Yee Fun Chan v. Screen Graphic Productions Ltd and Ministry of Labour
File No.: 1335-00-ES Employment Practices Branch File No.: 34002419 Before: Patrick Kelly, Vice-Chair.
Appearances: Yee Fun Chan, Kien Te Nghiem and Eva Wong appeared on behalf of the applicant; Horst Lutzeier appeared on behalf of Screen Graphic Productions Ltd.; L. Eisenberg and Pauline Bernard-Harris appeared on behalf of the Ministry of Labour.
Decision of the Board; August 15, 2001
1This is an employee appeal under section 68 of the Employment Standards Act, R.S.O. 1990, c. E.14, as amended ("the Act") against the refusal by an Employment Standards Officer ("the Officer") to issue an Order to Pay in the applicant's favour.
2The applicant (also referred to as "Ms. Chan") filed her claim with the Ministry of Labour on February 16, 2000, following her termination from employment with Screen Graphics Production Ltd. ("the company" or "the employer") on February 4, 2000, without notice or termination pay, following twelve years employment with the company. The claim was in respect of termination pay, vacation pay, and it alleged that the termination was for reasons related to her pregnancy, contrary to section 44 of the Act.
3The applicant and the employer entered into a settlement on May 23, 2000 by which the applicant received $4,659.20. The Ministry of Labour took the position, supported by the responding party, Screen Graphics Production Ltd. ("the company"), that the settlement disposed of all issues raised by the applicant's claim, and thus I should dismiss the application for review on a preliminary basis. The applicant contended that the settlement was only in respect of part of her initial claim, that is, in respect of termination pay. Indeed, the sum of $4,659.20 represents the equivalent of eight weeks termination pay. The applicant submitted that her claim was not fully satisfied by that settlement, and that she had been misled into signing the settlement through the Officer's mischaracterization of the application of the Act to her claim. The applicant submitted that she should have the opportunity to have the remaining issue concerning her pregnancy and termination determined in this review.
4I adjourned the hearing on April 11, 2001 to enable the applicant to obtain the services of an interpreter. Prior to my decision to adjourn the hearing, I had determined that the Ministry's preliminary motion to dismiss the application required the hearing of evidence. The applicant was directed to lead her evidence with respect to the circumstances of the settlement, and on June 28, 2001, she did so afresh with the assistance of an interpreter.
5The applicant testified that she came to the May 23, 2000 meeting with a friend, Eva Wong, who the applicant states was presented to the Employment Standards Officer, Ms. Pauline Bernard-Harris ("the Officer" or "Ms. Bernard-Harris") as the applicant's interpreter. According to Ms. Chan, she was told by the Officer that, because Ms. Wong was neither the applicant's spouse nor her lawyer, Ms. Wong was barred from participation in the meeting. The Officer, claims the applicant, was not convinced that Ms. Chan had any language difficulties necessitating the use of an interpreter. Accordingly, Ms. Wong sat outside the meeting room, and, the applicant contended, was never granted authority to come in at any time.
6Ms. Wong testified that she went with Ms. Chan to the meeting in support of the applicant whose husband was not available to be with her that day. Ms. Wong could not recall whether it was pointed out to the Officer that Ms. Wong was there to provide interpretation assistance. Her testimony was that she was initially barred from the meeting, but was later invited in by the Officer to comfort an upset Ms. Chan toward the end of the meeting.
7Ms. Bernard-Harris had a slightly different version concerning the role of Ms. Wong. She testified that Ms. Wong was introduced as the applicant's friend and support. Upon being told of the relationship, the Officer says she applied the usual practice of not allowing friends of parties into the meeting. When the meeting reached the stage of settlement discussion, Ms. Chan indicated that Ms. Wong should assist in interpreting, and the Officer was more than agreeable to the suggestion, despite the fact that, to this point, Ms. Chan had appeared to the Officer to understand and to communicate in English with respect to all matters covered in the meeting. The Officer testified that Ms. Wong was summoned to the meeting room and actively participated in the communication of the settlement offer made by the employer. Ms. Wong interpreted the offer in Cantonese to Ms. Chan, and they engaged in some short discussion about it. Then, according to the testimony of the Officer and Horst Lutzeier, the owner of the company, the Officer arranged for Ms. Wong and Ms. Chan to consult privately in a cubicle outside the meeting room.
