[1999] OLRB REP. NOVEMBER/DECEMBER 941
0785-98-ES BFC Construction Group Inc., Applicant v. Myrna Omelas and Ministry of Labour, Responding Parties
BEFORE: Gail Misra, Adjudicator/Referee.
APPEARANCES: Federico Soda and Marc Beaudry for the applicant; Kevin Fox and Myrna Ornelas for the responding party employee; Alicia Gordon-Fagan for the Ministry of Labour.
DECISION OF THE BOARD; November 19, 1999
This is an employer application for review of Order to Pay No. 44324, which was made in favour of Ms. Ornelas on April 8, 1998. The application is made pursuant to section 68 of the Employment Standards Act (the "Act").
Prior to the commencement of the hearing the Ministry of Labour indicated it would not be participating in the hearing as counsel represented the other two parties. The Ministry was therefore not present throughout the hearing.
Order to Pay No. 44324, in the amount of $13,359.92 after statutory deductions had been made, was issued after an Employment Standards Officer found in favour of Ms. Ornelas' claim that her employment at BFC Construction Group Inc. ("BFC") was terminated when the employer became aware of her pregnancy. In this appeal BFC disputes that finding and maintains that Ms. Omelas' employment was terminated at the end of her probationary period because the employer was not satisfied with the quality of her work. Furthermore, BFC claims that at the time the decision was made to terminate her employment, BFC did not know that Ms. Ornelas was pregnant.
In the course of the hearing BFC called five witnesses, and Ms. Ornelas testified on her own behalf. I am satisfied that each witness testified to the best of his or her ability to recollect the period in question, which was a three month period in the last quarter of 1997.
In the summer of 1997 BFC was looking for an executive administrative assistant for three of its vice presidents in the accounting/financial area. Another employee of BFC recommended that the company consider Ms. Ornelas for the position. Ms. Ornelas applied for the job, and had a preliminary interview with the Manager of Human Resources, Marc Beaudry. At that time she also did a typing test. Although there is no evidence before me as to the results of the typing test, Ms. Ornelas must have had sufficient typing proficiency at that time as she was subsequently interviewed by one or two of the executives she would be working with.
There is some dispute about who interviewed Ms. Ornelas. She claims that she met with Neil Bacon, but he has no recollection of having interviewed her. Alfred Iwaskow testified that he interviewed Ms. Ornelas, but she disagrees. It is not necessary for me to make any finding in this regard as the only pertinent fact which emerged from this second interview was that the employer was aware before it hired Ms. Ornelas that she did not have much experience working with spreadsheets on a computer. She had taken an introductory course a few years previous, and Mr. Iwaskow testified that he was of the view at the time that BFC could train Ms. Ornelas on the type of spreadsheet work it required.
BFC decided to offer Ms. Ornelas employment, and sent her an offer of employment on August 8, 1997. The letter stated that permanent full-time status would be confirmed following a satisfactory performance review that would be conducted after three months of service.
There is no dispute that Ms. Ornelas began employment on August 18, 1997. She performed work for the accounting department and for three vice presidents, Neil Bacon, Alfred Iwaskow, and Jan Lech. In addition, she provided relief on the switchboard. At no time during the following three months did anyone specifically bring any problems regarding work performance to Ms. Ornelas' attention. BFC was satisfied with the work Ms. Ornelas did on the switchboard. The problems were apparently with her memo and letter typing, wherein it is alleged that she made numerous spelling and grammatical mistakes.
Mr. Iwaskow testified that Ms. Ornelas would type letters and memos for him, that her work would contain spelling errors, and that he would have to circle the errors and send documents back for corrections. He testified that there was "spellcheck" on her word-processing software, but those documents would nonetheless come to him with errors. Mr. Iwaskow was cross-examined about the number of memos which Ms. Ornelas may have typed for him, but he could not recall how many. He was sure she had done memos every day or other day during the three months. To his mind Ms. Ornelas was not working out during her probationary period. Due to his poor assessment of Ms. Ornelas' work, Mr. Iwaskow did not bother to have her trained on spreadsheet work. Mr. Iwaskow says he did not bring his concerns to Ms. Ornelas' attention because he was circling the mistakes anyway, and he hoped her work would improve in the three-month trial period.
