0287-00-ES Lesleigh McConnell, Applicant v. Arva Industries and Ministry of Labour, Responding Parties.
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Robert Haas, Lesleigh McConnell, Rhonda Andress and James Williams for the applicant; Lorraine Por, Stephen McCulloch, Barry Harling and Ann Arrand for the responding party; Mark Alchuk for the Ministry of Labour.
DECISION OF THE BOARD; May 31, 2001
This is an employee request for review of the decision of an Employment Standards Officer denying her claim. It is made pursuant to section 68 of the Employment Standards Act (the “Act”).
As both the applicant and responding parties were represented by counsel at the hearing, the Ministry of Labour indicated that it would not be attending at or participating in the hearing.
Ms. McConnell had made a claim to the Ministry of Labour that she had been terminated from her employment with Arva Industries (“Arva” or the “employer”) as a result of her announcement of her pregnancy. By a letter dated April 3, 2000 the Employment Standards Officer denied Ms. McConnell’s claim, found that there had been no breach of section 44 of the Act, and that the claimant’s employment had been terminated due to poor attendance and her inability to work full-time hours.
Two days of hearing were held in this matter, and the parties called six witnesses. All of the witnesses gave their evidence to the best of their recollection, and where there were discrepancies in the evidence I have indicated whose version I preferred. The parties filed seven documents as exhibits in the proceeding. In reaching my decision I have considered all of the evidence, the submissions of the parties, and the caselaw.
The Facts
The branch of Arva Industries that the applicant worked at is based in St. Thomas and manufactures toolboxes. It is a small operation employing between six and seven persons. The applicant worked as a part of the production line, and was a tig welder.
The toolbox manufacturing arm of Arva initially began as a company known as Augustan Tool Box (“Augustan”). It was owned by Steve McCulloch, but was financed and underwritten by the owners of Arva. Augustan began operations in late 1997 or early 1998. It had space in a corner of the Arva building in St. Thomas.
Ms. McConnell is a 24 year old woman who lives in London and worked in St. Thomas at Augustan, and then later at Arva. She has a seven year old boy, and a second son born on July 18, 2000. When she first moved to London in 1996 Ms. McConnell worked at a company called PCI. Her supervisor at PCI was Steve McCulloch and her lead hand there was Barry Harling. She left PCI in 1998.
As noted above, Steve McCulloch left PCI and started up his business, Augustan, in late 1997 or early 1998. Based on his experience working with Ms. McConnell at PCI, he hired her in January 1998 as a tig welder at his new company because he believed she was a very good worker. It is noteworthy at the outset that there is no dispute in this proceeding that Ms. McConnell was an excellent worker, both in terms of the quality and quantity of her production. At Augustan Barry Harling, who had also left PCI to join the new venture, supervised Ms. McConnell. She worked from 7 a.m. to 3 p.m. and for any hours that were required.
Augustan ran into financial troubles in the summer of 1999, and was put into receivership towards the end of August or beginning of September of that year. On September 24, 1999 Ms. McConnell was laid off, along with other workers. Arva, who was a secured creditor, took over Augustan and reassessed the operation. Mr. McCulloch was retained as the General Manager, and Barry Harling stayed on in charge of production. Between them the two men slowly restarted the production line, hiring only as needed.
Ms. McConnell kept in touch with Steve McCulloch and Barry Harling following the layoff. Mr. Harling telephoned her in November 1999 to ask her if she was interested in returning to work as Arva had taken over Augustan and would continue to manufacture tool boxes. She returned to work on November 9, 1999. At that time Ms. McConnell had discussed with Barry Harling that she could no longer start at 7 a.m. as her son could only be dropped at his school at 7:30 a.m., and she then had to drive from London to St. Thomas to get to work. Mr. Harling, with Mr. McCulloch’s consent, agreed that Ms. McConnell could start work at 8 a.m. to accommodate her childcare responsibilities. The normal shop hours were 7 a.m. to 3 p.m.
According to Ms. McConnell, during her tenure with Augustan no person in management ever brought to her attention any concerns regarding her attendance at work. However, Mr. McCulloch testified that he and Mr. Harling had met with Ms. McConnell at some point and that she had signed a written warning about her attendance. Mr. McCulloch claims that that document cannot now be found. There is also no other documentary evidence before me that would indicate that she had any attendance problems while she worked for Augustan. Furthermore, the evidence discloses that Mr. McCulloch and Mr. Harling asked Ms. McConnell to return to work after she had been laid off for two months following the Augustan shut down. There is simply no cogent evidence before the Board that Ms. McConnell had any attendance problems prior to her recall to Arva in November 1999 nor is there any evidence to support a finding that she had received a written warning about her attendance before the September 1999 layoff. In any event, Messrs. McCulloch and Harling, who managed both Augustan and Arva, were apparently quite happy to hire her back to Arva, suggesting that they had no problems with her work habits. They even went so far as to reach a new arrangement regarding her hours in order to accommodate her need to take her child to school and therefore start one hour later than the rest of the shop employees. None of this suggests that the company was dealing with a problem employee.
