Human Rights Office

Human Rights Office
Human Rights Office

Cenanovic v. 2332489 Ontario Inc. operating as the Bourbon St. Grill and Weiwei Zhu, 2014 HRTO 1811 (CanLII)

Summary:

On November 15, 2013 the individual respondent, Weiwei Zhu posted an ad on Kijiji for full-time and part-time female servers. The ad read as follows:

(Female Only)

We are looking for full and part-time server (with strong customer service skill. Must be to deal with customers in a fast friendly and efficient manner.

Please send your resume with pic and qualified candidate will be called for interview (para 7).

On November 16, 2013 the applicant, Mr. Cenanovic, replied to the kijiji ad with his resume. On November 17, 2013 the applicant conducted an internet search for human rights lawyers. On November 18, 2013 the applicant called and tape recorded a conversation with Mr. Weiwei. In this conversation Mr. Weiwei reaffirmed his commitment to looking only for female servers. Also on November 18, 2013 the applicant met with Mr. De Bousquet, his legal counsel. This sequence of events is important to the finding rendered in this case. In this case it was found that based on the express wording of the job ad, that the respondents contravened sections 5 and 23(1) of the Code. It was not however found that Mr. Cenanovic was denied the opportunity to be considered for this job because of gender. The reasons provided for this finding were as follows:

  1. In relation to this particular job advertisement, no one was hired. Instead an already existing employee, Mr. Li filled the vacancy
  2. Although the written and verbal intent was to hire a female server the restaurant instead hired Mr. Li, a man.
  3. In this case there is insufficient evidence to establish that the respondents received the applicant’s job application.

In this case the adjudicator was not convinced that the applicant’s job application was bona fide (see timeline above).

Questions to be Determined:

1. Did the respondents, contravene sections 5 and 23(1) of the Code when they posted a job ad on Kijiji for a server that stated “female only”?

2. Did the applicant, Mr. Cenanovic, establish that he was denied the opportunity to be considered for this job because of his gender?

Findings:

1. Did the respondents, contravene sections 5 and 23(1) of the Code when they posted a job ad on Kijiji for a server that stated “female only”?

YES

2. Did the applicant, Mr. Cenanovic, establish that he was denied the opportunity to be considered for this job because of his gender?

NO

Reasoning:

1. In this case there was no dispute that the respondents posted a job ad on Kijiji on November 15, 2013 looking for female servers. In defense of the ad, the individual respondent indicated that his command of the English language is very weak and that he copied and pasted from another Kijiji ad. In this case the individual respondent’s evidence was not accepted for a number of reasons as outlined below.

I do not accept the individual respondent’s evidence for a number of reasons. One, the job ad asked for a picture of the job applicant. In my view, a picture is not necessary to discern an applicant’s job experience and customer service skills. Two, the job ad stated expressly that only females were to apply. Although the applicant’s written English may be weak, he was fluent enough to know the meaning of these words. Three, when the applicant called the individual respondent on November 18, 2013, the individual respondent stated repeatedly that he was looking for females only. Four, in their Response to the Application, the respondents stated the following:

It is my own experiences, sometimes the patrons especially the aged patrons like to talk to female servers. It is my observation and experience that some female servers are more attentive and easy to talk. It is undeniable that in most of companies or food industries, the servers, the front desk receptionists are female. It is not a gender discrimination at all.

Since Evral left, we received many complaints from the patrons asking where Evral was. It is also my own experiences that I was not good for being a server. Sometimes I did not attend to some small details. As such, I honestly planned to hire a female server to replace Evral.

I posed a job opening in Kjiji seeking a female server. I honestly wished to hire a female server to replace Evral. I honestly believed that I could post the job opinion for a female server (para 28).

As stated above in this case the applicant, Mr. Cenanovic, did not establish that he was denied the opportunity to be considered for this job because of his gender. The reasons provided for this finding were as follows:

1. In relation to this particular job advertisement no one was hired. Instead an already existing employee, Mr. Li filled the vacancy

In my view, the applicant has failed to establish that his job application was not considered because of his gender for the following reasons. One, although the respondents indicated that they intended to hire a server, they did not hire anyone in    response to the job ad because Mr. Li was hired. I accept the individual respondent’s evidence in this regard and it is supported by the payroll records that were filed. Once Mr. Li was hired, the respondents’ staffing complement of two part-time servers was filled (para 41).

2. Although the written and verbal intent was to hire a female server the restaurant instead hired Mr. Li, a man.

Two, although the respondents indicated an intention to hire a female server in the job ad and during the taped telephone conversation between the individual respondent and the applicant, the respondents hired Mr. Li, a male employee (para 42).

3. In this case there is insufficient evidence to establish that the respondents received the applicant’s job application.

Three, there is insufficient evidence to establish that the respondents received the applicant’s job application. While the applicant produced evidence of his job application to Kijiji, there is no evidence that Kijiji sent it to the respondents. Although the applicant took steps to identify the restaurant and its owner, he did not apply to the restaurant directly, notwithstanding his evidence that he applied for jobs in this way (para 43).

4. In this case the adjudicator was not convinced that the applicant’s job application was bona fide (see timeline above).

In this case, there are several reasons to doubt the sincerity of the applicant’s job application. The applicant has never worked in a fast-food restaurant. He has worked as a bartender or server in restaurants; working in a food court is very different. Although the applicant testified that he applied to more than 50 jobs through the internet and by dropping off resumes at restaurants and bars, there is no documentary evidence of the applicant’s job hunt prior to November 2013, the period of time that he was ostensibly looking. Within 48 hours of responding to the job ad on Kijiji, the applicant took steps to retain a lawyer. This suggests the applicant’s primary concern was the content of the ad, rather than being denied consideration for the job. Finally, I am concerned about Mr. De Bousquet’s communications with the individual respondent and his message that he would owe “a lot of money”. This raises the question in my mind regarding the purpose of filing the Application (para 44).

Remedy:

Cenanovic v. 2332489 Ontario Inc. operating as the Bourbon St. Grill and Weiwei Zhu, 2015 HRTO 833 (CanLII)

In this case the applicant requested $25,000 in monetary compensation in addition to an order requiring the respondents to retain an expert in human rights law to assist them in revising policies and procedures and provide human rights training. In addition the applicant requested an order requiring the respondents to post a copy of the Code beside the food permit in the restaurant (para 6).

In this case none of these request for remedy were awarded. Dealing with the issue of compensation it was stated that,

The real difficulty with respect to the applicant’s request for compensation is that he failed to give any evidence on the impact of seeing the job ad. The applicant’s evidence dealt mainly with the impact of being rejected for the job. Because the applicant did not give any evidence about the impact of the ad itself, I can only conclude its effect was minimal or non-existent (para 13).

In the absence of sufficient evidence from the applicant concerning the impact of the job ad coupled with the fact that it is questionable as to whether the applicant was a  bona fide job applicant, I am making no award for monetary compensation. The purpose of monetary compensation under section 45.2 of the Code is to remedy the loss arising from the infringement. In this case, there is no evidence that the applicant experienced a loss relating to the posting of the Kijiji ad alone (para 14).

In response to the systemic orders requested by the applicant it was found that these had already been implemented by the respondents and that there was no need for any further orders.