1817-99-ES Shelly McMurray, Applicant v. 870860 Ontario Limited, operating as Bracebridge Villa and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 21103492

BEFORE: Mary Ellen Cummings, Alternate Chair.

APPEARANCES: Shelly McMurray and Daniel E. Waters for the applicant; Stephen Bordo for the responding party; Bridget Lynett for the Ministry of Labour.

DECISION OF THE BOARD; August 30, 2000

1. This is an employee appeal of an Officer’s decision not to issue an Order to Pay. Ms. McMurray complained that she was terminated because she had advised the employer that she was pregnant, and intending to take a leave, contrary to section 44 of the Employment Standards Act (the Act). Although the Narrative Report is not at all clear, it appears that the Officer misunderstood some of the central facts. He thought that the identity of the employer changed after Ms. McMurray was terminated, and that she had no right to re-employment with the new employer.

2. It is undisputed that there was no change in employer. There may have been, at some point, a change in corporate identity. In any event, it is agreed that Ms. McMurray was employed at all times by 870860 Ontario Limited, operating as Bracebridge Villa. The style of cause is changed accordingly.

3. Bracebridge Villa is a retirement home in Bracebridge, Ontario. It is one of 11 owned or managed by Steve Bordo, in Ontario and the United States. Mr. Bordo was the only witness for the employer. Michael Ayers, the Administrator of Bracebridge Villa and Ms. McMurray’s “boss” was terminated some time after Ms. McMurray.

4. Mr. Bordo was not in a position to testify about many of the significant issues in dispute, as will be seen in my recitation of the evidence. Ms. McMurray was a credible witness, and a good historian who resisted the pull of self-interest in recounting events. Mr. Bordo was simply not in a position to challenge Ms. McMurray’s evidence, a fact he readily acknowledged.

5. Ms. McMurray was initially hired in 1995 as one of Bracebridge Villa’s 6 to 7 Registered Nurses. The retirement home has space for 95 residents, but its “census” varies between 70 and 90. Other staff include Registered Practical Nurses, Health Care Aides, kitchen staff and a part-time maintenance employee. At the time Ms. McMurray was hired, Michael Ayers was the Administrator and Allison Wait was the Director of Resident Care (also called Director of Resident Services). Ms. McMurray was hired after interviews with both Mr. Ayers and Ms. Wait.

6. In February 1998, Ms. McMurray was asked by Mr. Ayers to replace Ms. Wait as Director of Resident Services while Ms. Wait was absent on short term leave. When Ms. Wait did not return, the offer was extended on a week to week basis, until May 1998, when Ms. McMurray was offered the position on a full-time basis at a salary of $30,000. Mr. Ayers arranged that she could take a 3 month leave of absence from the bargaining unit, the length of the trial period in her new job. It was Ms. McMurray’s understanding that Ms. Wait was being trained to do the Administrator’s job. Ms. McMurray was also told that Ms. Wait would provide her with training, but it did not happen.

7. In her capacity as Director of Resident Services, Ms. McMurray was responsible for assessment and administration of new residents; assessment of hospitalized residents; assessing the quality of care of all residents; talking with families and physicians; completing long term case assessments; supervising and assisting the direct care staff. Ms. McMurray said that she had no role in financial matters, and her only role in hiring and firing was initial interviews of prospective employees.

8. Ms. McMurray testified Mr. Ayers told her that she would get a raise at the end of the trial period, but it did not materialize, supposedly so that she should maintain her place in the bargaining unit. But Ms. McMurray discovered that Mr. Ayers had not arranged an extension so that at the end of her trial period, she had no option but to remain as Director of Resident Services. During that period, no concerns were raised as to her performance, and she continued as Director of Resident Services. She only met with Mr. Bordo on 2 occasions during her tenure and talked with him once a month. At no time did Mr. Bordo raise issues concerning her performance.

9. In June of 1998, Mr. Ayers told Ms. McMurray that Ms. Wait had resigned. But then she was re-employed in August of 1998, as the Director of Marketing. In October of 1998, Mr. Ayers and Ms. Wait wed.

10. On November 24, 1998, Ms. McMurray told both Mr. Ayers and Ms. Wait that she was pregnant. She also told them her due date and that she was going to take a leave. They responded with congratulations.

11. On November 27, 1998, 3 days later, Ms. McMurray’s employment was terminated. The letter is titled “Notice of Layoff” and reads:

This letter will serve as official notice of layoff from employment at Bracebridge Villa, effective November 27, 1998.

You are not required to work during the notice period of three weeks. You will be paid three weeks pay in lieu of notice, vacation pay owing, and benefits will be paid during the notice period.

12. The letter is signed by Mr. Ayers. Ms. McMurray testified that Mr. Ayers gave her no explanation nor did she ask any questions. Ms. McMurray testified that no other employees were laid off.

13. Ms. McMurray believes that she was terminated because she was pregnant and entitled to take a leave. Ms. McMurray recites that there were no performance concerns expressed, and in fact no explanation was given. Ms. McMurray submitted that it is simply too much of a co-incidence that she was “laid off” three days after she announced that she was pregnant.

14. Mr. Bordo denied that Ms. McMurray was terminated because she was pregnant. Mr. Bordo testified that it had been his understanding that Mr. Ayers had recruited Ms. McMurray to replace him as Administrator, a decision with which Mr. Bordo disagreed. Mr. Bordo did not believe that Ms. McMurray had the experience or personal qualities to be successful, a position which Mr. Bordo said he communicated to Mr. Ayers on many occasions. But Mr. Bordo also said that he left Mr. Ayers to manage as he saw fit, since he was responsible for the day to day operations at Bracebridge Villa.