When she returned to Arva Ms. McConnell believed she was going to be working a 40-hour week, starting at 8 a.m. and working till 4 p.m. However when she first started working she was given fewer hours to let the new owners see the quality of her work. In a few days she was told that she was going to be working full-time. There were fewer staff present at Arva, but the work was the same. The production facility was still in the Arva plant but there was a different time clock at one end of the Arva plant. For the first few days Ms. McConnell worked till 4 p.m. However, Arva was of the view that it was unsafe for her to continue to work after the plant had shut down at 3 p.m. and most employees had left the shop floor. She was told that she could only work till 3 p.m. Ms. McConnell was upset that she would not be able to work full-time hours and asked if she could at least work till 3:30 p.m. Her request was denied because of the perceived safety risk. Despite the reduced hours there is no evidence that Ms. McConnell’s production level went down or was a problem for the company.
The process of manufacturing the tool boxes is as follows. The metal raw material is shipped to the company, which uses a CNC machine to cut and shape the metal pieces. One person is responsible for the cutting and shaping process. The third step in the production line is to tack the components together, weld them, and to weld any components going into the boxes. This was Ms. McConnell’s work. From there the boxes go to the assembly area where hardware is put on, and on to quality control to check each box. The tool boxes are finally packed and shipped out.
In the middle of December 1999 Ms. McConnell believed she might be pregnant and her doctor confirmed that on January 11, 2000. She informed Barry Harling that she was pregnant on January 12, 2000, and he then told Mr. McCulloch. It appears that Mr. Harling congratulated her on the news, and Mr. McCulloch asked Mr. Harling to look up the Material Safety Data Sheets (MSDS) to ensure that the compounds that Ms. McConnell was working with were safe for a pregnant woman. Later that day Ms. McConnell apparently spoke to a woman who works in the Purchasing Department at Arva. That woman advised Ms. McConnell that Mr. McCulloch had talked to her and asked her to call someone to find out if it was safe to have a pregnant woman in the workplace. The woman apparently indicated to Ms. McConnell that she should be a bit concerned for her job. The Board has not relied on this evidence for the truth of its content, but only for the purpose of establishing why Ms. McConnell took the action she did following this alleged conversation.
On January 13, 2000 Ms. McConnell had a doctor’s appointment which she had made the day before because she was feeling major discomfort. She called Arva on January 13th at 7 a.m. and spoke to Mr. Harling to tell him of the appointment. According to her recollection Mr. Harling did not ask her to bring in a doctor’s note, but she said she would try to get one. Ms. McConnell says she made this offer as she was concerned about her job at the time. At around 8 a.m. the doctor’s office cancelled the appointment, so Ms. McConnell went into work late. She was very upset about what she had heard the day before and proceeded to have a heated discussion with Messrs. McCulloch and Harling regarding whether she was going to be laid off and regarding her rate of pay.
Mr. McCulloch recalls the January 13th meeting and that Ms. McConnell was very upset when she came in. He recalls it much as does Ms. McConnell, and that she did not have a doctor’s note to present to the employer.
Mr. Harling has a completely different recollection about when this event occurred. According to his testimony it occurred on February 1, 2000 and was the proverbial straw that broke the camel’s back for him. He testified that when she had called in early that morning to tell him about the doctor’s appointment, he had asked Ms. McConnell to bring in a doctor’s note as he wanted to be assured that she could work. When she came into work and said the appointment was cancelled and that she did not therefore have a doctor’s note, he felt she was lying because she had wanted the day off and had been caught out. He believes he terminated her employment the next day.
The Board accepts Ms. McConnell and Mr. McCulloch’s version of the events of January 13, 2000. Their versions were consistent and their evidence as a whole was generally reliable. Mr. Harling indicated on a number of occasions in giving evidence that it had all been a long time ago and he did not really remember. In order to accept Mr. Harling’s version that the event took place on February 1, 2000 the Board would have to find that Ms. McConnell and Mr. McCulloch were wrong in their recollections and there is simply no reason based on what is before me to do so.
On January 13th Ms. McConnell went to Mr. McCulloch’s office and spoke to both him and Mr. Harling. She asked if she was going to be laid off. She told them the gist of the conversation she had had with the woman in Purchasing but did not disclose the name of the person. Mr. McCulloch apparently became upset, and guessed who she had spoken to. Ms. McConnell indicated she was concerned about her job and was assured that her job was safe.
