Ontario Labour Relations Board
1411-00-ES Lisa Allen, Applicant v. Dr. Jeff Weaver and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 41008883
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Ian M. Thompson and Lisa Allen for the applicant; Gordon Slemko and Dr. Jeff Weaver for the responding employer; Brian Fukuzawa for the Ministry of Labour.
DECISION OF THE BOARD; August 21, 2001
Decision
1This is an application for review of the decision of an Employment Standards Officer not to issue an Order to Pay. The Officer was not satisfied that Lisa Allen had lost her employment as a dental hygienist with Dr. Jeffrey Weaver because she had exercised her right to take a pregnancy and parental leave, pursuant to the Employment Standards Act.
2Counsel for the Ministry of Labour and the Employment Standards Officer withdrew at the start of the hearing, on the basis that the workplace parties were represented by counsel and the case did not appear to involve policy issues of particular interest to the Ministry.
3The relevant statutory provisions are found in sections 41(2); 43(1); 44 and 45:
41(2) An employee who has given notice to end leave may change the notice,
(a) to an earlier date if the employee gives the employer at least four weeks written notice before the earlier date; or
(b) to a later date if the employee gives the employer at least four weeks written notice before the date leave was to end.
43(1) The employer of an employee who has taken pregnancy leave or parental leave shall reinstate the employee when the leave ends to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
44(1) 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.
- Where an employer fails to comply with the provisions of this Part, an employment standards officer may order what action, if any, the employer shall take or what the employer shall refrain from doing in order to constitute compliance with this Part and may order what compensation shall be paid by the employer to the Director in trust for the employee
68(19) The Board may, with necessary modifications, exercise the powers conferred on an employment standards officer under this Act and may substitute its findings or opinions for those of the officer who issued the order or refused to issue the order.
4I heard testimony from Ms. Allen; Mr. Allen, her spouse; Dr. Weaver; Marcia Pallotta, the office receptionist and Danelle Cameron-Ablett, treatment co-ordinator. In making the findings and reaching the conclusions set forth in this decision, the Board has duly considered all of the oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses’ respective memories, their ability to resist the influence of self-interest when giving their version of events, the internal and external consistency of their evidence, and their demeanour while testifying. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences, which may reasonably be drawn from the totality of the evidence.
5Ms. Allen was hired as the only hygienist in Dr. Weaver’s office on October 6, 1997. She worked 4 days a week; Monday, Wednesday, Thursday and Friday, for a total of 29 hours. She testified that she told Dr. Weaver of her pregnancy early in her term because she anticipated the need to be off early in the event of complications. In October or November of 1999, Ms. Allen said she advised him more formally, although not in writing, that her due date was December 12, 1999. She testified that Dr. Weaver wanted her to work until December 7, 1999, but due to fatigue, her last day of work was December 1, 1999. Prior to her going she told Dr. Weaver she planned to take 4 months leave. Ms. Allen testified Dr. Weaver wanted her to come in and work during the March Break, but she told him no because it was too early.
6Ms. Allen testified that during her leave, she had contact with the office. She brought in her new baby for a visit, and attended at least one staff meeting. Ms. Allen said she found Dr. Weaver distant, cold and not talking much to her. During her leave, Ms. Allen was aware that 1 full-time and 2 part-time hygienists had been hired, and the office was now open on Tuesdays as well.
7Ms. Allen related that Dr. Weaver called her on January 25, 2000 and asked if they could determine her return date, because he was preparing the schedule. Ms. Allen answered she would be returning April 3, at which point Dr. Weaver told her she would be working Wednesday, Thursday and Friday. Ms. Allen responded “Where’s my Monday”, to which Dr. Weaver replied that he had a part-time person working on Monday. Ms. Allen responded that she had not agreed to give up her Mondays.
8The next day, Ms. Allen went into the office to talk to Dr. Weaver. He said he now had 2 hygienists and it was easier for one to work Monday. Ms. Allen said she reminded him she was on a leave and entitled to return to her old job. She also asked Dr. Weaver if she could start later in the morning to accommodate child care and was told everyone starts at 7:30 am.
