Rabinovich v. Chemainus Inn Management Services Inc. (No. 2), 2024 BCHRT 302
Date Issued: October 29, 2024
File(s): CS-001026
Indexed as: Rabinovich v. Chemainus Inn Management Services Inc. (No. 2), 2024 BCHRT 302
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Yulia Rabinovich
COMPLAINANT
AND:
Chemainus Inn Management Services Inc. dba Best Western Plus Chemainus Inn
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Sonya Pighin
On their own behalf: Yulia Rabinovich
Counsel for the Respondent: Jeffery Drozdiak
Dates of Hearing: March 5 – 6, 2024
Written Submissions: April 15, 2024
Location of Hearing: Microsoft Team (Virtual)
I INTRODUCTION
[1] On December 3, 2019, Yuli Rabinovich began work as a front desk agent at Best Western Plus Chemainus Inn [ Best Western ]. Her employer was Chemainus Inn Management Services Inc. [ CIMS ], a company that provides operational and management services to Best Western. CIMS is responsible for Best Western’s front desk and room bookings, house keeping, janitorial services, breakfast services, and hotel maintenance.
[2] On February 5, 2020, Ms. Rabinovich filed a complaint with the Tribunal alleging that after she told one of CIMS employees that she was pregnant, CIMS discriminated against her based on her sex, contrary to s. 13 of the Human Rights Code [ Code ], by reducing her work hours and then terminating her employment because she was pregnant.
[3] CIMS denies reducing Ms. Rabinovich’s work hours and that her pregnancy was a factor in any reduction of work hours that occurred. It says that it assigned Ms. Rabinovich’s work hours based on the hotel’s current demands, availability of staff, and the seniority and competency of staff. CIMS also denies that Ms. Rabinovich’s pregnancy was a factor in its termination of her employment. It says it terminated her employment solely based on performance issues. It further says its representatives, who were responsible for the decision to terminate her employment, made that decision on January 13, 2020, and that when they made it, they were not aware of her pregnancy.
[4] The Tribunal conducted a hybrid hearing of the complaint. On March 5 and 6, 2024, the parties gave their evidence via Microsoft Teams. Ms. Rabinovich provided evidence on her own behalf. Tyson Beswick also provided evidence on her behalf. David Hillmer and Bruce Adamson each provided evidence on behalf of CIMS. Between March 26 and April 15, 2024, the parties provided written closing submissions to the Tribunal.
[5] I have considered all the parties’ evidence and submissions in this decision. However, I only refer to those parts that are necessary to explain it.
II PROVING DISCRIMINATION UNDER SECTION 13 OF THE CODE
[6] I now turn to what Ms. Rabinovich must prove to establish that discrimination occurred contrary to s. 13 of the Code . Section 13 of the Code provides, in part, that:
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment
because of the … sex … of that person …
(4) [Subsection (1) does] not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
[7] To prove discrimination under s. 13 of the Code , Ms. Rabinovich must establish that:
a. She is a person with a protected characteristic under s. 13 of the Code , which includes a person’s sex;
b. She experienced an adverse – or negative – impact with respect to CIMS reduction of her work hours and /or its refusal to continue to employ her; and
c. Her protected characteristic – sex – was a factor in the adverse impact she experienced: Code at s. 13; Moore v. BC (Education), 2012 SCC 61 at para. 33
[8] There are two ways CIMS can defend against Ms. Rabinovich’s complaint. First, it can establish that Ms. Rabinovich has failed to prove one of those matters set out above. It has made arguments to this effect.
[9] Alternatively, if Ms. Rabinovich proves each matter set out above, CIMS may defend against her complaint by proving that its actions were not discrimination because they were based on a bona fide occupational requirement: Code , at s. 13(4); British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1996] 3 S.C.R. 868: at para 20. CIMS has not argued this, so I do not set out the legal test for proving it.
III DECISION AND ORDER
[10] Ms. Rabinovich has not proven that CIMS discriminated against her contrary to s. 13 of the Code by reducing her work hours, or by terminating her employment, because of her sex. First, she has not established that CIMS reduced her work hours. Second, she has not established that her pregnancy was a factor in its decision to terminate her employment.
[11] Under s. 37(1) of the Code , I make an order dismissing the complaint in its entirety.