Mr. Harling testified that he had always been very happy with Ms. McConnell’s welding work as she was a very fast and good tig welder. He tried to get her a raise in wages by speaking to Mr. McCulloch a number of times. It appears that he had all but promised the applicant a raise, and in December 1999 started to pay her $20 in cash every week from his own pocket. On January 13, 2000, when Ms. McConnell asked Mr. McCulloch why the raise had not yet gone through on the payroll she learned that Mr. Harling had been paying her the extra money himself and that no raise had been authorized.
On January 13th Ms. McConnell also told Mr. McCulloch that her doctor had suggested that it would be a good idea for her to work with a respirator so that she would not inhale fumes as she did her welding. Two days later the company got her a painter’s mask, but it was not effective. Arva then got her a respirator. As the mask on the respirator was too big, the company got her a smaller mask and filters for the respirator. The applicant asked for a thicker rubber mat to ease back pain during her pregnancy, but that was not purchased.
It is Ms. McConnell’s undisputed evidence that she had good working relationships with her co-workers at Arva. After she told them she was pregnant and may need help with lifting they had agreed to help her.
On February 1, 2000 Ms. McConnell was sent home because there was not much work to be done and because she had complained that she was suffering from a severe headache. On her return on February 2nd she noticed on the job sheet that she was marked as being “laid off”. She asked Mr. Harling about it and he said that was just a mistake and it should have said “day off”. Ms. McConnell went about her work. At 3 p.m. Mr. Harling handed her a Record of Employment (“ROE”) and a letter of termination.
The ROE states that Ms. McConnell was being terminated because she was “not available for full-time work; poor attendance; not available during regular shop hours”. The letter of termination, signed by Mr. Harling as the Production Supervisor, gives no reason for the termination. She was paid two-weeks pay in lieu of notice and whatever vacation pay she was entitled to at the time. Her rate of pay at Arva was $12.50 per hour.
Mr. Harling testified that he had had a discussion with Mr. McCulloch about Ms. McConnell. He claimed that he could not go on “like this”, with her lateness, leaving early, or being off sick and calling in one hour before a shift. He claims he needed someone who could be at work 40 hours a week and Ms. McConnell could not. That was why he and Mr. McCulloch decided to terminate her employment. Mr. Harling conceded that he had never asked Ms. McConnell to work 40 hours a week prior to reaching the decision to terminate her employment. Further, he had never told her that her job was in jeopardy unless she could work 40 hours a week. Mr. Harling also admitted that he had never told Ms. McConnell that she might lose her employment if she did not improve her attendance.
According to Ms. McConnell she had never been advised that there was a problem with her attendance or that the company wanted her to work full-time hours by working 7 a.m. to 3 p.m. She indicated that had she been told that her job was on the line because she could not work regular shop hours she would have tried to make other arrangements to have her son taken to school. However, she did not know there was a problem until she saw the ROE. In any event, according to Ms. McConnell, she was a fast worker and could produce enough work daily that her hours had no negative effect on anyone else on the production line.
Both Messrs. McCulloch and Harling indicated they were concerned with Ms. McConnell’s persistent lateness and had brought their concerns to her attention. At best it appears that Mr. Harling had given Ms. McConnell “pep talks” to get her to come in on time. It is undisputed that the Arva time clock had been set 15 minutes ahead of what the time really was. Mr. Harling claims that he knew nothing about that but only learned about it after Ms. McConnell had been fired. To his mind he had made an arrangement with her that she could start at 8 a.m. in order that she could drop her son at school at 7:30 a.m. in London, and then could drive to St. Thomas. He meant 8 a.m. by the Arva time clock. Thus, what he wanted her to do was to drop her son at his school at 7:30 a.m. in London and to be at work in St. Thomas by 7:45 a.m. There is no evidence to suggest that that is what anyone at Arva ever told Ms. McConnell, and in any event that would have been physically impossible given the distance to be travelled.
A review of the time cards indicates that on six out of 44 days worked for Arva Ms. McConnell punched in at work at or before 8 a.m. On 22 of the 44 days worked she punched in between 8:07 and 8:14 a.m. In other words, in real time she was at work by 8 a.m. for a total of 28 out of 44 days. For a further 10 days she punched in between 8:16 and 8:29 a.m., which in real time meant she was at work by 8:15 a.m.
On the remaining 6 days she worked she punched in between 8:42 and 11:30 a.m. Ms. McConnell had explanations for most of the days on which she is alleged to have come into work particularly late. Her evidence was not challenged by Mr. Harling or Mr. McCulloch as neither of those men had a good recollection of what had taken place on any given day. On her first day at work on November 9th she came in at 11:30 a.m. because that was when Mr. Harling asked her to come in. On November 15, 1999 Ms. McConnell is alleged to have been late when she punched in at 9 a.m. She recalls that Mr. Harling told her to come in one hour later because he needed Wayne, the worker on the production line ahead of Ms. McConnell, to have one hour ahead of her to bend boxes so that there would be work for her to do when she arrived. Two of these late days were when she had doctor’s appointments after her pregnancy had been confirmed, and the employer was aware of and had authorized her late arrival.