Jan Lech testified about the work Ms. Ornelas did for him. She did typing, the preparation of minutes of meetings, and filing for him. He too found that she made a number of spelling mistakes in her typing. He would circle mistakes and have the documents retyped. He was not satisfied with Ms. Ornelas' work as in his experience she made more than an acceptable number of mistakes.
Neil Bacon indicated that in his experience in the three month probationary period Ms. Ornelas would prepare work for him, he would make corrections, and when the corrected document would return to him there would still be mistakes. He did not find her work to be satisfactory. He did not know that the other two vice presidents also found her work unsatisfactory.
On November 18, 1997 Ms. Ornelas asked the payroll clerk whether she was going to receive benefits and be a permanent employee because she had passed the three-month probationary period. The payroll clerk, Brenda McLean, told Ms. Omelas to speak to Mr. Beaudry, the Manager of Human Resources. Ms. Ornelas spoke to Mr. Beaudry and was advised that while she was now eligible for benefits, which are automatically available to employees after three months of service, she was considered probationary until her immediate supervisors had completed a satisfactory performance review. Mr. Beaudry then called Mr. Bacon to advise him that it was time to do a performance review for Ms. Ornelas as she had been at BFC for three months. He advised Mr. Bacon to pick up a performance evaluation form at his office. It appears that the next day Mr. Bacon picked up the form and approached his two colleagues, Messrs. Iwaskow and Lech, to discuss Ms. Ornelas' performance.
The three men met in Mr. Iwaskow's office on November 19, 1997 and had a discussion about their views of Ms. Ornelas' work. They quickly determined that none of them were happy with the quality of her work, so they decided they did not want to keep her on. According to Mr. Lech the employer considers a number of items in deciding whether to make a probationary employee permanent. They consider the quality of the work, how quickly it is produced, whether the employee is a fit in the company or the department, etc. Mr. Bacon was delegated to inform Human Resources of the decision. The performance evaluation form was not completed as the three men had determined that Ms. Ornelas would not be kept on in employment at BFC. If the company is going to make a probationary employee permanent, it is common practice to complete the performance evaluation form so that the employee can be told what his or her areas of strength or weakness are.
On Thursday November 20, 1997 Mr. Bacon communicated to Mr. Beaudry that the vice presidents would not confirm Ms. Ornelas in employment and indicated that Human Resources should take the necessary steps to terminate her employment. He told Mr. Beaudry the reasons for the decision. Messrs. Bacon and Beaudry tried to work out when they could jointly meet with Ms. Ornelas to effect the termination. At that time Mr. Beaudry was in the process of giving seminars to all employees of BFC across the country about conversions in the pension plan. He was therefore very busy and not available in Toronto much during the week of November 24 to 28. Mr. Beaudry indicated he could be available in a two hour time slot on the afternoon of November 27th between a seminar in Toronto and having to leave for a seminar in Edmonton. He undertook to prepare the standard termination letter and termination package for the meeting.
On the morning of November 20, 1997 Mr. Beaudry told Ms. McLean, the payroll clerk, that BFC was terminating Ms. Ornelas employment and that he would be sending her an e-mail and copy of a letter to that effect. It is common practice for Mr. Beaudry to put terminations in writing so that Ms. McLean can put the documents in the individual employee's file. It is also normal for Mr. Beaudry to tell Ms. McLean about the termination, as he knew that she would be in the process of preparing the payroll, which would then be sent to the bank on Friday. Documentation was put before me to show that Mr. Beaudry then sent Ms. McLean an e-mail at 9:22 a.m. that day. He stated that Ms. Omelas would be terminated as of November 27. He asked that her vacation pay also be prepared. He indicated that the reason (clearly for the Record of Employment purpose) was "dismissed". Ms. McLean did not actually open the e-mail until 5:20 p.m. that day.
