0012-00-ES 832746 Ontario Limited operating as Studio 9, Applicant v. Charlene Fuller, and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 53000777
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: James Battin and Nicholas Bulut for the applicant; Charlene Fuller, Steve Jackson and Donna Barker for Charlene Fuller; Murray Klein for the Ministry of Labour.
DECISION OF THE BOARD; August 3, 2001
This is an appeal of an Order to Pay issued by an Employment Standards Officer.
The Board held a hearing in Toronto on May 8, 2001 to receive the evidence and representations of the parties. At the commencement of the hearing, counsel for the Ministry of Labour withdrew from participation in the hearing. The Ministry maintains its status as a party.
This case involves a claim by Ms Fuller that her employment was terminated by 832746 Ontario Limited operating as Studio 9 (“Studio”) because she was pregnant. That claim was accepted by the Employment Standards Officer following her investigation into the matter. The Officer ordered the following pursuant to section 44 of the Employment Standards Act:
Direct wage loss $13,770.80
Wage loss incurred in locating alternate employment $ 2,399.60
Vacation Pay thereon $150.83
An amount for loss of job $1,963.50
Emotional Pain and Suffering $1,500.00.
The employer called one witness, Nicholas Bulut, the owner and manager of Studio 9, in support of its position that Ms Fuller quit her employment and that the employer’s treatment of her was not adversely affected by her pregnancy.
Studio 9 is an adult entertainment establishment and hotel. It employs bartenders, servers and hotel staff. These employees are paid an hourly wage plus tips. The employer’s policy is that tips go to the person who receives them and the employer does not keep track of how much each employee earns in tips. In addition, Studio 9 engages the services of exotic dancers, primarily women but occasionally men, to dance on the establishments’ stages. For these services, the female dancers (there was no evidence led about the conditions under which male dancers are hired) are paid a flat fee of $45 or $55 for a seven‑hour shift. In addition, the dancers are entitled to make private performances at patrons’ tables or in the establishment’s “VIP lounge”. The going rate for this activity is $10 per dance. The dancer keeps the full amount. As with tips, Studio 9 was unaware, except in a general sense, how much each dancer made for private performances on a given night.
Ms Fuller began working at Studio 9 as a dancer. The evidence about when Ms Fuller actually started dancing was quite unsatisfactory. However, her start date (as an independent contractor) appears to have been 2 to 5 months before February 1999. Mr. Bulut testified that in early 1999 Ms Fuller came to him upset and in tears. She advised Mr. Bulut that she was pregnant and asked if she could do other work. Mr. Bulut testified that Ms Fuller was starting to show her pregnancy at this time. Mr. Bulut testified that he felt sorry for her and agreed to train her as a bartender. Mr. Bulut testified that although he was agreeing to employer her, he would not allow her to work until the end of her pregnancy. As Mr. Bulut repeatedly and emphatically stated in his examination-in-chief, he “did not want to have a baby delivered behind the bar”. Ms Fuller was a quick learner so that by February, 1999 she was taking a regular shift behind the bar. Mr. Bulut stated that she was a “very good” bartender.
According to Mr. Bulut, there were no issues with Ms Fuller for some time. He allowed her to sit on a bar stool when she was not working and she was able to get assistance with lifting cases of beer which was the most physically demanding part of her job. However, in the summer of 1999 he grew increasingly concerned about her health. He also believed that her pregnancy was bad for business because she could not do the job she needed to do. As a bartender Ms Fuller was required to stand and walk a great deal and on those occasions when there was no one to assist, Ms Fuller might have to lift and carry cases of beer. Although Mr. Bulut’s testimony on these events was somewhat unclear, it appears that he had a discussion with Ms Fuller about his concerns. He suggested to her that she have her midwife call him to ensure that she was fit to perform the duties of the position. Mr. Bulut testified that he had a discussion with Ms Fuller’s midwife and that she advised him that Ms Fuller could work as long as she did not have to lift.
Mr. Bulut testified that sometime later he had a conversation with Ms Fuller in which he reiterated his concerns and advised Ms Fuller that the position required her to lift. He therefore advised her it was probably time for her to stop working. Ms Fuller advised Mr. Bulut that she was not yet in a position to receive employment insurance benefits and she asked to continue to work. Mr. Bulut refused, but he testified that he offered to pay Ms Fuller and she could stay at home. He testified that she refused his offer because she would have to pay taxes on the money and would lose her tips. So, rather than accept his offer, she left the premises and did not return. He did not hear from her until she filed a complaint with the Employment Standards Branch.
Under cross-examination, Mr. Bulut acknowledged that he had received a letter from Ms Fuller’s midwife. That letter, dated July 13, 1999 was introduced at the hearing and stated that Ms Fuller was capable of performing her bartending duties.
Mr. Bulut also testified that he had other pregnant employees at the bar, including one dancer and one hotel employee. He said that he believed that Ms Fuller was 7 to 7 1/2 months pregnant when he told her to stop working. Under cross-examination, he confirmed that in the first week of February, 1999 she advised him that she was pregnant and was showing.
Ms Fuller’s version of events was substantially different than Studio 9’s version. She testified that she had been a dancer at Studio 9 on and off prior to the date at which Mr. Bulut purchased the establishment. She knew someone who worked at Studio 9 and she told her that since Mr. Bulut took over, it was a good place to work. She went to Mr. Bulut and he agreed that she could dance. Ms Fuller testified that she had been back at Studio 9 for about 3 weeks when her friend told her that they were looking for bar staff and if she was interested she could put a word in for her with Mr. Bulut. Ms Fuller was interested and after speaking to Mr. Bulut, he agreed to try her out. She trained with another bartender for a couple of weeks and after that, she was placed on the schedule. Ms Fuller testified that at no time did she tell Mr. Bulut that she was pregnant. At that time, the first week of February, she either was not yet pregnant or did not know about it.