9Ms. Allen then received a call at home from Dr. Weaver to see if they could schedule a lunch meeting. It took place at a local restaurant on March 6, 2000. Ms. Allen said Dr. Weaver seemed hostile, distant and abrupt. When she indicated an interest in receiving training given to other hygienists during her leave, Dr. Weaver said no, she could learn from others. Ms. Allen testified she told Dr. Weaver that she had never indicated she wanted to give up a day. He responded that others would be happy to take her days. Ms. Allen then told him she wanted to extend her leave, and Dr. Weaver responded “absolutely not” because he had already booked patients for her first day back. The conversation ended with Dr. Weaver saying “I need your answer by Friday” and both leaving the restaurant. The next day, March 7, 2000, Ms. Allen delivered a letter to Dr. Weaver’s office confirming the verbal notice that she would not be returning on April 3, 2000, but was taking her full leave and would be returning June 1, 2000.
10Dr. Weaver called Ms. Allen on March 8, 2000, but she declined to talk to him and did not return his call as he requested. Ms. Allen testified that she did not call him because there was nothing to discuss. On March 10, 2000, Ms. Allen received a letter a termination. It said simply that “Your hygiene services will no longer be required” and relied on her written contract of employment as the basis for giving 30 days notice.
11In cross-examination, Ms. Allen denied that she had initiated the discussion about reducing her work schedule from 4 days to 3. She denied that the issue had been discussed before she left on her leave, and recalls discussing the matter with other staff in the office only after Dr. Weaver told her she was going to 3 days.
12Dr. Weaver told a very different story. Dr. Weaver testified that Ms. Allen told him of her pregnancy early, then starting in November 1999, Ms. Allen began raising the issue that she might come back only 3 days per week. Dr. Weaver said initially nothing firm was decided, but it was generally known at the office that Ms. Allen wanted to spend more time with her children. Dr. Weaver agreed that there was a phone conversation on January 25, 2000 but recalls it quite differently. He said he asked Ms. Allen how many days she wanted to come back because they were meeting with a consultant to help figure out how to staff the office. According to Dr. Weaver, Ms. Allen said she wanted to come back 3 days a week. There was no discussion about which days they would be.
13On February 11, 2000, Dr. Weaver said they had a staff meeting, which Ms. Allen attended, along with the consultant. Again, Dr. Weaver testified, Ms. Allen confirmed she wanted to return for 3 days, and a discussion followed about how that could be accommodated. But again, nothing firm was decided. Dr. Weaver testified that the next discussion came when he requested a lunch meeting with Ms. Allen that took place on March 6, 2000. According to Dr. Weaver, Ms. Allen repeated her request to work 3 days, and Dr. Weaver told her he wanted her to work Wednesday, Thursday and Friday because the hygienist presently working Mondays was not available any other day. Dr. Weaver testified that he explained his staffing needs to Ms. Allen, which I will set out below, but Ms. Allen did not want to give up Mondays, because that day had more hours.
14At that point, Ms. Allen said she was considering taking a longer leave because she was having problems arranging day care. Dr. Weaver said he pointed out that he had already started scheduling patients for her return in April. He denied that the meeting was hostile or that he was angry, but agreed that it was not pleasant either. It ended with him asking Ms. Allen to consider his needs, and he expected that each would think about the others wishes for a day or two then reach a resolution.
15The next day Ms. Allen dropped off a written request to extend her leave at the dental office. Dr. Weaver called her at home to discuss it, but as Ms. Allen testified, she did not want to talk to him, and did not return his phone message. Dr. Weaver said that as a result, he came to the conclusion that Ms. Allen did not want to work for him anymore, and he sent her a letter of termination.
