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Human Rights Office

Lugonia v. Arista Homes, 2014 HRTO 1531 (CanLII)

Summary:

In this case, the applicant, Amanda Lugonia, was hired by Arista Homes to fill a one year pregnancy leave. Ms. Lugonia was hired to be the receptionist.  In total Ms. Lugonia worked three shifts with Arista Homes. During the applicant’s third shift she disclosed to Ms. Giulekas, the receptionist leaving on pregnancy leave who she was currently shadowing, that she herself was pregnant. During this conversation Ms. Lugonia asked Ms. Giulekas to keep the information regarding her pregnancy confidential. On this third shift of work, Ms. Lugonia was presented with her employment contract and confidentiality agreement. On her fourth shift, Ms. Lugonia was approached by Mr. Sistilli, the respondent’s Chief Financial Officer that they were going to have to let Ms. Lugonia go. The rationale provided to Ms. Lugonia was that the company was going to “rethink” the position. After Ms. Lugonia was let go, another receptionist was hired to fill Ms. Giulekas’ pregnancy leave. In this case the applicant argued that she had met her onus of establishing that it is more probable than not that she was terminated due to her pregnancy. The applicant submitted that the timing of her termination and the circumstances surrounding it supported an inference of discrimination. In this case the rationale provided as to why Ms. Lugonia was terminated was described as trivial. In this case it was believed that Ms. Lugonia’s testimony was more credible than the testimony of other witnesses. It was decided that Ms. Lugonia was discriminated against contrary to section 5 of the Code.

Question(s) to be Determined:

1.    Was the applicant, Amanda Lugonia discriminated against contrary to section 5 of the Code?

Findings:

1.    Was the applicant, Amanda Lugonia discriminated against contrary to section 5 of the Code?

YES

Reasoning:

1.    In this case it was found that the testimony provided by Mr. Sistilli and Ms. Cesarone, Ms. Lugonia’s supervisors was not credible when considered in the context of the evidence as a whole.

It was stated, “to begin, I find that the timing of the applicant’s termination supports an inference that Ms. Cesarone and/or Mr. Sistilli were aware of the applicant’s pregnancy. The applicant had just told Ms. Giulekas about her pregnancy the shift prior to her termination. There were absolutely no signs of any dissatisfaction on the respondent’s part as of the end of the applicant’s third shift and suddenly she was terminated at the beginning of her fourth shift. While not conclusive, this timing raises questions about whether the respondent was in fact aware of the applicant’s pregnancy and terminated her for that reason” (para 69).

In this case Ms. Giulekas testified that in passing she had made comments to Ms. Cesarone about Ms. Lugonia, asking questions related to the role regarding start time and the benefits provided to other employees (Ms. Lugonia was not provided time for sick leave or vacations because of her 1 year contract). In this case, the respondent relied upon these comments in justifying the decision to terminate Ms. Lugonia.

Disputing this rationale for termination it was stated, “In this case, I simply do not accept that the respondent terminated the applicant’s employment based on one or, as the respondent suggests, two sets of comments made by Ms. Giulekas to Ms. Cesarone in passing on the applicant’s third day of employment. I simply do not find it credible that these comments made in passing would lead the respondent to summarily dismiss the applicant without taking any further steps to clarify the comments, to get more details from Ms. Giulekas, to confirm what the applicant had said, to raise the issue with the applicant or to warn the applicant about her conduct if it was of such great concern to the respondent. The respondent had just spent weeks running a hiring competition for a receptionist to replace Ms. Giulekas during her pregnancy leave. Based on the evidence at the hearing, it was evident that the respondent was impressed with the applicant’s performance in the job interviews. I do not find it credible that they would summarily dismiss the applicant based simply on the comments shared in passing by Ms. Giulekas” (para 72).

Remedy:

In this case the applicant sought lost wages from the date of her termination to the date she started her maternity leave. She also sought lost Employment Insurance (“EI”) maternity and parental benefits for which she would have been eligible is she had not been terminated.

The applicant testified that she looked for work from the date of her termination (August 15, 2013) till December 2013. However, the earliest job applications that she submitted into evidence were from November 29, 2013. The applicant stated that applications submitted prior to November 29, 2013 were mistakenly deleted. This testimony from the applicant was not considered credible and it was decided that the applicant had failed to mitigate her losses during the early portion of her unemployment. Therefore, no award for compensation of lost wages or lost EI benefits was given in this case.

ORDER:

The respondent shall pay the applicant $15,000 as monetary compensation for injury to her dignity, feelings and self-respect;
The respondent shall pay to the applicant pre-judgment interest on the amount due under paragraph b. calculated pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as of August 15, 2013, the date on which the applicant was terminated;
The respondent shall pay to the applicant post-judgment interest from the date of this Decision, calculated pursuant to s. 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43; and
Within three months of the date of this Decision, Arista Homes shall retain at its own expense an expert in human rights to assist in the development and implementation of a comprehensive human rights policy for the organization which includes provisions relating to pregnancy-related discrimination. The policy shall be finalized within six months of the date of this Decision and copies provided to all current employees and, in future, to all new employees. Once the policy is finalized, the respondent shall also deliver a copy of the policy to the applicant and her counsel.