There is significant disagreement regarding Ms. McConnell’s absence from work on Monday December 6, 1999. She believes that she had booked the day off as part of her vacation as she was returning from Disneyland very early on December 5th and wanted to have a day to get settled back at home. She had asked for the time off at the end of June 1999 when working at Augustan. She recalls that Messrs. Harling and McCulloch had said it was all right to take the Monday also, but to remind them closer to the time. There is no evidence that Ms. McConnell ever reminded them of the extra day before she went on vacation in December.
Mr. Harling recalls that Ms. McConnell called him at home on the Sunday night and asked for the Monday off as she had just returned from her vacation and needed the time to get settled back in. He claims that he told her she could not have the day off, but she took it off anyway. Mr. Harling concedes that he did not do anything about it at the time and simply made a comment to Ms. McConnell about not showing up.
On January 19th the applicant went to work by 8:13 a.m. although she had a bad headache. Mr. Harling told her she could leave work early (1:24 p.m.) as there was not much work to be done. On February 1, 2000 Ms. McConnell went to work but had a very bad headache again. When she got to work Mr. Harling told her they didn’t really need her and sent her home. He indicated that he would call her if she was needed the next day. However, as he did not call, Ms. McConnell went into work. That was the day her employment was terminated.
According to Mr. McCulloch the applicant’s lateness had an impact on production because in 15 minutes she could weld one or two tool boxes. He testified that her constant lateness was the reason for terminating her employment. Since she was starting one hour later than the rest of the shop employees he claimed that the work would pile up at her station. However, Mr. McCulloch himself testified in cross-examination that Ms. McConnell had always met her quota, that she was a serious welder, that the company had no trouble with her work, and that so long as work was getting to her, Ms. McConnell would do her job effectively. Mr. McCulloch therefore contradicted himself regarding the impact of Ms. McConnell’s lateness. Ms. McConnell’s evidence was that she was a very fast welder, a fact with which both Messrs. McCulloch and Harling agreed. She testified that she would have welded enough boxes by 3 p.m. the day before for the rest of the line to work on in the morning. Then after she came in she would catch up on what had been cut and shaped before she came in by the person who worked ahead of her on the production line. Ms. McConnell was not cross-examined on her version.
Mr. Harling testified that he had kept some statistics about what each person was producing over a one-month period in December 1999 or January 2000. The Board was not shown that documentation nor was any documentation presented regarding production. Ms. McConnell testified that they were expected to make 100 boxes a week and that they met that goal. There is no evidence to the contrary. Therefore, based on the evidence before the Board there is nothing to substantiate the employer’s claim that Ms. McConnell’s lateness had an adverse impact on production. In any event, it is surprising that if this had been the case that the employer had not given Ms. McConnell any warning about the problem in the three months that she had worked at Arva.
Mr. McCulloch recalled that after the January 13th meeting he and Barry Harling discussed Ms. McConnell’s lateness and her general attitude of not wanting to do work other than welding. In the weeks following that meeting her attendance did not improve and in Mr. McCulloch’s mind it was affecting the livelihoods of other workers. He claims that the decision to terminate the applicant’s employment was based on these considerations and not on the fact that she was pregnant. As noted above, the Board has found that there is no evidence to substantiate that Ms. McConnell’s lateness was affecting the livelihoods of other workers at Arva by having any impact on overall production.
According to Mr. McCulloch the fact that the applicant was consistently late arriving for work meant she was not available for full-time work, and she was supposed to be working 8 a.m. to 3 p.m., while the rest of the shop worked 7 a.m. to 3 p.m. However, he conceded that the company had agreed in November 1999, when it asked Ms. McConnell to return to work after the layoff, that she could start at 8 a.m. Further, he conceded that Ms. McConnell had wanted to work till 4 p.m. so as to work full-time hours, but that it was the company who would not let her do so.
It is noteworthy that the time cards proffered by the employer as exhibits in this proceeding had a number of notations on them. Most of the notations, except for the totals of hours or signatures for hand-entered times, had not been made contemporaneous with the cards being prepared. Ann Arrand added notations saying “LATE” or “LEFT EARLY” during the Employment Standard Officer’s investigation following Ms. McConnell’s termination. Ms. Arrand had no knowledge of any of Ms. McConnell’s comings and goings, and simply made those notes based on what she believed may have happened by looking at the times clocked in and out. Despite Ms. Arrand’s evidence that she had made the notations, Mr. Harling also claims to have written in “LATE” on the cards. The Board has therefore disregarded all of those notations as they are inherently unreliable and were added to the time cards after Ms. McConnell’s termination from employment.
