denied that it discriminated against the applicant.

2At the hearing of the Application, I heard testimony from the applicant as well as John Konstantinidis, one of the owners of the respondent.

3Although I have some concerns about the respondent’s evidence in this case, I find that the applicant has not met her onus of making out a breach of the Code. Therefore, the Application must be dismissed.

Factual Background

Applicant’s Hiring

4The applicant became employed as a cashier with the respondent restaurant on September 4, 2014. She was hired just one month after the restaurant opened. She was interviewed and hired by Mr. Konstantinidis. It is not disputed that the applicant told Mr. Konstantinidis that she was 15 weeks pregnant at the time of her job interview and that she would be going on maternity leave at the end of December 2014.

5Mr. Konstantinidis hired the applicant. It is not disputed that he had no issue with the applicant’s pregnancy at the time of hiring. In the applicant’s words in her Application, Mr. Konstantinidis was “more than accepting” of her pregnancy and the fact that she would be taking a maternity leave in December 2014. The applicant also said that Mr. Konstantinidis told her that she should return as soon as possible after her maternity leave. For his part, Mr. Konstantinidis testified that he joked with the applicant at the time that he hired her that he likes pregnant women because he came from one.

6It also appears that, at the time of hiring, Mr. Konstantinidis was willing to provide accommodations for the applicant’s pregnancy-related needs. According to the applicant, when she was hired, Mr. Konstantinidis told her that the restaurant was short staffed and that he might need her to work long hours. The applicant agreed so long as she could sit down if necessary due to her pregnancy. Mr. Konstantinidis agreed that the applicant could sit at one of the tables in the restaurant so long as it was not busy and there were no customers there.

7As a cashier, the applicant’s duties involved greeting customers at the cash, receiving payments, answering the phone for delivery and pick-up orders, providing the cash register bill to drivers for deliveries, checking orders for completeness and placing orders in a bag for customers.

Applicant’s Employment in September and October, 2014

8The applicant testified that she worked approximately 51 hours per week during the month of September. The respondent hired a relative of the owner as a new staff member in early October. The respondent asked the applicant to train the new staff member on the cashier’s duties. The applicant testified that her hours were drastically cut once the new staff member was hired. She testified that her hours in October dropped to 28 hours per week for the first two weeks of October.

9The applicant testified that, as her pregnancy progressed, a co-worker commented that she soon would not be able to fit behind the cash register and that the respondent should not have hired her. Mr. Konstantinidis denied knowledge of such comments. He also expressed skepticism that any co-worker would comment on the applicant’s size. He testified that many other employees of the respondent were as big as the applicant was and that none of them had any issue fitting behind the cash.

10The applicant testified that her manager at the restaurant told her not to go down to the basement to get supplies due to her pregnancy. The applicant saw this as a removal of some of her work duties. Mr. Konstantinidis testified that it was never the applicant’s duty to take care of the supplies. He also testified that the respondent told her not to deal with the supplies in an attempt to accommodate her pregnancy. The applicant claimed she was capable of going up and down stairs and carrying the supplies at issue (jars of condiments) so no accommodation was necessary.

Termination of Applicant’s Employment

11The applicant testified that the respondent did not provide her with a work schedule for the third week of October. The respondent’s managers would typically create the schedules on Sundays. On the third Sunday in October (October 19th), the applicant asked Mr. Konstantinidis for her schedule for the following week. He told her that the schedule was not out yet and said she should call the next day. The applicant called the next few days and she was told that her schedule still was not ready. When she followed up with Mr. Konstantinidis again by telephone on the Friday, he told her she was fired. When the applicant asked why, Mr. Konstantinidis told her that it was because the restaurant was not busy. The applicant asked Mr. Konstantinidis why he had hired the extra person if the restaurant was not busy. She testified that he responded by saying that it was a “good question”.

12There were two main managers during the applicant’s time at the restaurant, one named “Kimonas” and another named “Triadafilos”. When the applicant hung up the phone from her call with Mr. Konstantinidis, she called “Triadafilos” to ask why she had been fired. According to the applicant, Triadafilos told her that she was fired because she was pregnant and could not do as much as the cashier that had just been hired. The respondent did not call “Triadafilos” to testify at the hearing. It did seek to introduce a statement by the other manager, Kimonas Sikiaridis. I ruled that Mr. Sikiaridis’ statement was not admissible as he was not present at the hearing to be cross-examined.

Reasons Given for the Termination

13Mr. Konstantinidis testified that the respondent terminated the applicant’s employment due to changes it made to the cashier’s position. He stated that due to a slowdown in business in October 2014, after the summer months, the respondent decided to reorganize the cashier’s position.