[12] I will now explain my reasons for this decision and order. However, first, I wish to recognise that CIMS’ termination of Ms. Rabinovich’s employment could not have come at a worse time for her. Her husband had just had a major surgery and was on medical leave, and they were expecting a baby to arrive a few months later. I would not wish these circumstances on anyone, and I am sorry to hear about the additional stress that Ms. Rabinovich’s loss of employment caused her to experience.
IV ANALYSIS
A. Background
[13] Before moving on, I provide background details about CIMS’ structure, its hiring and training of Ms. Rabinovich, when and how it became aware of Ms. Rabinovich’s pregnancy, who at CIMS has authority to make decisions about hiring and termination of employment contracts, and CIMS notice to Ms. Rabinovich that it is terminating her employment.
[14] CIMS has a General Manager who works with Department Managers to oversee its operations. The General Manager is responsible to CIMS’ board of directors, through its President and Treasurer. During all times relevant to the complaint, Mr. Hillmer was CIMS’ President and Mr. Adamson was its Treasurer. On the recommendation of Department Managers and /or the General Manager, Mr. Hillmer and Mr. Adamson made all final decisions about the hiring and firing of CIMS’ employees.
[15] In December 2019, when CIMS hired Ms. Rabinovich, Mr. Beswick was the Front Office Manager. He interviewed Ms. Rabinovich and then recommended to the General Manager, Mr. Hillmer, and Mr. Adamson that CIMS hire her. They agreed and approved the hiring of Ms. Rabinovich. Then, Mr. Beswick offered Ms. Rabinovich part time employment as a Front Desk Agent, and she accepted.
[16] On December 3, 2019, Ms. Rabinovich began working at CIMS.
[17] On January 20, 2020, Ms. Rabinovich told CIMS’ General Manager that she was pregnant, and that her baby was due in late February or early March. The General Manager responded by saying that Ms. Rabinovich did not look pregnant. This is the first time anybody at CIMS knew of Ms. Rabinovich’s pregnancy. It is undisputed that by January 20, 2020 Ms. Rabinovich’s pregnancy was not visibly obvious, and that before that date Ms. Rabinovich did not tell anybody else at CIMS of her pregnancy.
[18] On January 31, 2020, Mr. Beswick advised Ms. Rabinovich that CIMS has terminated her employment. While he delivered this news to Ms. Rabinovich, neither he nor the General Manager had authority to approve the termination of her employment. CIMS provided uncontradicted evidence, and Ms. Rabinovich did not dispute, that Mr. Hillmer and Mr. Adamson made the decision to terminate her employment.
B. Issues in Dispute, Credibility and Reliability
[19] I start with the facts that the parties are in dispute over. First, regarding the alleged reduction of hours, there is a dispute about whether CIMS reduced Ms. Rabinovich’s hours after January 20, 2020. Related to this question are disputes about what Ms. Rabinovich’s hours were before January 20, 2020, and whether CIMS guaranteed Ms. Rabinovich three to four shifts per week when it hired her. If there was a reduction in hours, there is a dispute about whether her pregnancy was a factor in CIMS’ decision to reduce her hours. Second, there is a dispute about whether pregnancy was a factor in CIMS’ termination of Ms. Rabinovich’s employment. More specifically, when did Mr. Hillmer and Mr. Adamson decide to terminate Ms. Rabinovich’s employment, and was her pregnancy was a factor in that decision?
[20] Given that the parties are in dispute over key facts relevant to the complaint, and their witnesses gave conflicting testimonies about some of those facts, I must assess those witnesses’ credibility and reliability regarding their conflicting testimonies. As such, I comment on how I have addressed issues of both credibility and reliability throughout this decision.
[21] Credibility has to do with the truthfulness of a witness’s testimony. Reliability has to do with the accuracy of that testimony, including the witness’s ability to accurately observe, recall, and recount what happened. Credibility addresses whether a witness is telling the truth, and reliability is about an honest mistake: R. v. J.M. , 2021 BCCA 263 [ J.M. ] at para. 53. Where I have made decisions about a witness’s credibility, I have started from the presumption that the witness is telling the truth: Hardychuk v. Johnstone , 2012 BCSC 1359 at para. 10. I have then considered whether the person’s testimony:
a. is internally consistent, including whether they change it in cross-examination and their ability to resist the influence of interest to modify their recollection:Bradshaw v. Stenner , 2010 BCSC 1398 [ Bradshaw ] at para. 186; J.M. at para. 53.
