832746 Ontario Limited operating as Studio 9 v. Charlene Fuller and Ministry of Labour
File No.: 0012-00-ES Employment Practices Branch File No.: 53000777
Before: Brian McLean, Vice-Chair.
Decision of the Board: December 7, 2001
1This is an employer appeal of an Order to Pay issued by an Employment Standards Officer.
2The Officer issued the Order to Pay after finding that the employer violated the pregnancy leave provisions contained in section 44 of the Employment Standards Act (the "Act") when it terminated the employment of the responding party Ms. Fuller.
3In an interim decision dated August 3, 2001, the Board made certain findings of fact after hearing the parties' evidence and representations. Most importantly, the Board found that the employer terminated the employment of Ms. Fuller, who was approximately seven months pregnant at the time, because the employer did not want a pregnant woman (Ms. Fuller) working in his bar because he found it aesthetically unpleasant and believes it would be bad for business.
4Given the Board's findings of fact, the Board sought submission from the parties regarding whether the employer's conduct constitutes a violation of section 44 or any other provision of the Act.
5Submissions have been filed. This is the Board's decision regarding that issue.
The Arguments
6The Ministry of Labour submits that there is a violation of section 44 in the circumstances of this case. The Ministry's primary argument is that section 44 prohibits an employer from penalizing an employee because such employee is eligible for a leave. Ms. Fuller was eligible to take pregnancy leave and she was eligible because of her pregnancy. This conduct constitutes a violation of the Act because Ms. Fuller was terminated because of being pregnant. The Ministry relies on Wah Lung Lebel (Canada) Inc. [1998] O.E.S.A.D. No. 292 and Eldon Inc. (c.o.b. Robin's Donuts) [1998] O.E.S.A.D. No. 324 in support of its position.
7The employer argues that since Ms. Fuller did not know she was pregnant and did not advise the employer of that fact, the protections afforded by the Act do not apply. The employer relies on the "findings of fact" of the Board's interim decision. Those findings of fact are as follows:
Based on my conclusions regarding credibility, I find that Ms Fuller went to ask Mr. Bulut for a bartending job in the first week of February, 1999 and that she started work as a bartender shortly thereafter. If Ms Fuller was pregnant at that time, she would have been in the earliest stages. I am satisfied that she did not know that she was pregnant and therefore could not have advised Mr. Bulut of that fact. The fact that she was pregnant (even assuming that she was) was not the reason she was given the bartending position.
I am also satisfied that Mr. Bulut did not want a pregnant woman in his bar. His attitude towards pregnant women was revealed by the statement he made repeatedly in evidence that he would not have a woman give birth behind the bar. It is apparent that Mr. Bulut thought that having a pregnant woman behind the bar was bad for business.
Furthermore, I find that Mr. Bulut terminated Ms Fuller's employment because he did not want a woman in advanced pregnancy in the bar because he believed it was not aesthetically pleasing.
Decision
8Section 44 of the 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.
9The Board first addresses the employer's submissions. To the extent the employer asserts that the Board found as a fact that Ms. Fuller and the employer did not know Ms. Fuller was pregnant at the time of the termination of her employment, the employer misapprehends the Board's decision dated August 3, 2001. The "findings of fact" portion of the Board's interim decision related only to the issues that were in dispute. There was and is no dispute that at the time of the termination of Ms. Fuller's employment, Ms. Fuller and the employer were aware that Ms. Fuller was pregnant. Indeed, the employer's entire case was predicated on a joint understanding of the fact that Ms. Fuller was pregnant at the date of her termination and before. The employer's position cannot succeed.
10The Board next turns to the Ministry's argument. The Board agrees with the Ministry that it must start from the proposition that, as benefit conferring legislation, the Act must be interpreted in a "broad and generous" manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant (see, for example, Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27).
11There is little doubt that the Ministry's position is supported by a literal reading of section 44 of the Act. Ms. Fuller's employment was terminated at a time when she was eligible to take pregnancy leave. The fundamental basis of her eligibility was her pregnancy and her length of service with the employer.
12I also find that the Ministry's position is supported by the way in which the pregnancy processes have been amended by the Legislature from time to time.
13Pregnancy protection have a long and somewhat unusual history in the Employment Standards Act. Pregnancy protections were first introduced into the Act, in 1972 (S.O. 1972) c. 120). Section 13a(1) of the Act in place at that time provided "An employer shall not terminate the employment of an employee because of her pregnancy ...".
14In 1974, the pregnancy provisions were amended again. The opening line of the new section 35 states: "No employer shall terminate the employment of or lay-off an employee who is entitled to a leave of absence ...".
15The 1990 amendments, which brought in the current section 44, expanded the Act's protections further by including a ban on improper employer conduct apart from termination of employment. Under the 1990 amendments, all employer conduct which penalizes an employee, such as demotions, suspensions or reduction of pay are also prohibited.
16In order to find that the employer's actions in this case are not covered by section 44 of the Act, the Board would have to determine that in 1990 when the legislature amended the Act, it intended to remove the protections for pregnant employees contained in section 13a(1) and section 35 of the predecessor Acts. This seems highly unlikely. I find it much more likely, considering the words of the various provisions as they existed from time to time, that the legislature in fact intended to broaden the protections by, in 1974, protecting employees from termination of employment because they were eligible for and took a leave, and in 1990 by protecting the employee from any adverse consequences for the same reasons.