14Initially, the respondent decided that the cook and waitress positions should include the cashier’s duties. However, when the restaurant was busy, the cooks and waitresses did not have time to take on the cashier’s duties. The respondent then decided to modify the cashier’s duties to include salad preparation duties for both take-out and eat-in customers.

15Mr. Konstantinidis testified that the new cashier he had hired held a food handler’s certificate. Mr. Konstantinidis testified that he repeatedly told the applicant that she should obtain a food handler’s certificate but she did not. The applicant denied that he had ever mentioned anything regarding a food handler’s certificate to her. She testified that she had volunteered to prepare salads but Mr. Konstantinidis told her that it was unhygienic for her to do so since she was also handling money. Mr. Konstantinidis testified that he told the applicant that it was unhygienic and that she would know this if she had a food handler’s certificate.

16Although the respondent relied upon the changes to the cashier position as the reason for firing the applicant, it also pointed to various other issues it had with the applicant in its Response. The Response states that the applicant would leave her post at the cash register to sit at one of the restaurant’s tables on a regular basis. The Response states that the applicant was

repeatedly asked to return to her designated work areas at the cash register to greet incoming patrons and answer the phone when it rang. She continually defied this instruction by sitting at the table in the restaurant.

17The applicant testified that she would often sit at a table in the restaurant because her feet were swollen due to her pregnancy. She said she was never aware that this was a problem. She testified that Mr. Konstantinidis never told her that it was an issue and had given her permission to sit down if she needed to when she was hired.

18When I asked about the portion of the Response quoted above in the hearing, Mr. Konstantinidis said that the applicant was constantly sitting down and that the respondent did its best to accommodate her in this regard. He said that it had not been his understanding that the applicant would have to sit her whole shift at a table when her job was to be at the cash. Nevertheless, he stated that the key issue was that the applicant was unable to take on the salad preparation role due to the fact that she did not hold a certificate to handle food.

Applicant’s ESA claim

19After her termination, the applicant contacted the respondent’s accountant to ask for her record of employment, overtime pay, pay stubs, etc. The applicant ultimately ended up filing a claim under the Employment Standards Act (“ESA”) for overtime pay, vacation pay, and unauthorized deductions. She also claimed that the respondent reprised against her within the meaning of the ESA. An Employment Standards Officer (“ESO”) upheld the applicant’s claim in part. However, he denied her reprisal claim on the basis that she had failed to confirm how she was reprised against and for which specific protected activity.

APPLICABLE LAW

20Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including sex. 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: s. 10(2) of the Code.

21The applicant bears the legal onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination was a factor in the respondent’s actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. The caselaw is clear that discrimination need only be one of the factors involved for there to be a violation of the Code. In addition, it is unnecessary to prove that there was an intention to discriminate to support a finding that the Code has been violated. See Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 40 and Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 at para. 96 (Div. Ct.).

22In assessing the credibility and reliability of their testimony, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354. In particular, I have sought to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.

Analysis and Findings

ESO’s Decision

23I have considered whether the ESO’s decision appropriately dealt with the substance of the Application. Under 45.1 of the Code, the Tribunal has the power to dismiss Applications where the substance of the Application has been appropriately dealt with in another proceeding.

24The Tribunal has held that the pregnancy and parental leave provisions together with the anti-reprisal provision in the ESA are in the nature of anti-discrimination enactments. See Chen v. Harris Rebar, 2009 HRTO 227 at para. 13. In some cases, the Tribunal has dismissed Applications on the basis that an ESO’s decision under these provisions has appropriately dealt with the substance of the Application. See for example Henderson v. Nutech Fire Protection, 2010 HRTO 2153. However, I find that the ESA proceeding in this case did not appropriately deal with the substance of the Application.

25The applicant’s claim under the ESA included a claim of reprisal under the ESA. The ESO commented that some of the surrounding facts found during his investigation suggested that the applicant was not reprised against because she was planning on going on maternity. However, his decision was ultimately based on the applicant’s failure to provide evidence to satisfy him that she was exercising one of the protected rights under the ESA. He also did not appear to consider whether the applicant’s pregnancy and accommodation needs were a factor in her termination. On this basis, I find that the proceeding before the ESO did not appropriately address the substance of the Application before this Tribunal.