b. harmonizes with independent or external evidence that I accept, such as a corroborating witness’s evidence, documentary, or other evidence: Bradshaw at para. 186; J.M. at para. 53.
c. seems unreasonable, impossible, or unlikely: Bradshaw at para. 186; J.M. at para. 53.
d. is in “balance,” meaning they had an apparent willingness to be fair and forthright considering any potential interests, motives, or biases: Bradshaw at para. 186; Van Hartevelt v. Grewal , 2012 BCSC 658 [ Van Hartevelt ] at para. 31; J.M. at para. 53.
e. is overall plausible, meaning it fits into the general picture revealed by all the evidence, or it is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognise as reasonable in that place and in those conditions: Faryna v. Chorny , [1951] B.C.J. No. 152 at para. 11; Bradshaw at para. 186; Van Hartevelt at paras. 33 and 34.
[22] I now turn to my findings, the reasons for those findings, and why I am not satisfied that Ms. Rabinovich has proven discrimination occurred.
C. Has Ms. Rabinovich proven that she has a protected characteristic under s. 13 of the Code ?
[23] First, the parties are not in dispute over whether Ms. Rabinovich has proven she has a protected characteristic under s. 13 of the Code . Ms. Rabinovich provided uncontradicted evidence that she was pregnant during her employment at CIMS. It is established law that discrimination due to pregnancy constitutes discrimination because of sex: Brooks v. Canada Safeway Ltd. , [1989] 1 SCR 1219. Ms. Rabinovich’s evidence about her pregnancy is sufficient to establish that she has the protected characteristic of sex under s. 13 of the Code .
D. Has Ms. Rabinovich proven she experienced an adverse impact when, after January 20, 2020, Chemainus Inn Management Services Inc. reduced her hours of work?
[24] Ms. Rabinovich argues that, after January 20, 2020, CIMS reduced her work hours. She says before January 20, 2020, CIMS assigned her to four to five shifts per week, and it asked her to work multiple extra shifts during peak hotel bookings. However, after she disclosed her pregnancy to the General Manager, CIMS drastically reduced the number of shifts it scheduled her to work. She points to the front desk schedules in support of her arguments.
[25] CIMS argues that it hired Ms. Rabinovich as a part-time employee, and it assigns shifts to front desk agents based on their seniority and the number of forecasted arrivals and departures on any given day. However, its schedules do not dictate how many shifts a front desk agent may end up working on any given week because the schedule can change as the number of bookings change. CIMS further argues that, after January 20, 2020, it did not reduce the number of shifts it assigned to Ms. Rabinovich. It points to the front desk schedules for the weeks before January 20, 2020 (January 12 to 18, 2020) and after January 20, 2020 (February 2 to 7, 2020), and say they are similar.
[26] Ms. Rabinovich has not proven that, after January 20, 2020, she experienced an adverse impact when Chemainus Inn Management Services Inc. reduced her scheduled work hours because she has not established that it made any reduction to her scheduled work hours. On this basis I have dismissed the part of her complaint that says CIMS reduced her work hours due to her pregnancy. I will now explain how I made this finding.
[27] Mr. Adamson provided uncontradicted testimony that CIMS prepares front desk schedules one to two weeks in advance, and then provides its front desk agents their work schedules for the upcoming weeks. If an employee is not available to work a scheduled shift, that employee will work with their manager to adjust the schedule. Both Mr. Adamson and Mr. Beswick provided uncontradicted testimony that CIMS prepares schedules, in part, based on occupancy forecasts. Mr. Adamson said a computer program populates the forecasts, and those forecasts change as bookings are added into the system. Both testified that if occupancy forecasts change, shift schedules may also change. A person may end up working less shifts than CIMS scheduled them for, or CIMS could give them additional shifts.
[28] Ms. Rabinovich has not convinced me that, after January 20, 2020, CIMS reduced her scheduled work hours. First, I am convinced that throughout Ms. Rabinovich’s employment with CIMS, it did not provide her a set number of shifts per week. The number of shifts it scheduled for her per week fluctuated, going both up and down throughout her employment. When Mr. Beswick hired Ms. Rabinovich, he told her that she could expect 3 to 4 shifts per week based on CIMS current staffing and hotel demands. However, he also told her that shift scheduling is dependent on demand at the hotel. There is no evidence that he guaranteed her CIMS would schedule her for a minimum number of shifts per week.