17It is clear Ms. Fuller could have filed a complaint under the Ontario Human Rights Code in respect of the employer's conduct rather than commence an application under the Act. Section 5(1) of the Code protects employees from discrimination on the basis of, among other things, sex. "Sex" is defined by section 10(2) of the Code to include "the right to equal treatment without discrimination because a woman is or may become pregnant". It is clear that the Code protects women against employer actions, like the ones undertaken by the employer in this case because of the changes in her appearance which come with pregnancy. In other words, it is absolutely certain that Ms. Fuller could have filed a complaint with the Ontario Human Rights Commission and given the facts of this case it is almost certain she would have been successful. However, the Board does not have jurisdiction over the Code.
18The issue therefore is whether there is an overlap in these circumstances between the protection afforded by the Code and those of the Act that does or may prevent the Board from determining this application. The primary purpose behind the amendments to the Act now contained in sections 34 to 45 of the Act was to ensure that pregnant employees and their spouses could take pregnancy and parental leaves, that their jobs would be protected during such leaves, and that they would not be penalized because they took a leave.
19Since this application does not directly concern an employee's right to take a leave there is an argument that the Board ought not to deal with this application because it is more appropriately dealt with under the Ontario Human Rights Code. In Meridian Magnesium Products Limited, [1996] OLRB Rep. Nov./Dec. 964, the Board accepted a similar argument in relation to a complaint of sexual harassment in the workplace which was alleged to be a safety issue in an application under the Occupational Health and Safety Act. The Board held that while it might have jurisdiction to hear the matter as a health and safety complaint, it was more appropriate that the matter be dealt with as a human rights issue under the Code. The Board stated at paragraph 155, 165 and 166:
It appears to me that the same kind of approach is advisable where, as here, the Legislature has so clearly designated the Commission as the primary forum for dealing with problems of this kind. If anything, there is a stronger case for deferral where the rights in issue are so clearly addressed, where the alternative forum has its own statutory framework, where the statutory remedies appear to be broader than those this Board could give, and where the OHSA jurisdiction is debatable. In this respect, the situation here is not like deferral to a privately negotiated process like grievance arbitration. Rather, the Board is recognizing the role of another statutory body with its own specific legislation and public mandate in this area. And while I do not think that the "practicalities" of the situation should necessarily govern the result, neither should the Board take a parochial approach and ignore the problems of (potentially) overlapping jurisdictions.
More fundamentally, though, it is evident that the issues in dispute in this matter are central to the jurisdiction of the Commission and/or a board of inquiry under the Code; and while there is no formal policy of comity or deferral as between administrative tribunals, I think that, from a public policy point of view, it is relevant to consider whether it appears that one or the other of them was intended by the Legislature to deal with the problem in question. Where the legislative choice is clear, that choice should be respected – both by other statutory tribunals and by potential litigants. Thus, in my view, it would not matter in a case like this one, whether or not a complainant had filed a "human rights" complaint (see the remarks of the Board in Gazit above). I acknowledge that it is possible to conceive of situations of significant statutory overlap, but in my view, where the issue is essentially a "human rights problem" of the kind that the Code was designed to deal with, that is the framework and forum within which an aggrieved employee should seek a remedy.
In the circumstances, it is my view that it is appropriate to defer to the procedures of the Code and the Commission, even if they are sometimes slow and there is some argument that the situation could be addressed under the OHSA. In my view, there are no compelling policy reasons for the Board to initiate an inquiry where, as here, the subject matter of the case is substantially (if not completely) covered by the Code, and those matters are central to the jurisdiction and expertise of the tribunal(s) established under the Code to deal with them. To reiterate: remedying gender discrimination and harassment (including reprisals) is the work of the Human Rights Commission and boards of inquiry under the Code – not the Ontario Labour Relations Board under the OHSA.
20Unlike the claim that sexual harassment violates the Occupational Health and Safety Act which was before the Board in Meridian Magnesium, the Employment Standards Act and the Ontario Human Rights Code are equally concerned with protection of pregnant employees. In addition, unlike the situation before the Board in Meridian Magnesium, while the Code's protection are arguably broader in some areas than those contained in the Employment Standards Act, the Act's protections are arguably broader in others (for example the provision of a specific leave). There is therefore no reason for the Board to defer this complaint under the Act to the Code.
21Furthermore, the Board cannot ignore how the termination of Ms. Fuller's employment affected her leave rights under the Act. Because of the termination of her employment, Ms. Fuller lost the right to set the date at which she would cease work, she lost the right to determine how much time she would spend with her child before returning to work and she lost the right to be reinstated to her employment. The termination of Ms. Fuller's employment caused the termination of her leave rights under the Act and because the termination of her employment was related to her pregnancy I find that the employer violated section 44 of the Act.
22For all of the foregoing reasons the application is dismissed.
Disposition
23The Director of Employment Standards is directed to pay the following:
To Ms. Fuller $9,784.73
To the Government of Ontario Consolidated Revenue Fund $978.47
"Brian McLean"
for the Board