Also on November 20th Mr. Beaudry did some work on a termination letter to Ms. Omelas. He used a standard termination letter and dated it for November 27, 1997, the day the termination meeting was to be held. A computer report of when that document was last worked on shows it was dealt with on November 21, 1997 at 3:53 p.m. Mr. Beaudry indicated he had downloaded a precedent termination letter on the 20th and had then completed the letter by personalizing it for Ms. Ornelas on the 21st. He testified that he had prepared it so far in advance as he knew that he would have no time in the following week before he had to meet with Ms. Omelas on November 27th. As has been noted earlier, Mr. Beaudry was going to be busy with his pension plan presentations in the week of November 24 to 28, 1997. Mr. Beaudry signed the termination letter that day and gave Ms. McLean a copy for the employee's file.
Counsel for Ms. Ornelas alleged that BFC had manufactured the e-mail dates and the computer report regarding when the termination letter was last worked on. It is a serious allegation to suggest that a party has manufactured evidence or has tampered with a computer in order to generate a false document. The evidence before me is that it would not be a simple matter to have turned back the clock on the company's main server in order to accomplish what is being alleged. Mr. Beaudry would have had to get the Manager of the Information System to change the clock on the main computer server to backdate a document. This would have implications for everything the company had done in that period of time. There is simply no evidence to support Ms. Omelas' contention, and I therefore find as a fact that the computer generated reports are genuine.
At 8:30 a.m. on Monday November 24, 1997 Ms. Ornelas informed Mr. Lech that she was pregnant. They had a discussion about the news, Mr. Lech indicated he was happy for her, and he asked her if she planned to work until she gave birth. Ms. Ornelas indicated she would want to do that. Mr. Lech testified that he asked this latter question because he did not want to let slip that the decision had already been made not to keep her on. He knew that the termination interview was not to be held until later that week. Upon hearing the news of the pregnancy, and knowing that the three vice-presidents had already indicated they wanted to terminate Ms. Ornelas' employment, Mr. Lech got worried as he knew there may be legal implications for the company if it terminated Ms. Ornelas' employment around the time it had become aware of her pregnancy. He went and told Mr. Iwaskow the news, and between them they decided that Mr. Lech should go and talk to Mr. Beaudry in Human Resources about this development.
Mr. Lech went to the entrance of Mr. Beaudry's office and asked him if it made any difference to their decision that Ms. Ornelas had now indicated she was pregnant. Ms. McLean sits directly outside Mr. Beaudry's office and was present for the interchange. Mr. Beaudry assured Mr. Lech that there was no problem because they had already decided to terminate Ms. Ornelas' employment before the employer ever knew that she was pregnant. He further indicated that the employer could prove that it had made the decision the previous week because of documentation that he had already prepared.
Both Ms. McLean and Mr. Beaudry testified about Mr. Beaudry's communications on November 20, 1997. They also both testified, along with Mr. Lech, about his conversation with Mr. Beaudry on November 24th, after he had heard that Ms. Ornelas was pregnant. Ms. McLean did not transmit the payroll for that pay period to the bank until the morning of November 24, 1997 because she had to wait for information from Quebec regarding employees there. At the time that she transmitted the payroll she also requested that the bank prepare a Record of Employment ("ROE") for Ms. Ornelas. The ROE given to Ms. Ornelas at her termination meeting later that week is dated November 24, 1997.
It appears that on November 24, 1999 a number of new high-powered computers arrived for some of the staff in the accounting department. One was initially placed on Ms. Ornelas' desk. However, Mr. Lech advised the installers that she did not need one as Ms. Omelas did not do data entry, and it was therefore removed the next day and was installed for someone who could make use of the higher level of sophistication.
On November 27, 1997 Mr. Bacon and Mr. Beaudry were to meet with Ms. Ornelas to inform her of her termination. Mr. Bacon was called away, so Mr. Lech participated in the termination meeting as it is BFC policy that one immediate supervisor must be present, along with one person from the Human Resources department, at all termination meetings. The meeting was held in Mr. Lech's office, and Ms. Ornelas was called in. Mr. Beaudry informed her that BFC had made an assessment of her performance and had decided not to make her a permanent employee. She was surprised and asked if it was because of her pregnancy. Mr. Beaudry assured her that BFC had not known about her pregnancy when the decision had been made not to keep her on. He advised her that she was not suitable for the job, and that was the reason her employment was being terminated after the probation period.
BFC has had a number of female staff take pregnancy and parental leave and return to employment. One male employee took parental leave and returned to employment. I was provided with a relatively lengthy list of employees who had availed themselves of their statutory right to pregnancy and parental leave and had returned to work at BFC.