Mr. McCulloch claims to have told Ms. McConnell on two or three occasions that her lateness was affecting the production line and that her days off were a problem. He cannot recall any details of when the meetings were held with Ms. McConnell to tell her this nor can he recall what he said to her. The Board finds Mr. McCulloch’s claim in this regard too vague and therefore cannot accept that the employer has substantiated that it ever brought to Ms. McConnell’s attention that her lateness and time off were affecting the production line.
Ms. McConnell was extremely surprised by the termination. She had already been assured in mid-January that she would not be laid off because of the pregnancy. When Mr. Harling told her she was being terminated on February 2nd he refused to tell her why. She asked to speak to Mr. McCulloch but was told she could not do so. She therefore had to leave the workplace without any explanation about why she was being terminated at that point. Ms. McConnell claims that she experienced extreme stress as a result of the termination as she loved her work and had wanted to continue at Arva. She lost 5 lbs. in her first trimester of pregnancy, a loss she attributes to the termination. She could not get another job because she was pregnant. Ms. McConnell’s second son was born on July 18, 2000. As a result of the termination Ms. McConnell had to claim Employment Insurance benefits in February and was thus no longer eligible for benefits after early September 2000, which in the ordinary course would have been paid to her during her maternity and parental leave periods.
The applicant could not find another welding job as most companies that utilize welders require that the individual hold a welding certificate. It would have cost Ms. McConnell about $10,000 to take a welding course to get a certificate and she could not afford to do that. There is a very limited market for tig welding, which is a form of cosmetic welding. By the first day of hearing in this case, on November 23, 2000, Ms. McConnell had not seriously been looking for work as her baby was only four months old and had been found to be lactose intolerant so was experiencing some health difficulties. At the time of the second day of hearing on May 16, 2001, Ms. McConnell was employed and had been since the beginning of February.
She began to look for work in early January 2001. Ms. McConnell looked through newspapers to try to find suitable prospects. She also went through her area telephone book and identified companies that may have jobs she could do. She called up companies to see if they were hiring. Ms. McConnell also drove around industrial areas to try to find jobs. In his evidence before the Board Mr. McCulloch had testified that there were companies that could use her tig welding skills. Ms. McConnell tried to contact most of those companies without success. She called companies any of her friends suggested may be hiring. She sent out a number of resumes.
At the end of January 2001 Ms. McConnell got a job at True North Entry Systems and she started on February 1, 2001. At first she was paid $8 per hour. About five weeks after being hired she got a promotion and a raise to $9 per hour. In May 2001 she got another raise and is now earning $10 per hour. She is presently the supervisor of the door line and parts department and works between 38 and 41 hours a week.
Decision
Section 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.
This is an employee request for review in which the applicant claims that the employer has violated section 44 of the Act by terminating her employment because of her pregnancy, shortly after she had announced the pregnancy.
In James Hall, [1996] O.E.S.A.D. No. 144, Decision No. ESC 96-139 (Cummings), the adjudicator opined on the onus issue in section 44 cases as follows:
One of the difficult issues to contend with is who bears the onus of establishing that section 44 has or has not been violated, and how can that onus be discharged? The starting point is that under section 67 of the Act, the Claimant bears the onus to prove that the Officer was wrong in concluding that section 44 of the Act was not violated. That is the usual onus placed on any applicant; employees bear the onus in applications under section 67, and employers in applications under section 68. The next question is whether that onus shifts in any way where the application involves an alleged breach of section 44. Put simply, must the Claimant prove that she was terminated because of her pregnancy, or does the Employer bear some onus to prove that she was not terminated because of her pregnancy?
Placing some burden on the employer in these cases makes practical sense; it is the employer who knows why it made the decision to terminate an employee and whether the fact of the pregnancy and entitlement to a leave played a part in the decision. While the claimant bears the onus of proving a violation of section 44 of the Act, the employer must at least provide an explanation for the termination, once the claimant has established that she was pregnant, that the employer knew she was pregnant, she was terminated, and she has a good reason for believing that the termination was related to the pregnancy. The claimant bears the ultimate burden, but in the absence of a credible explanation from the employer, it will likely not be hard for the claimant to discharge that burden.