[29] Second, when a person has a fluctuating schedule, and the employer schedules them for a number of shifts that is on the low end of the range within which that schedule fluctuates, I do not consider this to be a reduction of work hours. For a person with a fluctuating schedule to show that their employer reduced their work hours, they must establish either that the employer has:
a. scheduled them for less shifts than the number of shifts that is on the low end of how many shifts they generally receive in their fluctuating schedule; or
b. consistently scheduled them for more than a specified number of shifts per week and then scheduled them less than that specified number of shifts on a particular week.
[30] Ms. Rabinovich has not established that, after January 20, 2020, CIMS scheduled her for less shifts than the number of shifts that is on the low end of how many shifts they generally gave her. Nor has she established that, before January 20, 2020, CIMS consistently scheduled her for more than one shift per week and then, after January 20, 2020, it scheduled her for only one shift for the week of February 2 to 8, 2020.
[31] Ms. Rabinovich worked for CIMS for a total of nine weeks. Only once, CIMS scheduled her to work five days in a week. During the remaining eight weeks of her employment, it scheduled her twice to work four days in a week, twice to work three days in a week, twice to work two days in a week, and twice to work one day in a week. One of the occasions where it scheduled her to work one day in a week was for the week before January 20, 2020.
[32] I have based my findings on the front desk schedules provided by CIMS to the Tribunal, the accuracy of which Ms. Rabinovich has not challenged. Those front desk schedules illustrate that during the weeks of:
a. December 8 to 14, 2019, CIMS scheduled Ms. Rabinovich to work three shifts.
b. December 15 to 21, 2019, CIMS scheduled her to work four shifts.
c. December 22 to 28, 2019, CIMS scheduled her to work five shifts.
d. December 29, 2019 to January 4, 2020, CIMS scheduled her to work two shifts.
e. January 5 to January 11, 2020, CIMS scheduled her to work three shifts.
f. January 12 to 18, 2020, CIMS scheduled her to work one shift, and it marked an additional shift on the schedule with “TBD” beside her name. It is during this week that the Respondents say they decided to terminate her employment.
g. January 19 to 25, 2020, CIMS scheduled her to work two shifts. It was on her second shift of this week that she told the General Manager she was pregnant.
h. January 26 to February 1, 2020, CIMS scheduled her to work four shifts. It was on her last shift of this week that Mr. Beswick told her that CIMS terminated her employment.
i. February 2 to 8, 2020, CIMS scheduled her to work one shift. However, she did not work that shift because, on January 31, 2019, it terminated her employment.
[33] In summary, Ms. Rabinovich has not proven that CIMS reduced her shifts, after January 20, 2020, when she told the General Manager about her pregnancy. It follows that CIMS could not have reduced her shifts because she told it she was pregnant. I now move on to whether Ms. Rabinovich has proven she experienced an adverse impact regarding CIMS’ termination of her employment.
E. Has Ms. Rabinovich proven she experienced an adverse impact regarding Chemainus Inn Management Services Inc.’s termination of her employment?
[34] When CIMS terminated Ms. Rabinovich’s employment, her loss of that employment was an adverse impact that she experienced regarding her employment. It is widely accepted by the Tribunal, and I am also willing to accept, that when a person’s employment is terminated, their loss of that employment is, in itself, an adverse impact regarding their employment: For example, see Carney v. Pro‐Can Construction Group , 2020 BCHRT 62 at para. 22 ; Richardson v. Great Canadian Casinos and another , 2019 BCHRT 265 at para. 140; Lewis v. Hour of Power Canada and another , 2018 BCHRT 251 at para. 69; Eva obo others v. Spruce Hill Resort and another , 2018 BCHRT 238 at para. 92; Suen v. Envirocon Environmental Services (No. 2) , 2017 BCHRT 226 at para. 35.
[35] I now move on to whether Ms. Rabinovich has proven that her pregnancy was a factor in her experiencing the loss of her employment.
F. Has Ms. Rabinovich proven her pregnancy was a factor in the adverse impacts she experienced?
1. The parties’ arguments
[36] In essence, Ms. Rabinovich argues that her pregnancy was at least a factor in CIMS’ decision to terminate her employment, which would make it a factor in her adverse impact (loss of employment). She argues that CIMS disliked the idea of having a pregnant employee as the greeting agent and face of Best Western, so when it found out she was pregnant, it terminated her employment.