8There is only one dispute, albeit a material one, as to what occurred in the meeting prior to Ms. Wong's admission. As is her usual practice, the Officer permitted the workplace parties to set out their respective positions, followed by opportunities for rebuttal. It appears that some questions were put by the Officer, and that she then offered her opinion of the merits of the claim. The Officer communicated doubt about the validity of the claim in respect of whether the applicant had been dismissed due to pregnancy. What is in dispute is the rationale offered by the Officer. Ms. Chan's testimony was that the reason given by the Officer was that termination due to pregnancy is not a matter governed by the Act, because the Act does not apply to situations in which the child has not yet been born. Ms. Chan stated further that the Officer directed the applicant to the Human Rights Commission (Ms. Chan indeed filed a human rights complaint on June 7, 2000, a few weeks after the meeting with the Officer, but before the issue of the Officer's narrative report disposing of her claim under the Act). The Officer, on the other hand, testified that she made no reference to unborn children. She stated that she made it clear that she thought the applicant's dismissal claim lacked merit because, in her view, the employer did not know of Ms. Chan's pregnant condition when it dismissed her. The Officer testified further that Ms. Chan raised an issue concerning termination on account of illness, and that the Officer advised her that that matter was one for the Human Rights Commission. The Officer denied referring the applicant to the Human Rights Commission.
9The evidence disclosed that in addition to commenting on the lack of merit of the pregnancy portion of the claim, the Officer formed an opinion that the claim could succeed in respect of termination pay. So informed, Mr. Lutzeier offered to settle.
10Ultimately, a settlement was reached that day by the workplace parties. It will be recalled that Ms. Chan testified that at no time was her friend Eva Wong present in the meeting room. Ms. Chan also testified that a document was signed in the meeting following a short break in which the applicant left the room in a distraught state. Ms. Wong, on the other hand, admitted to being in the room for the last part of the meeting, although she denied ever seeing a document, or the signing of such a document, or participating in any way concerning the terms of a settlement. Both the Officer and Mr. Lutzeier gave evidence that Ms. Wong was at one point in the meeting, and communicating in Cantonese to and with Ms. Chan, following which the two of them continued their discussion in private outside the meeting room. It was common ground between Ms. Chan, the Officer and Mr. Lutzeier that the applicant was provided a copy of the document by the Officer, who advised her to take it away and think about its contents over the course of the evening before signing it the next day. It is also common ground between Ms. Chan and the Officer that the Officer informed her that the result of the settlement, that is the amount of $4659, was not going to change whether the applicant signed that day or the next. It was understood that the $4,659 settlement pertained only to termination pay. Ms. Chan read the document prepared by the Officer. She testified that she did not understand all its contents, although she was not specific what portions gave her difficulty. She testified that, prior to signing the document, she did not arrange for Eva Wong to read it, because Ms. Wong had been barred from participating in the meeting.
11The only evidence concerning what the applicant was told by the Officer with respect to the effect of Ms. Chan signing the document was given by the Officer. That evidence was not challenged in cross-examination. The Officer testified that she made it very clear that by signing the document, the applicant was agreeing to full and final settlement of the claim, and that the file would be closed. The Officer further testified that she explained to the applicant that signing the document effectively ended the pregnancy issue (which is why the Officer was concerned that the applicant take some time before signing), and that the applicant stated she would pursue that avenue as a human rights matter.
12Ms. Chan was anxious to finalize the settlement despite the Officer's advice to think the matter over. Ms. Chan was experiencing unspecified financial difficulties and needed the money sooner than later. She executed the document on the understanding that the monies would be paid by the employer expeditiously.
13The document the applicant signed on May 23, 2000 was a single page, standard Ministry of Labour authorization ("the authorization"), in which she authorized the Officer to accept a sum of money on Ms. Chan's behalf. The material portions of the authorization are set out below:
I, Yee Fun Chan hereby authorize and direct the Employment Standards Officer to accept the sum of $4659.20 (Gross) in full and final settlement of my claim made pursuant to the Employment Standards Act respecting my employment with Screen Graphic Productions Ltd. My claim is dated Feb. 22, 2000 and was filed with the Ministry of Labour as number 34002419.
Dated at Scarborough the 23rd day of May, 2000.
In the presence of
Witness "illegible signature" Signature "Yee Fun Chan"
Address 2275 Midland Avenue, Scarborough, Ontario M1P 3E7
Subsection 65 (1.1) of the Employment Standards Act states:
14Within two weeks of signing the authorization on May 23,2000, Ms. Chan contacted the Officer by telephone. There seemed to be an issue regarding the amount of the settlement. Ms. Chan testified that the issue related to the calculation of vacation pay. The Officer's evidence was that the applicant was concerned about the total settlement amount. The Officer offered to explore the applicant's concern as long as Eva Wong was part of the discussion. The conversation ended, and there was no further verbal contact between Ms. Chan and the Officer.
15The Officer issued a narrative report on June 22, 2000 which confirmed her previous determination disposing of the applicant's claim with respect to the pregnancy issue, and noted the settlement of the workplace parties. The applicant made her application for review on August 3, 2000.
Decision
16As is evident from the recitation of the testimony, there were a number of disputes of fact in this matter. Some of those disputes require me to assess the credibility of the witnesses so that I might determine which of the conflicting evidence was most reliable, thus in turn enabling me to determine what most probably happened. In assessing the credibility of each of the witnesses, I considered the clarity with which they gave their evidence generally, their ability to recall what happened, their demeanour while testifying, and the degree to which they resisted the tug of self-interest.