Adjudicators have generally accepted that there is this shifting onus in section 44 cases. Once the employee claimant has established the basic elements, the employer must show why the status quo changed. As the Board stated in Wah Lung Labels (Canada) Inc., [1998] O.E.S.A.D. No. 292 (Albertyn) August 11, 1998, “the evidentiary issue is: has an adverse change been the result of the employee’s pregnancy or was it for some bona fide business reason unrelated to the employee’s pregnancy?” (at para. 63). In that decision the Board went on to state that:
… Once an employee establishes her pregnancy, employer knowledge of it, and some adverse consequence to her, an adjudicator will draw an inference that the reason for that adverse change in employment circumstances of a pregnant employee is because of her pregnancy. An employer may, ofcourse, rebut that inference. …
Having said this, I do not mean to suggest that an employer may never take action in relation to a pregnant employee which is prejudicial towards her. A pregnant employee is no better off than any other employee merely on account of her pregnancy. The purpose of section 44 of the Act is to ensure that she is in no worse position. That means that if an employer has a genuine operational reason for taking an adverse decision against a pregnant employee (e.g. misconduct resulting in discipline, real economic need resulting in layoff; etc.), and the employer can prove that reason to have been the only reason for the decision, then the employer will have discharged the evidentiary onus.
In other words, I interpret section 44 to involve a taint test – if the unwanted intimidation, discipline, suspension, layoff, dismissal or penalty of an employee known to be pregnant is tainted by consideration of her pregnancy, then the section has been violated, but this does not mean that any and every intimidation, discipline, suspension, layoff, dismissal or penalty of a pregnant employee is ipso facto a violation of section 44.
Ms. McConnell has established that she was pregnant, that she told Messrs. Harling and McCulloch about it on January 12, 2000, and that her employment was terminated on February 2, 2000. She asserts that there was no reason other than her pregnancy to account for her termination from employment.
The onus then shifts to the employer, Arva, to rebut the inference that Ms. McConnell’s employment was terminated for reasons other than her pregnancy. The employer claims that it terminated the applicant’s employment because of her unavailability to work full-time and during regular shop hours, due to her poor attitude and because of her poor attendance. It is undisputed that Ms. McConnell was an excellent tig welder and that she got along well with her co-workers.
On a review of the evidence it is clear that Arva hired Ms. McConnell back to work in November 1999 on the specific agreement that she would work from 8 a.m. on. Although Ms. McConnell wanted to work full-time hours of 8 a.m. to 4 p.m., the employer decided that it could not have her work past 3 p.m. and so imposed the reduced work week on the applicant. At no time did it ever ask her if she could work a 40-hour week by either coming in earlier every day, or by working an extra five hours on weekends. The employer claimed at the hearing that there was work regularly available on Saturdays and Sundays, but it also conceded that no employee was required to work on those days.
Both Messrs. McCulloch and Harley agreed that Ms. McConnell was an excellent worker, and Mr. Harley said it was hard to let her go because it was difficult to replace her superior tig welding skills. Therefore, had the fact that she was not working full-time hours been a genuine concern for Arva it would be more likely than not that Mr. McCulloch or Mr. Harley would have asked her if she could work full-time hours before deciding to terminate her employment. In this context it is difficult for the Board to accept that suddenly on February 2, 2000 the employer decided that it had to terminate Ms. McConnell’s employment because she could not work full-time or could not be available during the regular shop hours of 7 a.m. to 3 p.m. The employer had never even asked her about these matters, so it could not say categorically that she was unable to do so.
The other basis upon which the employer claims that it terminated Ms. McConnell’s employment was that she had a poor attendance record. If one reviews the time cards for the three months that the applicant worked for Arva, at worst she was away from work three days. There is some dispute about two (November 12, 1999 and February 1, 2000) of the three days as Ms. McConnell claims that the employer told her to stay home or to go home on those days. The employer’s witnesses have no clear recollection of the two days, but claim that she took the days off because she was sick. There is no question that on February 1, 2000 Ms. McConnell came into work and then went home. On December 6, 1999, the third day that she was not at work, the Board accepts the employer’s evidence that it had told Ms. McConnell that she could not have the day off, but that she took it anyway. However, Arva never upbraided Ms. McConnell for her failure to show up for work that day. It is difficult to see how the employer could in good faith rely on this instance to ground the termination two months later when it took no action at the time.
Even accepting, without finding, that the applicant was away from work of her own volition on the three days in question, there is no evidence before the Board that Ms. McConnell’s absenteeism rate of one day a month was any worse than that of any other employee at Arva. Furthermore, Arva never warned Ms. McConnell that her absences were of such a concern to the employer that her attendance had to improve or it would terminate her employment.
According to the employer, the other element of Ms. McConnell’s poor attendance was her chronic lateness for work. Based on the evidence before the Board it is clear that Ms. McConnell was seldom able to get to work in time to punch in at 8 a.m. and that she was therefore late for work regularly. The Arva time clock was set 15 minutes fast, so that when it was showing 8 a.m., it was actually only 7:45 a.m. Arva had agreed that she could start work one hour after the regular shift commenced in order to drop off her son at his school at 7:30 a.m. every day. Ms. McConnell could not physically have dropped her son at school in London at 7:30 a.m. and been in St. Thomas at 7:45 a.m., especially not in the winter with snowy driving conditions. The period in question was between November 1999 and the end of January 2000.
