Fullerton v. Davey C's, 1983 CanLII 4715

Fullerton v. Davey C's

1983-08-03

Ontario Board of Inquiry

CHRR Doc. 83-079

Kim Fullerton Complainant

v.

Davey C's and Glen Relph and Zantav Limited Respondents

Date: August 3, 1983

Place: Toronto, Ontario

Before: Ontario Board of Inquiry, Frederick H. Zemans

Appearances by: Leith Hunter and Catherine Dyke Evans, Counsel for the Ontario Human Rights Commission David Cooper, Counsel for Davey C's, Glen Relph, and Zantav Limited

SEXUAL HARASSMENT — sexual advances by supervisor — LIABILITY — mitigation of effects of discrimination

Summary: The Board of Inquiry dismisses the complaint of Kim Fullerton alleging sexual harassment by Glen Relph, Assistant Manager of Davey C's Restaurant. The Board finds that Mr. Relph's behaviour did not amount to sexual harassment and that Ms. Fullerton's dismissal from her employment as a waitress was not a result of her refusing Mr. Relph's advances.

The Board finds that Ms. Fullerton was dismissed not by Mr. Relph or because of any comments or actions taken by him. Rather, Paul Linklater, the General Manager of Davey C's, made the decision to dismiss Ms. Fullerton because he did not think she had the demeanour and personality to serve the public at Davey C's.

1The complainant in this matter, Ms. Kim Fullerton, alleges that she was sexually harassed while she was employed by the respondent restaurant, Davey C's Tavern, which is owned by the respondent Zantav Limited. She also alleges that she was ultimately dismissed from her employment after six weeks because of her refusal to respond to the sexual advances of the respondent, Mr. Glen Relph, who was the assistant manager of Davey C's during Ms. Fullerton's employment in October and November, 1979.

2At the opening of the hearing the spelling of the surname of the respondent, Glen Relph, was corrected from "Ralph" to "Relph" and the corporate entity that owns Davey C's Tavern, "Zantav Limited" was added as a party respondent, upon the consent of all parties.

3This case raises a number of interesting factual issues with respect to sexual harassment pursuant to the provisions of the Ontario Human Rights Code as it was written prior to the 1982 amendments. The two major issues in this Inquiry deal with whether there was a breach of either subsection 4(1)(b) or sub-section 4(1)(g) of the Code. The first issue that I must determine is whether there has been any sexual harassment of the complainant that falls within the ambit of the extensive jurisprudence that has developed recently in Ontario with respect to sexual harassment. Although there may have been some physical interaction between two individuals both of whom were employed by the same corporate entity, there may or may not have been sexual harassment within the provisions of s. 4(1)(g). Secondly, even if I find that there was a form of behaviour which entitled the complainant to succeed pursuant to s. 4(1)(g), such behaviour may or may not have been a factor in the complainant's dismissal from employment, thereby allowing her to establish a claim within the provisions of s. 4(1)(g) of the Code.

4The facts of this case are distinguishable from those of the many reported sexual harassment cases in that it is not the owner or proprietor of the business against whom the allegation of sexual harassment is made. The proprietor of Davey C's is Mr. David Cooper, who is the primary shareholder of the corporate respondent Zantav Limited. All parties acknowledge that Mr. Cooper was neither involved in, nor even aware of, the alleged sexual harassment on the part of his employee, Mr. Glen Relph. Mr. Cooper's position throughout the three-day hearing was that Ms. Fullerton was dismissed as a waitress at Davey C's for cause by the manager, Mr. Paul Linklater, with his encouragement because it was their opinion that Ms. Fullerton was not an effective waitress. The majority of the evidence at the hearing focussed on the question of whether s. 4(1)(b) had been breached and specifically whether Mr. Relph played a role in Ms. Fullerton's dismissal. Regardless of my ruling with respect to s. 4(1)(g), it must be remembered that this Tribunal must consider the evidence brought before it with respect to both subsections of the Ontario Human Rights Code and that a negative decision with respect to one subsection does not in any way preclude a positive decision with respect to another subsection.

5Before reviewing the testimony of the ten witnesses heard during the hearing, I should point out that the Inquiry laboured under the handicap that the events that I was called upon to consider took place in 1979 – some three years before the hearing of evidence. This put all the witnesses at some disadvantage and created inevitable discrepancies in their testimony relating to minor details. I have in most instances tended to ignore insignificant contradictions while attempting to grapple with and understand the more fundamental differences in testimony.

The Evidence

6The complaint herein arose from the employment of Ms. Kim Fullerton as a waitress at a Toronto restaurant in 1979. Ms. Fullerton was twenty-four years of age at the time she commenced work at Davey C's on October 22nd, 1979. She had experience as a waitress in Alberta, the Northwest Territories and Ontario.

7Ms. Fullerton responded to an advertisement for a waitress placed by Davey C's in a Toronto newspaper, and attended an interview with Mr. Glen Relph, at 645 Bay Street, Toronto, the restaurant location. Approximately ten days after her interview she was offered the position by Mr. Relph in a telephone call. Mr. Relph indicated that Ms. Fullerton was not management's first choice but that they decided to hire her and give her an opportunity to prove herself during a day-time shift which they were having difficulty staffing.

8Davey C's was in 1979 a new restaurant that had been open approximately one year. It is owned by Zantav Limited, a private corporation owned by David Cooper. As well, Mr. Cooper, a restauranteur in Toronto for approximately twenty years, is the Vice-President of the Downtown Business Council and Vice-President of the Ontario Hotel and Motel Association.