[37] CIMS disagrees with Ms. Rabinovich and maintains that it terminated her employment for purely non-discriminatory reasons, namely due to her having had poor job performance. It says it made the decision to terminate her employment before she disclosed her pregnancy to it. CIMS argues that, on January 13, 2020, Mr. Hillmer and Mr. Adamson held a meeting and decided to terminate Ms. Rabinovich’s employment. They made their decision based solely on their understanding of Ms. Rabinovich’s performance in the role of Front Desk Agent, and that neither of them were aware of her pregnancy at the time.
[38] Ms. Rabinovich argues that CIMS has not proven that Mr. Hillmer and Mr. Adamson decided to terminate her employment at a meeting held on January 13, 2020. She points out that CIMS provided no documentary evidence that could support their testimony about this meeting having occurred. Further, she argues that Mr. Hillmer and Mr. Adamson’s evidence about the meeting is inconsistent with that of Mr. Beswick. She points out that, during cross-examination, Mr. Beswick did not confirm that he attended the January 13, 2020 meeting.
[39] Next, I turn to the parties’ evidence about what happened leading up to and during CIMS’ decision to terminate Ms. Rabinovich’s employment, and CIMS’ delivery to Ms. Rabinovich of its decision to terminate her employment.
2. Evidence about Chemainus Inn Management Services Inc.’s training and supervision of Ms. Rabinovich
[40] I start with CIMS’ training of Ms. Rabinovich. CIMS trained Ms. Rabinovich by having her participate in a Best Western University course and undertake Front Desk Agent tasks under the supervision of other employees. Whomever the most senior employee was on a given shift was responsible for supporting and overseeing Ms. Rabinovich in her completion of tasks and reporting back to Mr. Beswick on her performance. Mr. Beswick then reported to the General Manager on her performance.
[41] From the time that Mr. Beswick hired Ms. Rabinovich to the day he left on holidays, which was January 16, 2020, Mr. Beswick directly trained and oversaw Ms. Rabinovich in her position at CIMS. He watched Ms. Rabinovich check guests in, listened to her while she answered phone calls, and oversaw her interactions with guests.
[42] Mr. Beswick described Ms. Rabinovich as a very sweet, caring, and kind person with impeccable personal service skills. He also said that she was reliable, a good worker, and had one of the best customer service skillsets that he had ever seen. However, he also said that:
a. Guests’ responses to their interactions with her varied. Some guests appeared to enjoy talking to her while she served them. Other guests became impatient and cranky, and got frustrated with her.
b. Ms. Rabinovich had a difficult time remembering all the information that guests gave her on the phone, and Mr. Beswick observed guests become frustrated with her for this.
c. Ms. Rabinovich had a difficult time documenting information from some guests who were fast with giving it to her, which resulted in her taking more time to complete their reservation, and they became frustrated with how long she took.
d. Ms. Rabinovich struggled with her ability to use technology. When it came to her technological skills, she needed more time, training and support.
e. The Best Western University course includes two or three instructional videos that address maintaining guest’s privacy, and sometime before January 16, 2020, Mr. Beswick had to have a discussion with Ms. Rabinovich about “credit card information and putting things in her book.” He said he told her this is a “big no-no,” and that she “can’t do that ever.”
f. The training for new Front Desk Agents should take no longer than one to two months, and Ms. Rabinovich’s training was taking longer than it took for other Front Desk Agents. When Mr. Beswick left for holidays, six weeks into her training, he still considered her in need of training.
[43] Mr. Beswick testified that he reviewed Ms. Rabinovich’s guest reservations, and he did identify errors in them. However, he could not recall what the errors were and said that everyone makes errors on the forms, including himself. He also testified that, generally, a new Front Desk Agent takes up to fifteen minutes to complete a guest reservation, and that once fully trained and experienced they can reduce this to between one and three minutes, depending on the reservation. He said Ms. Rabinovich took anywhere from ten to thirty minutes to complete a reservation, which was longer than it took other trainees to do the same task. However, he said he could recall other Front Desk Agents taking similar amounts of time to complete a reservation during their training periods.
[44] According to Mr. Beswick, other Front Desk Agents also complained to him about Ms. Rabinovich, and they complained to her face. However, he did not provide any details about what those complaints included.
