HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Fatiha Khaldi
Applicant
-and-
TBM Holdco Ltd./Tim-BR Mart
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Khaldi v. TBM Holdco Ltd./Tim-BR Mart
APPEARANCES
Fatiha Khaldi, Applicant
Self-represented
TBM Holdco Ltd./Tim-BR Mart, Respondent
Cherrine Chow and Jen Bernardo, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of family status, marital status age and being in association with a person identified by these grounds contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondent filed a Response denying the allegations.
2The Application named two individual respondents. In Interim Decision 2015 HRTO 1396 the Tribunal removed these individuals as respondents to the Application.
3This matter was scheduled for a hearing with respect to the merits of the Application on March 9 and 10, 2016 in Toronto. Services of a French-English interpreter were provided.
The applicant's evidence
4The applicant indicated she would be her only witness.
5The applicant was offered the position of Executive Assistant effective January 13, 2014. Her employment was terminated October 30, 2014.
6The applicant testified that on October 30, 2014, she was called into a meeting with Robert Scalese, the respondent’s Vice-president, Legal Affairs and Human Resources. The applicant recalled this meeting in vivid detail. Mr. Scalese presented her with a brown envelope which contained her letter of termination and told her that the members of the committee had met and decided to terminate her employment.
7The applicant asked for specific reasons why her employment was being terminated. The applicant says Mr. Scalese told her that there was “incompetency” in her work and discussed an incident involving an American Express charge card. She was also told that she was too slow and was not keeping up with the rhythm of the environment. The applicant said that she smiled and responded that this is not a very fast environment. Mr. Scalese told her that other employees were performing tasks which should have been assigned to the applicant because they did not have confidence in her work product. The applicant denies that she made a mistake and she denies that there were issues with her work product.
8Mr. Scalese told the applicant that her employment was not terminated for just cause. The respondent elected to pay her notice in accordance with her employment contract and an additional week of notice pay.
9The applicant says that she was in shock and surprised that her employment had been terminated and asked Mr. Scalese for a written letter explaining the reasons for this decision. She explained that she wanted to make sure that she understood. Mr. Scalese told her that if he put the reasons in a letter that this might not be to her advantage because employment insurance could find that the reasons amount to cause. The applicant told him not to worry and to just prepare the letter.
10Mr. Scalese sent the applicant an email providing reasons. The applicant says that the reasons given in the email were different than the reasons given at the termination meeting. This email was not entered into evidence because neither party could locate this document. She could not explain to the Tribunal what was said in the email other than that the email mentioned “administrative difficulties”.
11The applicant did send an email in response (which was admitted into evidence), in which she takes issue with the fact that the letter does not contain the full reasons given to her at the termination meeting and that she was never given an opportunity to address any performance concerns that the respondent had with her work product. The applicant also takes issue with the fact that she was never given a six-month performance review.
12The applicant alleges that the reasons given to her by the respondent to justify her termination from employment are not true and were a pretext. The applicant believes that the real reason that she was terminated from her employment was due to attendance issues. This includes the fact that she had to miss work, usually in coming in late and leaving early, to take care of her son who is autistic. She also believes that sometime in July work was being diverted to another employee who is younger than her and who does not have the same childcare obligations and who had more flexibility in her work hours. The applicant believes that though this was never mentioned at the meeting that this is the real reason for the termination from her employment.
13In support of this position the applicant produced an email dated January 20, 2014, in which she asked “Could you please advise what are the standard hours per week for our office.” The response to this email was “It’s 7.5 hours a week for a regular week but there may be times when extra time is needed to finish tasks. This usually means a 7.5 hour workday.”
14The applicant recalls that she had a meeting in July with respect to her work hours. She was told that her hours of work had been inconsistent at that the respondent needed to know when she would be at work. She was told that she had to select a work-schedule. She advised that she would work from 9:00 until 17:00 hours. There is no dispute that the respondent permitted the applicant to work these hours. The applicant did not testify that she advised the respondent that she needed accommodation or that her hours of work up to the point were related to taking care of her son’s needs.
15Though the applicant testified that she would be late in the morning sometimes because her son did not want to go to school she could not provide me with any dates on which she was in fact late. There was no evidence at all about how many times she had been late, when she had been late and why she had been late. When I asked her how many times she was late she answered that “she was late like everybody else”.
