Monday, 31 March 2014

Customer Appreciation Event Gone Wrong – HRTO Finds Termination of Employee Retaliatory

Sheri McConaghie was a sales professional for Systemgroup Consulting Inc. from September 8, 2009 until her employment was terminated on March 19, 2012.  She was the only female sales executive with the company throughout her tenure, and worked in a male-dominated industry.  None of that would be particularly remarkable, nor would it have attracted the attention of the Human Rights Tribunal of Ontario (the “HRTO”), but for the events leading up to Ms. McConaghie’s dismissal.

In late 2011, after a new VP of Sales was hired by Systemgroup, it was announced that the employer would be holding two customer appreciation events early in 2012.  The first of these events was to be held in conjunction with “Men’s Day” at the Mansfield Ski Club (where the VP was a member).  While all sales staff were advised that two events were being held, Ms. McConaghie was not provided a calendar invitation for the event at Mansfield, nor was she given any details of the event, which was being offered solely to male staff and certain male customers of the company.  The electronic brochure for the event stated that the event was “A day for Men without Women and Children”, and included the tag line:  “Bring your friends, bring your acquaintances, just don’t bring your wife!”  The calendar invitation that was circulated also included “massage” and “Hooters Girls” as part of the planned activities.

When one of Ms. McConaghie’s clients brought Men’s Day to her attention, she addressed her concerns with being excluded from the event to the VP.  He clarified that only therapeutic massage was being offered and that there wouldn’t be any Hooter’s Girls in attendance (although they had participated in prior years, selling raffle tickets to benefit a program for disabled skiers).  The employer took the position that there was nothing objectionable about the males-only event.  Not surprisingly, Ms. McConaghie was not happy with this response, and took the issue up with the owner and President of the company.  However, she did not make any headway with him either and “agreed to disagree” on the appropriateness of the event.

Subsequent to raising concerns about Men’s Day, the VP ceased having one-to-one meetings with Ms. McConaghie, excluded her from a meeting with a client who would normally fall within the “vertical” she supported, and eventually ended her employment.  The employer asserted that it had long-standing performance concerns with Ms. McConaghie and this was the reason for her dismissal.

The evidence before the HRTO did not establish clearly whether or not the Applicant’s performance was, in fact, improving or stagnating.   However, her performance at the point of termination appeared to show improvement over the prior year.  Moreover, certain workplace issues that were brought forward by the employer were not significant enough to explain the decision and timing of the termination. 

After lengthy analysis of the evidence, the HRTO concluded that the exclusion of the Applicant from the customer appreciation event was discriminatory on the basis of gender, and that the employer’s behaviour after the Applicant raised concerns with Men’s Day amounted to reprisal, contrary to section 8 of the Human Rights Code.  While the employer could establish that there were some areas in which the Applicant needed to improve, it had not put the Applicant on notice that those concerns were critical or that her employment might be in jeopardy.  Looking at the timing of the decision to terminate Ms. McConaghie’s employment (about 5 weeks after she raised concerns about the event), and the absence of any other intervening event that would explain the decision to dismiss her, the HRTO concluded that the employer had no persuasive explanation to rebut the inference that the employer was reacting to the Applicant’s complaint about being excluded from Men’s Day.  This view was also supported by the fact that the Applicant’s VP had effectively cut off communication with her after she made her complaint, and had excluded her from meetings that she would have expected to be involved in.

The Tribunal concluded that the Applicant should receive the lost value of the Men’s Day event ($150), as well as wages for her period of unemployment (from April 16 to October 8, 2013), and damages of $18,000 as compensation for injury to dignity, feelings and self-respect, as well as pre-judgment and post-judgment interest.

While it’s startling that an employer would consider a “men-only” event appropriate in this day and age (particularly where there is diversity among one’s staff and customers), the case is a good reminder that employers still need to be vigilant about the types of events that they sponsor.  Where an employee raises legitimate concerns about how they have been treated, such as an allegation of discrimination, it will take significantly more than ambivalent performance indicators to establish that any negative treatment is unrelated to their complaint. Without compelling evidence, the employer will face potentially stiff sanctions.

If you have further questions about this decision or human rights in the workplace in general, please do not hesitate to contact Lance Ceaser.

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