The employer has no practice of giving probationary employees warnings or discipline about poor work performance. BFC sees the three-month trial period as one in which an employee can become familiar with the work required and can show whether s/he can do that work satisfactorily or not. In only one instance in the recent past did BFC terminate a probationary employee before the three months had elapsed. In that case the individual was hired as a receptionist and it became clear within a month that she could not do the job. Since the reception job is vital to the company, it was felt that the unsuitable person could not be kept on for the whole three-month period.
Counsel for the complainant suggested that the fact that BFC gave Ms. Ornelas two weeks of pay in lieu of notice when it did not need to give any is indicative that it was trying to mask its improper decision. The undisputed evidence before me is that BFC has a long standing policy of giving an employee let go in the first three months of service one week of pay in lieu of notice, and an employee terminated with between 3 months and one year of service, two weeks of pay in lieu of notice. There is nothing improper in an employer choosing to give its employees more than the minimum employment standard, indeed, it is laudable. In this case Ms. Ornelas had been at BFC just over three months, so she received two weeks of pay in lieu of notice.
Counsel for Ms. Ornelas also takes issue with the ROE issued to Ms. Ornelas. He is concerned that there is no separate reference to the two weeks pay in lieu of notice, and he wondered why the copy that Ms. Ornelas tendered in evidence states "VOID". Ms. McLean testified that there is no need to put the two week pay separately as it is actual pay in lieu of having Ms. Ornelas work out a notice period. The employer's copy of the ROE does not contain the "VOID" notation. It seems to me that it should have been Ms. Omelas who should have explained how that word got onto her copy. The employer clearly did not void the ROE. As regards the pay in lieu of notice, I can find nothing untoward about the way in which it was noted. Whether this is an acceptable practice from the point of view of the Employment Insurance office is not a matter of interest to the Board.
Many letters of recommendation were filed on behalf of Ms. Omelas from other companies she had worked for. While they indicate that other employers were satisfied with Ms. Ornelas' performance, they do not assist me in this case.
DECISION
The issue in this case is whether Ms. Omelas was dismissed from her employment because of her pregnancy, or whether her termination was for legitimate reasons. Section 44 of the Employment Standards Act states:
An employer shall not intimidate, discipline, suspend, lay off, dismiss or impose a penalty on an employee because the employee is or will become eligible to take, intends to take or takes pregnancy leave or parental leave.
Ms. Ornelas was terminated at the time that her probationary period came to an end. However, the timing of the termination and her notice to the employer of her pregnancy are so close in time that a question has been raised as to whether the fact of her pregnancy is the reason, or a contributing reason to BFC's decision to end her employment.
Counsel for Ms. Ornelas asked me to look at the evidence and draw the inference that it was only on November 24, 1997, after the three vice presidents found out that Ms. Ornelas was pregnant, that they determined to terminate her employment. He relies on the fact that performance problems had not been brought to Ms. Ornelas' attention, and suggests that if her work had been unacceptable, the employer would have terminated her employment earlier. Furthermore, he suggests that the circumstances of the removal of the new computer from Ms. Ornelas' desk on November 24th is indicative of the fact that the company had planned to keep her until it found out she was pregnant. Finally, counsel relies on the date of the Record of Employment (November 24, 1997) for the proposition that that was the day the decision was reached, and that was the day that Ms. Ornelas advised Mr. Lech of her pregnancy.
Having reviewed the evidence of the five witnesses called by BFC I am of the view that the company terminated Ms. Omelas' employment because it was not satisfied that Ms. Omelas was an employee it wanted to make permanent. Further, I find that BFC made the decision to terminate Ms. Ornelas' employment before it was aware of her pregnancy, so that the fact of the pregnancy did not affect the decision-making process. I accept that the three vice presidents met on the morning of November 19, 1997 and that they decided to terminate Ms. Omelas' employment at that time. It was their decision to make as her immediate supervisors. Their decision was relayed to the Human Resources Manager the next morning, and the process of Ms. Ornelas' termination was set in motion that day. It was not until five days later that Ms. Omelas told anyone at BFC that she was pregnant. Therefore, I am satisfied that BFC reached its decision not to confirm Ms. Omelas as a permanent employee before the company was aware of her pregnancy. I have reached these conclusions because I found the witnesses to be credible, and because I am satisfied that the computer generated records relied upon by BFC are genuine.
