Co-Worker’s Text Messages Form the Basis of Human Rights Complaint: Employer Not Liable

August 21, 2014

Shortly after finding out she was pregnant, the Applicant exchanged text messages with a friend who worked for the Employer restaurant about potential vacancies. The friend told the Applicant that the Employer was looking to hire a server. The Applicant was interested in the position and met with the friend to discuss it further. The friend was aware of the Applicant’s pregnancy; however, advised the Applicant not to mention her pregnancy to her supervisor until the Employer had a chance to see how the Applicant was performing in her new role.

Although the Employer was only advertising for three server positions, the Applicant was ultimately hired as one of five new servers. Subsequent to her hiring, she worked a total of 15 hours for the Employer over the course of two weeks. The Applicant then received a series of text messages from the friend which stated that the owner had found out she was pregnant and did not think she could do her job as she got bigger. Thereafter, the Applicant received a call from one of the co-owners of the Employer informing her that she was being terminated due to performance issues. The Applicant filed an Application with the Human Rights Tribunal of Ontario against the Employer alleging that she was discriminated against based on sex and pregnancy pursuant to the Human Rights Code (the “Code”).

The Employer maintained that its decision to terminate the Applicant was based on her performance issues including that she was not well suited to the job and was unavailable to work Saturdays. In addition, the Employer asserted that they were not aware that she was pregnant until after her termination. In respect to the friend’s text messages, the Employer states that the friend was a “rogue” employee with no authority to terminate the Applicant and the contents of her text messages were simply lies.

The Tribunal ultimately dismissed the Application after finding that there was insufficient evidence to establish that the Applicant’s pregnancy was a factor in her termination. The Tribunal found that the Employer, along with other employees, had issues with the Applicant’s performance. In addition, the Employer had advised all the new servers that the position was not for everyone and many servers did not last very long. Indicative of this fact was that the Employer originally hired five servers to fill three positions, expecting that all five would not work out.

The Tribunal went on to consider whether the friend’s texts constituted harassment under the Code; however, ultimately held that even if the friend’s conduct amounted to harassment under the Code the Employer could not be held liable. The Employer was unaware of the texts initially but then once aware asked the Applicant to send them the text messages but she refused. The Employer then made inquiries of the friend regarding the texts but she denied knowing what the Applicant was talking about. The Tribunal found that, at that point, there was nothing further the Employer could do.

This decision illustrates the impact new technology can have in the workplace as well as the importance of employers taking positive steps to investigate and address harassing behaviour by its employees in the workplace. The Tribunal was clear that an employer could be held liable for the harassing behaviour of its employees if the employer fails to take reasonable steps to correct the behaviour.

Baker v. Twiggs Coffee Roasters, 2014 HRTO 460

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