16With respect to leaving work early to take care of her son she explained that her son finishes school at 15:15 and that either her 24 year old daughter or a neighbour looks after him until she gets home from work. The only time that she recalls having to leave work early because of child-care issues was when she received a telephone call in February 2014 from the school. The applicant recalls in vivid detail that she had to bring shirts to an event when she got the call. She explained that she was so distracted that she walked into a door and that she had to be taken to the hospital in a taxi. She recalls that, as she was being taken to the hospital, she disclosed that her son was autistic.
17The applicant also said that she had to leave early once every three to four months to meet with pre-scheduled meetings to address her son’s learning plan. The applicant does not recall when she had these meetings with the school or when they occurred. The applicant did not provide any dates on which she had refused to work late, or that in fact she had been requested to work late by the respondent.
18The applicant also testified that the respondent failed to guide her, or warn her and there were no red flags that her employment was about to be terminated. The applicant now believes that work was being transferred from her to another younger female employee at some time in July 2014. The applicant could not explain what exact work was transferred to the other employee.
19The applicant also stated that she felt that the fact that she could not travel was held against her. However, she did not specify a time when the respondent had asked her to travel for business reasons.
20She said that she had seen the emails that had been disclosed by the respondent with respect to some concerns about her work and that she was prepared to argue against every negative argument that they were making about her work performance.
21After the applicant finished her testimony I directed the parties to make submissions on the issue of whether the Application should be dismissed as having no reasonable prospect of success.
The Law
22The Tribunal’s mandate is to ensure fair, just and expeditious resolution of the matters that are within its jurisdiction. In achieving this mandate the Tribunal has determined that at any point it may hear submissions on whether an application has a reasonable prospect of success. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.
23The issue before me is whether or not the applicant has no reasonable prospect of establishing on a balance of probabilities, that any one of the claimed prohibited grounds was a factor in any adverse treatment by the respondents. In Peel Law Association v. Pieters, 2013 ONCA 396 at para. 59, the Ontario Court of Appeal discussed the elements required to show a prima facie case of discrimination under the Code, holding that the applicant must prove:
- he or she is a member of a group protected by the Code
- he or she was subject to adverse treatment, and
- there was a connection between the adverse treatment and the ground of discrimination invoked.
24Although this was not a summary hearing I note that in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal stated:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
Decision
25I am of the view that the applicant has no reasonable prospect of establishing on a balance of probabilities that the respondent contravened the Code when it terminated her employment.
26The applicant did not lead any evidence with respect to when and how many times she was either late for work and/or had to leave early due to childcare issues. Further, though the applicant states that any attendance issues she may have had were related to her childcare needs she led no evidence to support this. In fact, the applicant testified that her absences were minimal and she was as late as any other employee. Regardless, the applicant led no evidence that she told the respondent that the reason she was late or had to leave work early was due to childcare issues.
27Further, there is no evidence to support the applicant’s believe that her childcare commitments had any impact on her hours of work. The applicant led no evidence with respect having had to refuse travel and/or working late because of childcare issues. The evidence lead by the applicant established that she was required to work 7.5 hours per day and that she picked her work-day schedule of 9:00 to 17:00.
28The applicant led no evidence with respect to the nature of the work that was allegedly transferred to the younger employee. Further, the applicant led no evidence with respect to this employee’s actual hours of work.
29In this case I am of the view having heard the applicant’s evidence that her theory of discrimination is based entirely in speculation and conjecture. The applicant was provided with the opportunity of calling the evidence she relies upon to establish a breach of the Code. However, prior to requiring a respondent to call its evidence there must be particulars of the allegations that are made against it. This includes particulars as to the times, dates and events that occurred. Evidence must have some level of specificity so that a respondent has a fair opportunity to respond to the allegations made against it. Although the applicant was able to describe in detail the termination meeting itself and the incident in February 2014 when she injured herself she failed to call any specific evidence with respect to the central issues in the case as detailed above.
30The Tribunal has repeatedly stated that it does not have the jurisdiction to deal with allegations of general unfairness unless they are linked to a protected ground under the Code. Having considered the matter I am of the view that the applicant has not led sufficient particularized evidence to support her belief that a prohibited ground of discrimination was a factor in the respondent’s decision to terminate her employment.
31As such the Application is dismissed.
Dated at Toronto, this 24th day of June, 2016.
"Signed By"
Geneviève Debané
Vice-chair