Human Rights Office

Human Rights Office
Human Rights Office

Maciel v. Fashion Coiffures, 2009 HRTO 1804 (CanLII) 

Summary

Jessica Maciel, the applicant, was hired to work as a receptionist in two related salons operated by the respondent in the Erin Mills Town Centre. At the time when she was hired she was just over four months pregnant, but the employer was not aware of her pregnancy when signing the employment contract.

The parties agree that the applicant commenced work at Nino D’Arena on August

11, 2008 in the morning. The person training Ms. Maciel was Meena Gaidhu. With respect to what happened that morning, the parties’ versions are in conflict. Maciel states that one hour into her first day shift she experienced nausea and went to the washroom. When she returned Ms. Gaidhu, who was training her, asked if she was okay, and at that point, the applicant disclosed her pregnancy. Ms. Gaidhu then explained that there were some problems related to pregnancy and employment in the past and that Ms. Maciel should talk immediately with Ms. Conforti, the business manager. The applicant followed this advice and had a meeting with Ms. Conforti that morning.

The applicant testified that the meeting went well. Ms. Conforti congratulated her on her pregnancy. Then her tone changed and she expressed concern about the applicant’s long-term availability. The applicant told her that she was there for the long term, but this did not satisfy Ms. Conforti’s concerns. The applicant said that to allay

Ms. Conforti’s concerns she offered to work part-time to see how it worked out, but this did not seem to make any difference. Ms. Conforti told the applicant she would speak to “head office” and let her know the decision. Soon after this conversation, the applicant was let go. The following day, the applicant received a phone call from Ms. Conforti, who told her she could not fill the receptionist position for which she had been hired because she would be going off on maternity leave.

Ms. Conforti testified that the applicant asked to meet on her first day of employment stating that she no longer wanted a full-time position and asked for a part-time position. Ms. Conforti did not ask any questions about the change, and testified that she advised the applicant that she had no part-time work to offer her in the two salons she managed. Right after, she did not see a point in moving forward with the training and sent Ms. Maciel home. After that first phone call, Ms. Conforti testified that she wrote a letter in which she advised the applicant that she had been hired into a position with set hours and reiterating that she did not have a part-time position to accommodate the applicant’s request for 20 hours a week. Ms. Conforti claims no knowledge of the pregnancy.

Even though the parties presented two opposite views of the events, the Court found Ms. Maciel’s version more believable, because there was no credible reason given for why the applicant, having applied for and accepted a full-time position, would propose on her first day of employment that she wanted to work part-time.

Moreover, during the trial, Ms. Conforti’s counselor consulted the OHRC’s Policy on Pregnancy, which was deemed “strange” by the Judge especially if, as the respondent asserted, she had never disclosed her pregnancy to Ms. Conforti.

For these reasons, the Court established a prima facie case of discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 10(2) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19; and it determined the total of $35,719 in reparation for wage loss, maternity leave benefits loss, and compensation for injury to her dignity, feelings and self-respect.

 

Question to be Determined

  1. Is there a prima facie case of discrimination on the basis of sex (pregnancy), contrary to the Code?

Findings

  1. Is there a prima facie case of discrimination on the basis of sex (pregnancy), contrary to the Code?

YES

Reasoning

In this case, there are several factors that lead the Court to prefer the applicant’s version of events over the respondents’ version:

First, there was no credible reason given for why the applicant, having applied for and accepted a full-time position, would propose on her first day of employment that she work part-time… The question of hours highlights another problem with the respondents’ case, namely Ms. Conforti’s complete lack of curiosity about what the applicant meant when she purportedly asked for 20 hours a week. (para. 33)

After the dismissal and a phone call, Ms. Conforti wrote a letter to the applicant stating that no part-time work was available:

I find it inconsistent that she would go to the effort of confirming that there was no part-time position and specifically set out which hours the applicant was expected to work, but then shred the contract of employment between the parties. This carefully constructed letter is more consistent with the applicant’s evidence that in one of the post-termination telephone calls she advised Ms. Conforti that it was discriminatory to fire someone because they were pregnant and asked for her contract of employment. (para. 41)

Finally, the Court dismissed the two examples of previous maternity leave accommodations that Ms. Conforti had made, these were deemed as irrelevant to the case.

 

Remedy

The Court awarded compensation of $35,719 in reparation for wage loss, maternity leave benefits loss, and compensation for injury to her dignity, feelings and self-respect.

$9,060.00 – loss of employment income

$11,659.00 – loss of maternity and parental leave benefits

$15,000.00 – compensation for injury to her dignity, feelings and self-respect