[45] Last, Mr. Beswick testified that while he was training Ms. Rabinovich, he was new to the position of Front Desk Manager, he was going through a lot of personal things, and he wishes he could have done a better job in training her.
3. Evidence about Mr. Beswick reporting concerns to the General Manager and Assistant Front Desk Manager about Ms. Rabinovich’s performance
[46] Next, I turn to the parties’ evidence about Mr. Beswick and the General Manager reporting concerns about Ms. Rabinovich’s performance to Mr. Hillmer and Mr. Adamson.
[47] Ms. Rabinovich provided the Tribunal a copy of the piece of paper that has handwritten information on it, some of which someone had blacked out using a black marker. Ms. Rabinovich testified that the piece of paper contains notes she took during a training exercise and that it was in a work binder that she left behind when she left her employment with CIMS.
[48] Mr. Beswick testified that he found the same piece of paper near a front desk computer. He assumed that Ms. Rabinovich was the person who left it there because it was closest to the end of the front desk where she was working at the time. He could not recall what the specific credit card and personal information on it said, but he remembered seeing that someone had written what he understood to be private guest information on it.
[49] Mr. Beswick also testified that, sometime before he left on holidays, which was on January 16, 2020, he reported an issue to “senior management” about “credit card stuff.” He said he passed information on to CIMS’ General Manager, as well as to the Assistant Front Desk Manager, about issues regarding Ms. Rabinovich, which included Ms. Rabinovich writing things down on pieces of paper and taking a long time to check guests in over the phone. Mr. Beswick denied discussing Ms. Rabinovich’s job performance with any other managers.
4. Evidence about a January 13, 2020 meeting where Mr. Hillmer and Mr. Adamson decided that CIMS will terminate Ms. Rabinovich’s employment
[50] I now turn to the parties’ evidence about a January 13, 2020 meeting. Mr. Hillmer provided uncontradicted testimony that the General Manager, himself and Mr. Adamson hold weekly meetings to make management decisions. At times, Front Desk Managers and others attend those meetings to provide them with information about the hotel’s management-related matters, including issues of employee performance and hiring and firing decisions.
[51] According to Mr. Hillmer, on Monday, January 13, 2020, he met with the General Manager and Mr. Adamson. They also asked Mr. Beswick to join the meeting because they understood he had concerns about Ms. Rabinovich’s performance. According to Mr. Hillmer, the General Manager and Mr. Beswick advised him and Mr. Adamson that Ms. Rabinovich was not an appropriate fit for the front desk role, she was not meeting the expectations of the role, she was unable to check in and deal with guests in a timely manner, and she was not complying with CIMS’ policies and procedures around maintaining the confidentiality of guests’ personal information.
[52] Mr. Hillmer further testified that, during the same meeting and based on the information that he and Mr. Adamson had received from the General Manager and Mr. Beswick, he and Mr. Adamson decided that Ms. Rabinovich lacked the ability to fulfill her role as a Front Desk Agent, and that CIMS would terminate her employment based on her job performance. Mr. Hillmer denied that Ms. Rabinovich’s pregnancy was a factor in his part of the decision to terminate her employment. He provided uncontradicted testimony that it was not until sometime in February that he learned of Ms. Rabinovich’s pregnancy.
[53] Last, Mr. Hillmer testified that, at the January 13, 2020 meeting, “it was decided that” Mr. Beswick would deliver Ms. Rabinovich the news that CIMS is terminating her employment. Mr. Hillmer did not provide any details about who was present when this decision was made, who participated in this decision, or when or how it was communicated to Mr. Beswick.
[54] Mr. Adamson testified that, on January 13, 2020, he met with the General Manager and Mr. Hillmer. He could not provide any emails, calendar entries or other documentation of that meeting. However, he was confident that it occurred on January 13, 2020 because he was on holidays from January 14 to February 5, 2020, and it was the last meeting that he attended before going on those holidays.
[55] According to Mr. Adamson, during that meeting, Mr. Beswick came in and presented a piece of paper that contained handwritten information on it. Mr. Beswick told them he had found it near the front desk counter where Ms. Rabinovich worked. Mr. Adamson testified that the handwritten information included the name of a local company that is a regular Best Western client, phone numbers, and numbers that appear to him to be credit card information. Mr. Adamson also testified that writing a guest’s personal information down anywhere other than in the booking system is contrary to CIMS’ policy.