15. However, ultimately, Mr. Bordo testified, when it became clear that Mr. Ayers had no intention of moving Ms. McMurray, Mr. Bordo said he told Mr. Ayers “it’s you or her”. Mr. Bordo testified that Bracebridge Villa was experiencing financial difficulties due to low census, and he could not afford to have two people, (i.e. Mr. Ayers and Ms. McMurray) doing the Administrator’s job. Mr. Bordo has no recollection of when he conveyed this message to Mr. Ayers. Mr. Bordo became aware at some time that Ms. McMurray was pregnant, but he does not recall when, nor how he came to know it. Mr. Bordo was also under the impression that Ms. McMurray would not be terminated but return to the bargaining unit. However, he was not able to shed any light on why this did not happen. Ms. McMurray testified that she was not offered a nursing position.

16. Although Mr. Bordo claimed to be knowledgeable about the day to day activities at Bracebridge Villa, he certainly knew little about the events at issue in this case. To be fair, Mr. Bordo testified that his concern with staffing, for example, was about how much it cost, not about the mix of Registered Nurses and Health Care Aides.

17. But his lack of detailed knowledge is quite striking on a number of points. First, he thought that Ms. McMurray was in the position of Administrator, but she was, in fact, the Director of Resident Care. Not only is that her evidence, but the letter of reference provided to her by Mr. Ayers described her as Director of Resident Services. It is not just a question of job titles; the whole premise offered by Mr. Bordo around why Ms. McMurray had to go was that Bracebridge Villa did not need two Administrators, and Ms. McMurray was not suited for the job. But that was not the job she was doing.

18. Second, Mr. Bordo thought Ms. McMurray was promoted in the summer of 1998, not in February, but admitted that he had no certainty on the dates. Third, Mr. Bordo thought that Ms. McMurray was being returned to the bargaining unit, when, in fact she was terminated.

19. Mr. Bordo testified that he did not always feel that Mr. Ayers relayed a true picture of what was happening, and his personal relationship with Ms. Wait complicated it. Whatever the reason, Mr. Bordo’s lack of knowledge or misapprehension of facts makes his evidence very unreliable. It is not that I particularly disbelieve Mr. Bordo, it is that he does not know enough to be helpful.

20. Most important, Mr. Bordo did not terminate Ms. McMurray: Mr. Ayers did. Only Mr. Ayers knows why he terminated Ms. McMurray. More specifically, only Mr. Ayers knows why he terminated Ms. McMurray three days after she announced her pregnancy and intention to take a leave.

21. The jurisprudence establishes that where an employer terminates an employee shortly after she announces her pregnancy and intention to take a leave, there is a heavy onus on the employer to explain the seemingly inescapable conclusion that the employee was terminated for reasons which violate the Act. In Eldon Inc. (c.o.b. as Robin's Donuts), [1998] O.E.S.A.D. No. 324 at paragraph 19, I wrote:

As adjudicators have said in a number of decisions, where an employer terminates an employee shortly after she advises that she is pregnant, the employer bears a significant burden to establish that the termination is not related to the pregnancy. Since employers rarely come out and tell employees they are being terminated because they are pregnant, an adjudicator must necessarily look at all the surrounding circumstances. And a termination following closely on the heels of an announcement of pregnancy is a pretty suspicious circumstance. The legitimacy of the termination becomes even more doubtful when the purported reasons, in this case, poor performance, existed some time prior to the employer knowing about the pregnancy, but it is only after the pregnancy is announced that the employer takes action about the poor performance.

22. In the case before me, Mr. Bordo has not met that burden. The vague and seemingly timeless concerns about Ms. McMurray’s performance are not enough, in the face of no testimony from Mr. Ayers and the speed with which Ms. McMurray’s termination followed her announcement of her pregnancy and planned leave. I conclude that Ms. McMurray was terminated contrary to section 44 of the Act.

Remedies

23. Pursuant to section 45 of the Act, I have the discretion to order the reinstatement of Ms. McMurray. However, she testified that she does not wish to be reinstated. In October of 1999, Ms. McMurray found employment at a nursing home in Bracebridge. She is working for a higher wage, but on a part-time basis.

24. Typically, the Board would award damages under four heads: loss of wages (including vacation pay); expenses for job search; loss of reasonable expectation of continued employment and emotional pain and suffering. I will set out my comments on each in turn.

Loss of wages (including vacation pay)

25. Ms. McMurray testified that it was difficult to find work when she was pregnant because, in a small community, the circumstances of her termination became widely known. I am satisfied that Ms. McMurray is entitled to be paid her regular wages and any vacation pay thereon, for the period December 1, 1998 to July 1, 1999, the time Ms. McMurray testified, that she would have begun her leave. That is a period of 32 weeks, of which Ms. McMurray has already been paid for 3. Therefore she is entitled to 29 weeks at her weekly salary of $576.93 plus 4% vacation pay thereon, for a total of $17, 400.21 for the loss of wages up to her leave.

26. It is not at all clear to me whether there is any wage loss for the period after her leave, because although Ms. McMurray is working fewer hours, her pay is higher. As Ms. McMurray testified, it depends on how many shifts she gets. In any event, I am satisfied that the award of the loss of wages for the long period prior to her leave is adequate, and I decline to award more.

Expenses for job search