16Dr. Weaver testified that he was prepared to consider Ms. Allen’s request to extend her leave, but he needed to have some resolution about the schedule, and to be able to talk to her. Dr. Weaver said that other employees have taken leaves, and have had their leaves extended, even beyond the statutory period. Dr. Weaver denied that Ms. Allen was terminated because she requested an extension of her leave. He said she was terminated because she requested to work 3 days, but then would not accept the schedule proposed.
17Dr. Weaver explained that at the time Ms. Allen started her leave, he needed 4 “hygienist days” per week. But during her leave, Dr. Weaver started opening on Tuesdays as and implemented a new periodontal program. While the build up was gradual, by April 2000, Dr. Weaver needed a minimum of 7 to 9 hygienist days a week. I heard a fair bit of testimony about the combinations of staff that were hired to replace Ms. Allen during her leave. I understand that there are not a lot of full-time positions for hygienists around, and unless a dentist can offer a full-time position (or as many hours as the hygienist wants) the dental office has to schedule around the hygienists’ other work. So, for example, initially Ms. Allen was replaced while on leave with 2 hygienists working part-time. Dr. Weaver was particularly happy with one, and offered her full-time hours, and so she quit her other part-time job. But, he testified, there was still room for Ms. Allen because he anticipated needing 9 days a week. However, Ms. Allen wanted to work only 3 days, so he needed someone to work the 4th. He already had a hygienist working Mondays and only Mondays, because she was working elsewhere. Dr. Weaver could accommodate Ms. Allen’s desire to work 3 days a week, but not her desire to work Mondays, because he would then be required to find a new person to work the Friday Ms. Allen did not want to work. When asked how he would have responded if Ms. Allen wanted to work 4 days a week on her return, Dr. Weaver said he would have been pleased, because that would have solved the whole problem.
18Marcia Pallotta, the receptionist in Dr. Weaver’s office and Danelle Cameron-Ablett treatment co-ordinator, both testified that Ms. Allen’s desire to work only 3 days a week had been well known, to them individually and to the office generally, before Ms. Allen left on her leave. Both recalled Ms. Allen’s request being openly discussed at a staff meeting Ms Allen attended in February 2000. Ms. Cameron-Ablett also testified to hers and Dr. Weaver’s efforts to accommodate the scheduling request. She recalled his office being covered with large sheets of paper, setting out various scheduling options. Dr. Weaver asked her to try to find a better solution, but she was not successful; in her view if Ms. Allen wanted 3 days a week, the only option was what was proposed to her. Ms. Cameron-Ablett confirmed that if Ms. Allen had been prepared to work 4 days, the problem would be solved, because those were the total they needed to cover.
19I found Dr. Weaver, Ms. Cameron-Ablett and Ms. Pallotta to be credible witnesses. They gave their evidence in a straightforward manner. But even more significant, the evidence they gave, in contrast to the testimony of Ms. Allen, is what is most likely to have occurred having regard to all of the circumstances. I conclude that Ms. Allen lied when she testified that the requirement to work 3 days a week was initiated by Dr. Weaver. I find that the request to work 3 days a week came from Ms. Allen. She made the request before her leave, confirmed the request during her leave, and expected it to be acted on. Moreover, at no time did she indicate a willingness to rescind that request and return to the 4 days a week she previously worked. If, as Ms. Allen testified, the change to 4 days from 3 had been initiated by Dr. Weaver, there would have been no need for the extensive efforts undertaken to create a schedule that suited Ms. Allen. As both Dr. Weaver and Ms. Cameron-Ablett testified, if Ms. Allen had been prepared to work the same 4 days she had prior to her leave, the scheduling needs of the office would have been met. There is no evidentiary basis for the proposition that Dr. Weaver prevented Ms. Allen from being reinstated to the hours she worked before her leave.