Arva claims that one of the reasons that it terminated Ms. McConnell’s employment was her tardiness. However, it did not warn or discipline Ms. McConnell regarding her apparent lateness in the three months prior to terminating her employment. As has been noted earlier, at best Mr. Harling gave Ms. McConnell some pep talks about getting in to work on time. No one in management ever told her that if she did not get into work by 8 a.m. on the punch clock (at 7:45 a.m. in reality), that her employment was in jeopardy. The evidence before the Board is that notwithstanding her apparent chronic lateness, Ms. McConnell was able to keep up with production needs and her output every week was such that despite working about five hours less per week than the other workers, the 100 tool box per week quota was met. Mr. Harley was so satisfied with her work until January 2000 that despite his lack of success in convincing Mr. McCulloch that Ms. McConnell should be paid more, he was paying her $20 in cash a week out of his own pocket because he believed she was worth more than she was being paid.
In light of all of the evidence, the Board must ask itself what changed in January and why Ms. McConnell was terminated on February 2, 2000, three weeks after having told Arva that she was pregnant. For the reasons already outlined above, it is not convincing that the employer was suddenly concerned about the applicant not working full-time hours or during the full regular work day. It is also not convincing that Ms. McConnell’s absenteeism or apparent chronic lateness suddenly caused the employer to terminate her employment. It is highly suspicious that within three weeks of learning that she was pregnant, and without any warning, the employer terminated her employment on the grounds of lateness. The employer has not provided a credible reason for why it decided to terminate Ms. McConnell’s employment when it did.
In the Board’s view what is more probable is that Arva became concerned about what was going to happen in the workplace once it learned that the applicant was pregnant. Because Messrs. McCulloch and Harley liked Ms. McConnell’s work, they tried to do the right thing initially by trying to find out if there were any health hazards associated with the tig welding work Ms. McConnell did. The employer allowed her to take time off for her doctor’s appointments. Then Ms. McConnell had an argument with Messrs. McCulloch and Harley about earning more money, being asked about a doctor’s note, and being laid off. At the same time that she had the heated discussion, she asked for a respirator and better mat to accommodate her pregnant state. The employer got her two kinds of masks before Ms. McConnell was satisfied that she had got what she needed. She indicated to her co-workers that she would need help with lifting and carrying. Finally, she had two instances of severe headaches that caused her to come in late or go home early. In the Board’s view all of this most likely caused Messrs. McCulloch and Harley concern about how the rest of the pregnancy would affect the workplace when the first three weeks had been as outlined above, and they decided to terminate her employment. It is entirely likely that they also bore in mind that Ms. McConnell was late for work regularly and that she did not work full-time hours. However, those would appear to have been rationalizations for the decision to terminate as the employer had not up to that point taken any concrete steps to change those problems.
The Board finds that Arva violated section 44 of the Act and terminated Ms. McConnell’s employment at least in part because of her pregnancy, and concomitant right to take pregnancy and parental leave.
The next area of consideration in light of the Board’s finding is the applicant’s claim for compensation since this is not a case in which the worker is seeking reinstatement.
Had Ms. McConnell not been terminated from her employment on February 2, 2000, she would have been able to continue to work to her due date in the middle of July 2000. The employer paid her two weeks termination pay in lieu of notice. The Board therefore orders that she be compensated for her direct wage loss for 22 weeks to July 18, 2000.
The parties disagreed on how the weekly wage should be calculated. The applicant’s counsel argued that she should be paid for a 35-hour work week. The employer argued that since Ms. McConnell did not work a regular 35-hour week, the Board should use the method of calculating a regular wage rate based on the terms of section 11 of Regulation 325. The Board agrees with the employer that section 11 of Regulation 325 is the most obviously applicable calculation to the situation here and is the fairest method of calculating the weekly wage rate as it is designed to be applied to Part XIV of the Act dealing with termination of employment.
The relevant portion of section 11 of the Regulation states:
(2) Subject to the definition of “regular rate” in section 1 of the Act, in determining the regular rate or regular wages of an employee whose hours of work differ from day to day or who is paid on a basis other than time, for the purposes of Part XIV of the Act, the wages of the employee for a regular non-overtime work week shall be determined by calculating the average of the employee’s weekly earnings exclusive of overtime pay, for the weeks the employee has worked in the period of thirteen weeks preceding the date the employee would have been entitled to receive notice of termination.
Ms. McConnell worked for 9 full weeks prior to the partial week of her termination. The Board has used the average of those nine weeks to determine her average weekly hours to be 29.5 hours. She was paid at the rate of $12.50 per hour. Therefore, on average Ms. McConnell earned (29.5 hrs. x $12.50) $368.75 per week. For the 22 weeks of direct wage loss prior to what would have been the commencement of her pregnancy leave, Ms. McConnell would have earned ($368.75 x 22 weeks) $8,112.50. The Board therefore orders Arva to pay to Ms. McConnell $8,112.50 for her direct wage loss.