17I find that Ms. Wong's principle role at the meeting of May 23, 2000 was as friend and support to the applicant. Ms. Wong was not, as claimed by the applicant, introduced to the Officer as an interpreter. The Officer strongly denied the applicant's assertion, and Ms. Wong herself could not recall the details of her introduction to the Officer. The Officer testified that there was a clear Ministry policy of permitting interpreters in meetings. It appears to me highly improbable that the applicant was knowingly denied this basic entitlement.
18I also find, contrary to the applicant's contention, that Ms. Wong did participate in the meeting of May 23, 2000. Ms. Wong did not participate initially, but her own evidence was that she was permitted to join the meeting as it drew to a conclusion. I do not accept Ms. Wong's other evidence concerning the level of her participation. She testified that she saw no document, and heard no discussion about it. All the other witnesses, including Ms. Chan, agreed that the final part of the meeting was specifically to consider the settlement. The Officer and Mr. Lutzeier were clear in their testimony that Ms. Wong and Ms. Chan appeared to be engaged in discussion concerning the settlement, and were given a further opportunity to do so in private outside the meeting room. I accept their evidence on this point.
19As for what was communicated to Ms. Chan regarding the reason why the Officer considered the applicant's pregnancy claim to be invalid, the most reliable evidence as between the three witnesses who were present when this was discussed was that of the Officer. Mr. Lutzeier was unable to shed any light on the specifics. Ms. Chan claimed she was told by the Officer that the Act did not cover her situation because her baby was not yet born. On the other hand, the Officer claims she made a determination that Ms. Chan's pregnant condition was not known to her employer at the point of termination.
20Without making any determination as to whether or not the employer did or did not know of the applicant's pregnancy, I find the Officer's explanation for why she found no merit in this part of the claim makes more sense than the version offered by Ms. Chan. I have great difficulty believing that the Officer stated what the applicant contends she heard her say. Given Ms. Chan's less than perfect grasp of the English language, it is possible she simply misinterpreted what the Officer observed about claims of illness falling under the jurisdiction of the Human Rights Commission. Perhaps the Officer understood there to be some issue of pregnancy-related illness being raised by the applicant, and thus the reference to the Human Rights Commission. I do not know. But I find it highly improbable that the Officer refused to deal with the pregnancy portion of the applicant's claim merely because, at the time of her termination, Ms. Chan had not yet given birth. Such a refusal would demonstrate either complete incompetence or bad faith on the part of the Officer. I believe the Officer concluded that the reason for disposing of this portion of the claim related to the Officer's conclusions regarding the employer's ostensible lack of awareness of the applicant's pregnancy, and I so find.
21To summarize, I have found that Ms. Wong participated in part of the meeting of May 23, 2000, and that she assisted Ms. Chan in reviewing the terms of the settlement offered by the employer and documented by the Officer. I have also found that Ms. Chan was not misled by the Officer concerning the Act's application to her claim of dismissal due to pregnancy.
22This brings us to the undisputed facts. On its face, the authorization which Ms. Chan signed is clear in that it disposes of her entire claim. That claim included an allegation that she was dismissed for reasons related to her pregnancy. Mr. Lutzeier believed that his offer to settle, once accepted by the applicant, disposed of all matters in Ms. Chan's claim. The Officer's evidence, not challenged in cross-examination, was that she told the applicant that, by signing the authorization, Ms. Chan was effectively agreeing not to pursue by way of appeal (under the Act) any aspect of her claim. Indeed, Ms. Chan's actions in signing the settlement immediately, and subsequently pursuing her employer through the application of the Human Rights Code, are evidence that she understood the Officer's warning. She needed the monies provided in her settlement under the Act, and so appears to have been willing to take her chances on acquiring further relief through the provisions of another statute.
23Perhaps once removed from the stresses of the day on May 23, 2000, the applicant regretted having entered into the settlement. Soon after, she called the Officer about reviewing its terms. Nothing further developed from that call. The human rights complaint was filed around this same period. Perhaps upon reading the Officer's narrative report of June 22, 2000, Ms. Chan realized she had not understood the true import of what she had agreed to on May 23, 2000. At the hearing in this matter, it appeared to me that Ms. Chan truly felt she had been the victim of misrepresentation. I have found this not to be the case. Whether she misunderstood the significance of signing her name to the settlement or regretted her action in having done so, neither explanation could assist her in this matter. Parties to settlement agreements are entitled to finality. The parties to the settlement were Ms. Chan and the employer. Mr. Lutzeier certainly exercised no coercion or undue influence in the developments leading up to the finalization of the settlement agreement. This is not a case in which the Board should interfere in the dispute-resolution arrangements voluntarily developed by the workplace parties with the assistance of the Officer.
24Because I have found that the applicant entered into a settlement disposing of all aspects of her claim under the Act, including her claim to have been dismissed due to her pregnancy, it follows that the applicant is precluded from seeking further relief through this application for review.
25This matter is terminated.
Patrick Kelly for the Board