Alleged Code violation

26Whenever an employer claims that it terminated an employee’s employment because of a “re-organization”, it is necessary to scrutinize the alleged re-organization to ensure that it was not carried out as a pretext for discrimination. Therefore, I have carefully considered whether the applicant’s pregnancy, her upcoming pregnancy leave, or her requests for pregnancy-related accommodation were factors in the termination of her employment. I have also clearly kept in mind that, for there to be a violation of the Code, the applicant’s pregnancy would only need to be a factor leading to the termination of her employment (not necessarily the only factor, or the main factor).

27I find it unlikely that the applicant was terminated either because of the fact that she was pregnant or because she would be taking pregnancy leave as of the end of December 2014. It was not disputed that Mr. Konstantinidis was aware of both of these facts when he hired the applicant in early September 2014. Therefore, I do not find it likely that they were factors in his decision to terminate her employment less than two months later.

28I turn then to whether the applicant’s pregnancy-related accommodation requests were a factor in the termination of her employment. It is important to note that, under the Code, a respondent has a duty to accommodate an applicant’s pregnancy-related needs up to the point of undue hardship. Even when a respondent provides certain accommodations for a period of time, it is possible for a respondent to breach the Code by re-organizing an applicant’s position. This would be the case if the Tribunal finds that the alleged re-organization was a pretext to avoid continuing to accommodate the applicant’s pregnancy-related needs.

29It was not disputed that the respondent had complied with the applicant’s only accommodation request which was to be able to sit when necessary. The applicant agreed that Mr. Konstantinidis had never spoken to her about her need to sit down and that he had never told her not to sit down during her shift. This evidence supports the respondent’s claim that the applicant’s accommodation requests were not a factor in the termination of her employment.

30In addition, several factors support the credibility of the respondent’s claim that it re-organized the cashier position for valid business reasons. I accept as credible the respondent’s evidence that it was facing a reduction in business after the summer months. This evidence was not disputed and I find it probable that such a slow down is likely when the summer season is over. In addition, the restaurant had just opened a month before the applicant was hired, so it is reasonable to believe that the respondent was still trying to determine the best way to organize the various duties of the cashier position. These factors support the credibility of the respondent’s claim that it made the changes to the cashier’s position for bona fide business reasons.

31It was not disputed that the applicant could not carry out the salad preparation duties that were added to that position because she did not have a food handling certificate. It was also not disputed that the other cashier did have such a certificate. Both of these factors support a finding that the reason for the applicant’s termination was the fact that she could not fulfill the new duties of the cashier’s position.

32Although the above factors support the respondent’s position, two pieces of testimony cause me concern. First, the applicant testified that one of the respondent’s managers told her that the respondent fired her because she was pregnant and could not do as much as the cashier who had just been hired. This testimony was unchallenged since the respondent did not call this individual to testify at the hearing. I have serious concerns about this piece of evidence and the respondent’s failure to call this manager to testify.

33Having said this, the manager involved would not have been the one to terminate the applicant’s employment. That decision was made by Mr. Konstantinidis. As well, in referencing the various tasks that the applicant could not do, it is possible that the manager was referring to the salad preparation tasks also referred to by Mr. Konstantinidis at the hearing.

34I also have concerns about Mr. Konstantinidis’ testimony about the extent of the applicant’s need to sit down due to the swelling in her feet caused by her pregnancy. In his testimony, Mr. Konstantinidis appeared to suggest that, although the respondent was accommodating the applicant’s need to sit, it was finding that the applicant was sitting for (what the respondent considered to be) overly long periods of time. This might support the view that the alleged re-organization was a pretext to avoid having to continue accommodating the applicant’s pregnancy-related needs.

35While both of these pieces of evidence concern me, I find that they are not sufficient for me to draw an inference of discrimination in this case on a balance of probabilities. I find that the concerns I have with these pieces of evidence are not sufficient to counterbalance the other evidence set out above that supports the respondent’s claim that it made changes to the cashier position for bona fide non-discriminatory reasons and that the applicant’s employment was terminated due to her inability to carry out all of the duties of the newly designed position. My decision might have been different if there was stronger evidence that the respondent found the applicant’s accommodation needs to be inconvenient, if the applicant was indeed capable of performing the duties added to the cashier position, or if the restaurant and the duties of the cashier’s position were well-established and in existence for a significant period of time. Any or all of the above circumstances might have caused me to find a violation of the Code in this case on a balance of probabilities.

36On balance, in spite of my concerns with portions of the respondent’s evidence, I find that the applicant has not met her onus of proving that it is more likely than not that her pregnancy was a factor in the respondent’s decision to terminate her employment.

ORDER

37For the reasons set out above, the Application is dismissed.