20That is a significant factual finding in this case. Ms. Allen’s counsel’s principal submission was that Ms. Allen was not reinstated into her former position upon return from her leave, contrary to section 43 of the Act. However, that argument cannot be sustained without an appropriate factual foundation. Ms. Allen did not want to be reinstated to her former position; she wanted a new part-time position, and moreover, she wanted to determine what days she worked. I find on the basis of the evidence of Ms. Cameron-Ablett and Dr. Weaver that a good faith effort was made to accommodate that request. Dr. Weaver was prepared to accommodate the 3 day schedule, but not the particular days Ms. Allen wanted. There is no obligation on an employer to create a position to suit the new wants of an employee returning from leave. I conclude, therefore, that there has been no breach of the obligation to reinstate an employee returning from leave. It is also worth noting that at the time Ms. Allen was terminated, she was not at the point of seeking reinstatement. Rather, she wanted to extend her leave.
21I am satisfied, however, that the decision to terminate Ms. Allen was, at least, in part affected by Ms. Allen’s request to extend her leave. I rely on Dr. Weaver’s evidence that he was prepared to “consider her request for a leave” if she would also consider his scheduling needs. An employee’s entitlement to a leave is absolute, including the right to extend the leave, if proper notice is given, as set out in section 41(2) above. She does not have to offer something in return. Further, I note that Ms. Allen’s termination came only 4 days after she told Dr. Weaver she wanted to extend her leave. He admitted that he was frustrated. He had already booked patients to see Ms. Allen in April. I appreciate that he had quite legitimate reasons to be irritated with Ms. Allen. She had asked that the terms and conditions of her employment be changed, a request that he had tried to accommodate, only to be met with a refusal to accept the schedule. Ms. Allen had unreasonable expectations. However I believe that the decision to terminate Ms. Allen was tainted. She requested an extension of her leave. It created inconvenience. For Dr. Weaver, it was one more indication of Ms. Allen’s unreasonableness. Nonetheless, it is a breach of the provisions of section 44 if even part of the decision to terminate is for reasons related to the right to take a leave.
22Dr. Weaver did have other options that would have allowed him to organize his practice while still meeting the obligations under the Act. He could have written to Ms. Allen and told her that when she returned from her leave in June she could work either the 4 days a week she had previously worked, or the three day schedule that Dr. Weaver had devised, and provided a reasonable time in which to respond. If Ms. Allen had not responded appropriately, a decision-maker might have concluded that a subsequent termination was for reasons unrelated to Ms. Allen’s right to take a leave.
23In Wah Lung Labels (Canada) Inc. [1998] O.E.S.A.D. No. 292, the Board set out the test an employer must meet in satisfying a decision-maker that adverse changes to the job of a person entitled to take a leave are not related to the leave. At paragraphs 64 and 65, the Board wrote:
Once the 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 the employment circumstances of a pregnant employee is because of her pregnancy. An employer may, of course, rebut that inference. There are several reasons why the inference is drawn. The employee is particularly vulnerable at that time - she has the natural burden and discomforts of being pregnant, she has the certain knowledge that she will be leaving her work for an extended period of time and she will be concerned that her employment prospects and advancement might be prejudiced during her impending absence. She will suffer a drop in income during her maternity leave, so her capacity to continue to work during her pregnancy is important to her financial projection for her maternity. It is relatively easy for an employer to discount the value of an employee who has become pregnant, to cease to 'see' her and to overlook her in future planning because she will be away during the period of her maternity leave. It is difficult for a pregnant employee to contest business decisions which are made by the employer and which affect her adversely. She is beset by child care responsibilities at precisely the time she needs to be gathering information which may assist her to establish the absence of bona fides on the part of the employer. All of these considerations militate towards the conclusion that, in respect of some prejudicial decision affecting an employee known to be pregnant (just like an employee returning from maternity leave), an inference will be drawn that the reason for the prejudice suffered by the employee is her pregnancy.
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.
24In this case, I am not satisfied that the only reason Dr. Weaver terminated Ms. Allen was because of her obstinacy over the schedule and her refusal to talk to him. At least part of the decision, I conclude, was related to her request to extend her leave. Consequently, I find that Dr. Weaver has breached section 44 of the Act.