[56] Mr. Adamson testified that those present at the meeting discussed “the matter,” which I treat as him saying that they discussed the issue of Ms. Rabinovich writing guest’s personal information down on a piece of paper. Mr. Adamson testified that he understood Ms. Rabinovich had difficulties entering things into the computer system to complete reservations on a timely basis, and that she was not capable of doing so without writing personal guest information on pieces of paper and then entering it into the computer system after the fact.
[57] Last, Mr. Adamson said that Mr. Beswick and the General Manager recommended that CIMS lay Ms. Rabinovich off, and then Mr. Adamson and Mr. Hillmer decided to terminate Ms. Rabinovich’s employment.
[58] Mr. Beswick testified that management did not invite him into any of their meetings other than a January 31, 2020 meeting, where they asked him to deliver Ms. Rabinovich the news that CIMS is terminating her employment. However, during cross-examination he was unable to recall whether the General Manager, Mr. Hillmer and Mr. Adamson pulled him into a meeting on January 13, 2020. He was also unable to recall attending a meeting to discuss the topic of Ms. Rabinovich’s job performance on that date. CIMS asked him whether he could not remember it because it did not happen, or whether he could not remember it because of the passage of time (it was four years prior). He responded that he could not remember it because it was four years prior, and then he testified about personal matters that were going on for him at the time, which CIMS does not dispute, and it is not necessary for me to repeat here in the interests of Mr. Beswick’s privacy. After providing information about the personal matters going on in his life at the time, Mr. Beswick described the time as a “bit of a blur”.
[59] During cross-examination, CIMS also asked Mr. Beswick what he could recall about reporting to management on Ms. Rabinovich’s performance before he left on holiday, which was from January 16 to 29, 2020. Mr. Beswick responded that he told either the General Manager or the Assistant Front Desk Manager about credit card information he had found written down on a piece of paper at the front desk during Ms. Rabinovich’s shift, and about complaints that other employees had made to him about Ms. Rabinovich.
[60] Last, during cross-examination, Mr. Beswick testified that if it was him making the decision, he would have continued to employ Ms. Rabinovich and provided her more training in the areas she struggled with.
[61] I now turn to the parties’ evidence about Mr. Beswick telling Ms. Rabinovich that CIMS has terminated her employment.
5. Evidence about Mr. Beswick telling Ms. Rabinovich, on January 31, 2020, that CIMS has terminated her employment
[62] On Friday, January 31, 2020, Mr. Beswick attended his first shift back at work following his holidays. That day, he told Ms. Rabinovich that CIMS has terminated her employment. Mr. Beswick testified that at some point (he could not recall the date), the General Manager, Mr. Hillmer and Mr. Adamson called him into a meeting and asked him if he was comfortable telling Ms. Rabinovich that CIMS is terminating her employment. They told him they had made the decision to do so and that their decision was performance based. Mr. Beswick could not recall any further details about what they said to him about the reasons for their decision.
[63] Mr. Beswick further testified that he called Ms. Rabinovich into his office and told her CIMS has terminated her employment. He provided her details on what he had assumed the decision to terminate her employment was based on.
[64] Mr. Hillmer testified that the timing of when CIMS advised Ms. Rabinovich of it terminating her employment was the responsibility of its General Manager and Mr. Beswick. He further testified that he found out in early February about the date on which Mr. Beswick told Ms. Rabinovich that CIMS is terminating her employment.
[65] I now turn to my findings about when Mr. Hillmer and Mr. Adamson decided that CIMS would terminate Ms. Rabinovich’s employment, and whether Ms. Rabinovich’s pregnancy was a factor in that decision.
6. My findings about Chemainus Inn Management Services Inc.’s decision to terminate Ms. Rabinovich’s employment
[66] I am satisfied that, on January 13, 2020, Mr. Hillmer and Mr. Adamson decided to terminate Ms. Rabinovich’s employment, and that her pregnancy was not a factor in their decision to do so. It is on this basis that I have dismissed the part of her complaint regarding CIMS’ termination of her employment.