Ms Fuller testified that she became aware that she was pregnant in the first week of March. She did not tell Mr. Bulut about her pregnancy until late May or early June when she was about 4 months pregnant and she was starting to show. She first started seeing her midwife in April. She was concerned about the amount she had been working and she spoke to Mr. Bulut about it. After their conversation, she had her midwife send a letter to establish that she was fit to work to him.
She also had a very different version of what occurred at the end. She testified that Mr. Bulut repeatedly asked her when she was going to stop working. She told him that she was feeling good and was having no difficulty. She told him that she was getting assistance with lifting cases of beer so there was no concern with that. He told her that it was not aesthetically appropriate to have a pregnant woman behind the bar. She told him that she was getting better tips because of it. Ms Fuller told him that she intended to work into October. He told her that was not acceptable. Finally Ms Fuller asked him to permit her to work for 100 more hours to enable her to accumulate sufficient hours to be entitled to employment insurance benefits. He refused but instead offered to keep her on the books and pay her, but she would have to sign her paycheques back to Studio 9. That scheme would enable her to get EI, with Mr. Bulut being out of pocket only the small amount for remittances. She declined.
Shortly after their discussion, Mr. Bulut called Ms Fuller at home on August 22, 1999. He told her that he could not have a pregnant bartender behind the bar. He told her not to come in anymore. Her child was born on November 2, 1999.
Under cross-examination, Ms Fuller acknowledged that she had not made any serious efforts to find another job after her employment terminated at Studio 9. She said that she just called a few friends to ask if they knew of anything. She did not try harder because she was 7 months pregnant and did not think it likely that anyone would hire her.
The final witness for Ms Fuller was Donna Clarke. She is a friend of Ms Fuller and worked for Studio 9 as a hotel administrator. She did the books and other office tasks. She had started with Studio 9 as a dancer and she got along well with Mr. Bulut. He hired her to work in the office after she became pregnant.
Ms Clarke testified that in February she told Ms Fuller that they were looking for bartenders and told Mr. Bulut that Ms Fuller might be good for the job. Ms Clarke testified that Ms Fuller was not pregnant at that time. When Ms Fuller learned that she was pregnant, she told Ms Clarke. For some reason, Ms Clarke almost immediately divulged Ms Fuller’s secret to Mr. Bulut and they waited for Ms Fuller to formally advise Studio 9 that she was pregnant.
Ms Clarke testified that she and Mr. Bulut frequently talked about Ms Fuller’s pregnancy. Mr. Bulut said that he could not have pregnant people in the bar. He wanted Ms Clarke to fire Ms Fuller.
Ms Clarke refused to follow Mr. Bulut’s wishes. Eventually, Ms Clarke and Mr. Bulut had a falling out and Ms Clarke left the employ of the hotel. However, she was present at the bar in August 1999 because she was working on renovations to the hotel. She testified that at that time Mr. Bulut continued to complain to her about the fact that he had a pregnant employee in the bar.
Credibility
- Since the two stories presented to the Board were so different, it is obvious that someone either has very bad memory or is lying. In assessing the credibility of the witnesses I have taken into consideration their demeanour on the stand, their ability to recall facts, the way their story seemed to fit, how well they held up under cross examination and whether their story makes sense under all of the circumstances. I have concluded that none of the witnesses was telling the truth completely. However, on the whole I am satisfied that the least credible witness was Mr. Bulut for the employer. There are two aspects to his testimony that I found jarring. First was his claim that Ms Fuller was “showing” in February 1999. at the time she came to Mr. Bulut to ask for a non-dancing job at the bar. Since Ms Fuller had her baby on November 2, 1999, it is obvious that she could not have been “showing” in the first week of February, 1999 when she would have been pregnant for at most one month. I also find not credible Mr. Bulut’s claim that he offered to pay Ms Fuller to sit at home. Considering that Studio 9 was not necessarily meeting its payroll on time, I do not believe that Mr. Bulut would give away money to Ms Fuller as he
claimed.
Findings of Fact
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
Despite my findings of fact, it is not clear that the employer violated the Employment Standards Act. The employment standards officer found that Studio 9 violated section 44 of the Act. That section reads as follows:
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.
Section 44 of the Act appears not to be concerned with the protection of pregnant employees per se. It appears to exist to protect the exercise of the pregnancy and parental leave rights which are contained in the Act.
The difficulty is that the reason Studio terminated Ms Fuller were completely unrelated to her right to take a leave. Studio 9 terminated Ms Fuller’s employment because Mr. Bulut did not want a pregnant woman in its establishment because of her appearance. While such conduct is clearly protected by the Ontario Human Rights Code, the Board does not have jurisdiction over the Code. It is not at all clear that the facts of this case give rise to a breach of the provisions of the Employment Standards Act.
The parties did not address this issue at the hearing. In addition the Ministry was not present to make submissions. Under these circumstances the Board will give the parties a further opportunity to make representations.
The parties shall have three weeks from the date of this decision to file submissions regarding whether the facts of this case constitute a breach of the Act. All parties shall have one week from that date to file responses to the submissions filed by the other parties.
I am seized.
“Brian McLean”
for the Board