The applicant has claimed three months wages for the loss of her reasonable expectation of employment. The Board agrees with the analysis of Referee Randall in Medical Arts Dispensary of Ottawa (1990) Ltd., [1992] O.E.S.A.D. No. 130, Decision No. ES 157/92, Sept. 21, 1992, regarding the heads of damages for the time required to find a new job and the loss of reasonable expectation of continued employment. For a more fulsome analysis of the jurisprudence in this area, one may review Wyeth-Ayerst Canada Inc., [1998] O.E.S.A.D. No. 16, Jan. 7, 1998 (Misra). In that decision it became apparent that the jurisprudential development was in the direction of awarding one month’s pay for each year of service. In the Board’s view it is therefore not reasonable for the applicant to claim three months wages for the loss of the job itself. She had been employed by Augustan for about 1.6 years before being laid off in September 1999, and was recalled to employment at Arva in November 1999. Ms. McConnell then worked for three months before her employment was terminated. At best the applicant had just short of two years of employment with Augustan/Arva. The Board therefore orders Arva to pay to Ms. McConnell two months of wages for the loss of her reasonable expectation of continued employment. On the basis of the weekly calculation outlined above, the order is for the amount of (8 weeks x $368.75) $2,950.00.
The applicant has claimed three months for the time required to look for a new job. In fact the evidence is that Ms. McConnell found a job within one month of looking for one. While she had to take a job at a lower hourly rate than she had been earning ($8 versus $12.50), within three months of having the new job she has received two substantial raises and is now earning $10 per hour. The Board finds that one month should be the award for the time required to find a new job, and Arva is ordered to pay to Ms. McConnell four weeks wages at the rate of $368.75 per week, for a total of $1,475.00.
The employer is ordered to pay vacation pay at the rate of 4% on the total of the direct wage loss, the reasonable expectation of continued employment, and the time to look for a new job. The amount ordered for vacation pay is $501.50 (4% of $8112.50 + 2950.00 + 1475.00).
The applicant claims $5,000 for pain and suffering. This is an excessive claim for which there is little supporting evidence. There is no doubt that Ms. McConnell suffered as a result of having her employment terminated in her first trimester. She was very upset by the loss of a job that she apparently loved. She knew that she would not likely get another job in her pregnant condition. There is some suggestion that she lost five pounds as a result of the stress of the job loss, but there is insufficient medical evidence before the Board to establish that the weight loss was a result of the termination and not due to the nausea that Ms. McConnell experienced in her first trimester. The Board is satisfied that a woman who loses her job in circumstances such as Ms. McConnell’s suffers the humiliation of the termination, and uncertainty about what the future will hold for her. However, without more evidence of specific hardship caused by the termination, the Board can only make a minimal award for pain and suffering in the amount of $500. Arva is ordered to pay to Ms. McConnell the amount of $500 for pain and suffering caused by the termination, which has been found to be contrary to section 44 of the Act.
The applicant claims $500 for expenses associated with her job search. There is no evidence or documentation tendered to support this claim. The applicant believes she sent out between 5 and 25 resumes and made about two phone calls a week. She also drove around industrial areas looking for places that may be hiring. Finally, she looked in newspapers for a job. For the one month that the applicant conducted her job search the Board orders Arva to pay to Ms. McConnell $100 for the expenses she most likely incurred.
The applicant has made an unusual claim for the loss of her maternity/Employment Insurance (“EI”) benefits in the amount of $9,192.00. It is not quite clear to the Board what the basis for this claim is, but the applicant appears to be arguing that because she had to claim EI benefits when her employment was terminated, and not as maternity benefits, she may be disentitled from receiving EI benefits for loss of employment should she need to make another claim. The Board is not prepared to make any order in respect of this claim. Had the applicant been able to work until she gave birth, she would then have received the EI benefits for her maternity leave in any event. It appears that she received benefits for approximately 28 weeks until early September 2000. There is no precedent for a claim of this type, and the Board is not convinced that it is supportable in this instance.
DISPOSITION
- To summarize, the Board finds that Arva violated section 44 of the Act for the reasons outlined above. The Board orders Arva to forthwith pay to the Director of Employment Standards in Trust for Ms. McConnell the following:
Direct wage loss $ 8,112.50
Loss of reasonable expectation of continued employment 2,950.00
Time required to look for a new job 1,475.00
Vacation pay at the rate of 4% 501.50
Pain and suffering 500.00
Expenses for a job search 100.00
Total: $13,639.00
- Once the Director of Employment Standards receives the monies due to Ms. McConnell, the Board requests that the amount of $13,639.00 be disbursed to the applicant at the Director’s earliest convenience.
“Gail Misra”
for the Board