[67] First, I am satisfied that, on January 13, 2020, Mr. Hillmer and Mr. Adamson had a meeting that involved them discussing Ms. Rabinovich’s performance. During that meeting, Mr. Beswick and the General Manager provided them information about Ms. Rabinovich writing down a guest’s personal information on a piece of paper that Mr. Beswick found near her workspace. I recognise that Mr. Beswick denied discussing Ms. Rabinovich’s job performance with Mr. Hillmer and Mr. Adamson, and that he said managers other than the General Manager did not invite him into any of their meetings other than the one where they asked him to deliver Ms. Rabinovich the news that CIMS is terminating her employment. I consider Mr. Beswick to have been a credible witness regarding this part of his testimony. However, I do not find this part of his testimony to be reliable because he also said that he could not definitively recall whether he attended a meeting on that date because it was four years earlier, and that during that period he was going through a very difficult time with personal matters making it a “big blur to him.”
[68] Second, I accept Mr. Hillmer’s evidence that the General Manager advised him and Mr. Adamson that Ms. Rabinovich was not an appropriate fit for the front desk role, she was not meeting the expectations of the role, she was unable to check in and deal with guests in a timely manner, and she was not complying with CIMS’ policies and procedures around maintaining the confidentiality of guests’ personal information. I also accept Mr. Adamson’s evidence that the General Manager recommended to him and Mr. Hillmer that CIMS lay Ms. Rabinovich off. Their evidence on these points is consistent, uncontradicted, and reconciles with the overall picture of what took place.
[69] I do not accept that Mr. Beswick and the General Manager jointly recommended to Mr. Hillmer and Mr. Adamson that CIMS terminate Ms. Rabinovich’s employment, or lay her off. Mr. Hillmer and Mr. Adamson’s evidence that the General Manager and Mr. Beswick acted together in that recommendation does not reconcile with Mr. Beswick’s evidence that he considered Ms. Rabinovich to be an overall good employee, with many great qualities, but who struggled with efficiency when undertaking some of her tasks and had a difficult time remembering/documenting guest’s information. It also does not reconcile with Mr. Beswick’s evidence that if it was his decision, he would have continued with Ms. Rabinovich’s employment at CIMS and continued to train her as a Front Desk Agent.
[70] Third, I am satisfied that, on January 13, 2020, Mr. Hillmer and Mr. Adamson decided that CIMS will terminate Ms. Rabinovich’s employment based on the General Manager’s recommendation that it do so. Mr. Adamson and Mr. Hillmer made decisions on whether to terminate the employment of a CIMS employee based on recommendations they received from either the General Manager or Department Managers. It is highly unlikely that they would have made the decision to terminate Ms. Rabinovich’s employment without a recommendation to do so.
[71] Last, I am satisfied that, on January 13, 2020, when Mr. Hillmer and Mr. Adamson decided that CIMS will terminate Ms. Rabinovich’s employment, neither of them was aware of her pregnancy. Ms. Rabinovich has provided no evidence about telling anyone at CIMS about her pregnancy before January 20, 2020, and her pregnancy was not visibly obvious at the time.
7. The 18-day delay between the decision to terminate Ms. Rabinovich’s employment and Mr. Beswick telling her that her employment is terminated
[72] Before I conclude this decision, I address Ms. Rabinovich’s argument that there is no explanation for why CIMS took 18 days to tell her that it had decided to terminate her employment.
[73] CIMS has provided evidence that explains the 18-day delay between the time that Mr. Hillmer and Mr. Adamson decided CIMS would terminate Ms. Rabinovich’s employment and the time that Mr. Beswick told her it has terminated her employment. First, on January 13, 2020, Mr. Hillmer and Mr. Adamson decided that Mr. Beswick would be the person to tell Ms. Rabinovich that CIMS is terminating her employment. There is no evidence that Mr. Beswick was present when they decided this.
[74] Second, Mr. Hillmer testified, and I accept, that after he and Mr. Adamson decided Mr. Beswick would tell Ms. Rabinovich about the termination, they left it to the General Manager and Mr. Beswick to determine when and how he would deliver that decision to her.
[75] Last, the payroll records, which Ms. Rabinovich does not contest, show that Ms. Rabinovich did not work on January 14, 15, 16, or 30, 2020, and Mr. Beswick was on holiday from January 16 to 29, 2020. January 31, 2020, was the first day after January 13, 2020 where both Mr. Beswick and Ms. Rabinovich were at work. Their respective days off work explain the 18-day delay.
V CONCLUSION
[76] I dismiss the complaint in its entirety.
Sonya Pighin
Tribunal Member