25The parties made submissions about what is the appropriate remedy in this case. Counsel for Dr. Weaver proposed that the Board follow Re Johnston, [1997] O.E.S.A.D. No. 450 in which the adjudicator awarded damages consisting of termination pay, severance pay, an amount for loss of job and out of pocket expenses. Notably, the adjudicator did not make an award on account of lost wages. However, although I have carefully read the decision, I see no evidence to indicate one way or another whether the claimant suffered a wage loss, so I cannot determine the basis on which the adjudicator determined not to award damages.
26Typically, where an employer is found to have terminated an employee for reasons related to her right to take a leave, decision-makers have ordered “make whole” remedies, whose goal is to put the employee in the position she would have been in had the violation not occurred. In this case, Ms. Allen is not interested in being reinstated in her employment with Dr. Weaver. She does, however, wish to be compensated for the wages she lost, subject to the money she earned in the interim, and she seeks an amount to compensate for the loss of her job. Ms. Allen makes no claim for damages on account of pain and suffering.
27Ms. Allen’s claim for lost wages covers the period from April 10, 2000 to April 3, 2001, the point she found comparable work. She seeks to be compensated at the rate of $1,015 per week, the amount she earned with Dr. Weaver when she worked 4 days per week.
28However, in her evidence, Ms. Allen said that she did not start looking for work until June 1, 2000, because she still considered herself on leave. Consequently, I will calculate the wage loss from June 1, 2000. Further, Ms. Allen’s claim for $1,015 per week assumes that she would have been working 4 days a week for Dr. Weaver. As set out earlier, I concluded that she only wanted to return to work for 3 days per week. Consequently, her wage loss would only be 75% of her former wages.
29There is no issue that Ms. Allen sought to mitigate her loss. I calculate her damages for loss of wages as follows:
June 1, 2000 to April 3, 2001 (44 weeks) at $761.25 = $33,495.00
Less earnings $24,008.00
Loss of wages $ 9,487.00
30Ms. Allen claims 11 weeks salary as compensation for loss of job. In Wyeth-Ayest Canada Inc. [1998] O.E.S.A.D. No. 16, the adjudicator reviewed the case law and the basis on which awards for loss of job are made. At paragraph 13, she wrote:
This head of damages is commonly referred to as compensation for loss of the job itself. Adjudicator/Referees have long recognized that there is, to the individual who suffers as a result of an employer's breach of the Act, some inherent value in having had the job. This seems obvious: If an employee has a job, has a regular source of income and benefits, and is suddenly and wrongly deprived of that job, the individual has to begin the process of seeking new employment, suffers loss of income, incurs expenses to look for a new job, and must begin over at a new place of employment if s/he is able to find new employment. The individual may have lost opportunities which would have accrued to him/her at the original place of employment, and may also lose future income. There are additional less tangible benefits to having a job, like accruing seniority or length of tenure, building relationships, and strengthening self-esteem through familiarity with the job requirements. All of these are lost when an employee is terminated.
31In the decision, the adjudicator traced the evolution of the quantum awarded, and concluded that “there appears to have been a steady development to this standard of one month’s pay per year of service”. At the time of her termination, Ms. Allen had worked for Dr. Weaver for two and a half years. Counsel for the applicant’s request for damages in the amount of $1,015.00 per week for 11 weeks, for a total of $11,665.00, is reasonable and consistent with the case law. I so award. As counsel for the applicant noted, the award of damages must be offset by the $2030.00 already paid by Dr. Weaver as termination pay.
Loss of wages $ 9,487.00
Damages for loss of job $ 11,665.00
Less amounts paid $ 2,030.00
Total owing $ 19,122.00
Disposition
32The Officer’s decision is substituted by my determination that section 44 was violated. I direct Dr. Weaver to pay $19,122.00 to the Director, Employment Standards, in trust, for distribution to Ms. Allen.
“Mary Ellen Cummings”
for the Board