Whether Messrs. Bacon, Lech and Iwaskow were dissatisfied with Ms. Ornelas work only because of errors in her typing, or because they just felt that she was not the right person for them because she did not fit, one will never know definitively. The reality is however that from the beginning of her employment Ms. Ornelas knew that she was not going to be a permanent employee of BFC until she had a satisfactory performance review that would be conducted after three months of service. A probationary period is precisely set so that an employer can assess a worker's suitability for a job. During that period it is open to an employer to find the worker unsatisfactory for a variety of reasons including because of a lack of skills, poor work habits, tardiness, or just because the worker does not appear to fit into the particular work environment. It is obviously unacceptable for an employer to dismiss an employee for reasons that may be contrary to human rights legislation. During this period of assessment it may be good human resources policy to bring problems to the person's attention, but there is no requirement to do so. I therefore cannot find that Messrs. Lech, Bacon and Iwaskow's failure to bring their concerns to Ms. Omelas' attention is somehow supportive of the view that they decided to terminate her employment only because they had found out she was pregnant.
I am also not persuaded that simply because BFC did not terminate Ms. Ornelas' employment earlier that I should draw the inference that the quality of her work could not have been the employer's reason for ending her employment. BFC tries to allow an employee the benefit of the full probationary period in which to familiarize him or her self with the work and to show that the person can do what is expected. Ms. Ornelas' job was not of such a critical nature that her errors would have caused havoc and that the employer should therefore have terminated her as soon as it was noted that she made some typographical errors. The only example of an employee being let go after a month on probation was a receptionist. It makes sense that a company may not be able to function with a poor receptionist, and so has to make other arrangements. That is not the same as functioning with an administrative assistant who makes mistakes as her mistakes are subject to review and can be corrected before the finished product is sent out.
There is undisputed evidence that this employer has had many female employees, and one male employee, who have taken pregnancy and parental leave. Those persons have returned to employment at BFC and either continue to work there to this day, or have left at some juncture of their own volition. There is therefore nothing in this company's employment practice history to suggest that it terminates employees because of pregnancy or parental leave issues.
I will address the issue of the new computer. As I have already found that the decision to terminate Ms. Ornelas' employment was made on November 20, 1997, I do not find that the new computer was removed because Ms. Ornelas was found to be pregnant on November 24th and was therefore going to be terminated. It is far more likely that the computers had been ordered sometime before, as Mr. Lech indicated, and that one computer may have been allocated to Ms. Ornelas. The decision to terminate her employment was reached on November 19th. All the computers arrived on November 24th and the installers began to install them where they had understood they were to go. At that juncture Mr. Lech probably realized it made no sense to allocate a new computer to Ms. Ornelas who would be leaving the company by the end of that week, so he had it moved to someone who could use it.
Finally, I am not persuaded that the date of the Record of Employment is indicative of the employer having reached the decision to terminate Ms. Ornelas' employment on November 24th. Ms. McLean was clear that the payroll was transmitted to the bank for preparation on that day, and there is no reason to disbelieve her. I have already found that on November 20th she had been advised to terminate Ms. Ornelas' employment and that she was aware that the termination meeting was to be held on November 27th. The bank prepares the payroll and ROE's once it receives the computer transmission from the company. I am satisfied that that is the reason for the date of the ROE.
For all of the above reasons I find that the Employment Standards Officer erred in finding that Ms. Ornelas was terminated from her employment because of her pregnancy. While it is understandable that both Ms. Ornelas and the Officer may have been suspicious about the timing of the termination, on a thorough review of the evidence and with the benefit of having had viva voce evidence from all of the pertinent players at BFC, I have concluded that BFC reached the decision to terminate Ms. Ornelas' employment before it was aware of her pregnancy.
DISPOSITION
- Order to Pay No. 44324 is hereby rescinded and the Director of Employment Standards is requested to return all monies held in trust with respect to this Order to BFC Construction Group Inc., along with any accrued interest.