9Mr. Cooper testified that he preferred to be in the background of the management of Davey C's and that despite his concern about making the operation financially viable during its first year of operation, he left the management to Mr. Glen Relph, the assistant manager, and Mr. Paul Linklater, the general manager. The general manager, Mr. Linklater, was responsible for the administration of Davey C's, including the hiring and firing of personnel. This chain of command and the responsibility for the termination of Ms. Fullerton will be discussed later.

10Davey C's is a two-storey restaurant with eating and drinking facilities on both floors. Both the upstairs and downstairs areas are medium-sized spaces. (Exhibits 7 and 8) The downstairs bar divides the eating area in two while the upstairs has the bar on one side of a medium-sized eating area. In addition to the two restaurant floors which are open to the public, there is a basement area with two offices and a small staff changing area.

11Ms. Fullerton testified that she was hired to work as a waitress on the main floor of Davey C's with her work schedule from eleven to three, Monday through Friday, and eleven to six on Saturday. The respondents deny that Ms. Fullerton was specifically hired to work on the main floor but rather take the position that the Davey C's hiring policy was that employees were hired to work where needed and that shifts, positions and locations often changed. The general manager was responsible for drawing up the list of staff shifts, which were posted weekly by the assistant manager. There is no doubt that when Ms. Fullerton started work on October 22nd, 1979, she was assigned to work on the main floor. The other waitress on the main floor at that time was a Ms. Debbie Miller who was expected to train Ms. Fullerton and to introduce her to the specific procedures of the Davey C's operation.

12Ms. Fullerton testified that everything went well during her first day of work except that the general manager, Mr. Linklater, spoke to both her and Ms. Miller about their attire. (Evidence Vol. I, p. 25) Ms. Fullerton had been informed that dress for Davey C's employees was casual but no jeans were allowed. Mr. Linklater indicated to Ms. Fullerton and Ms. Miller that the corduroy pants they were wearing were inappropriate. Although Ms. Fullerton ceased wearing corduroy pants there is evidence to the effect that Ms. Miller did sporadically wear corduroys. Despite Ms. Fullerton's removal of corduroys from her employment wardrobe, her dress remained an issue in the minds of Mr. Cooper and the managers of Davey C's. (Evidence Vol. II, p. 6)

13Kim Fullerton's initial reaction to working at Davey C's was quite positive. She testified that the only criticism that she received during her first two weeks was with respect to the type of pants that she wore on the first day. Ms. Fullerton testified that at the end of this period she was invited out on a date by Glen Relph and that they spent the evening together on Friday, November 2nd, 1979. Ms. Fullerton testified that Mr. Relph picked her up at her home in a taxi and that they had dinner and listened to jazz at George's Spaghetti House in central Toronto, and then went dancing. (Evidence Vol. I, pp. 29–30) Mr. Relph did not deny that he and Ms. Fullerton had dinner together but took the position that it was not a formal date but rather an evening when two employees had rather spontaneously decided to spend an evening together. He denied that he had picked up Ms. Fullerton at her home but rather recalled their leaving Davey C's together, and he did not remember going dancing afterwards. (Evidence Vol. II, pp. 52–53)

14Mr. A. Proracki, a reply witness, testified that he shared a house with Kim Fullerton and a number of other persons in November, 1979 at 250 Montrose. He testified that he recalled a man by the name of Glen picking up Ms. Fullerton one evening in the late fall and that he believed that this man was Glen Relph. Mr. Relph was not present on the day that Mr. Proracki testified so he was not able to identify Mr. Relph. In my opinion little or nothing turns on whether Mr. Relph picked up Ms. Fullerton at her home or not, or whether they concluded their evening at George's or continued on to a dance club. Ms. Fullerton's claim is that the evening of November 2nd, 1979 was the beginning of a series of events which included Mr. Relph sexually harassing her in the course of her employment at Davey C's and culminated in his dismissing her from her position at Davey C's because she was uncooperative and unresponsive. Ms. Fullerton has therefore tended to emphasize the extent of Mr. Relph's interest and pursuit of her. Mr. Relph, as well as the other respondents, attempted to de-emphasize the personal interests that Mr. Relph had in Ms. Fullerton and to downplay both the events of November 2nd, 1979 and those subsequent encounters between them. The discrepancy as to what took place after dinner arises from the fact that Ms. Fullerton testified that she and Mr. Relph went dancing after dinner, but she could not name the club where she believed that they went. (Evidence Vol. I, p. 30) Mr. Relph in his testimony indicated that he did not recall going dancing on the evening of November 2nd. (Evidence Vol. II, p. 53) I reiterate that I place little significance on these discrepancies between the evidence of the principal witnesses. In light of the length of time since the events, I would tend to believe Ms. Fullerton that they may have gone dancing for a period of time prior to Mr. Relph's return to Davey C's to assist in closing up the bars.

15There is no doubt that they did spend an evening together and that nothing unusual took place during the course of that evening. There is no doubt that Ms. Fullerton probably perceived the evening as something more than a casual dinner with a new acquaintance from work. This perception was reinforced in her mind by virtue of the fact that Mr. Relph picked her up at home and paid the bill. Ms. Fullerton testified that there was no sexual contact and no kissing during the evening. In my mind this is a significant admission on the part of the complainant. The fact that the only occasion that Ms. Fullerton and Mr. Relph actually spent any time together was an innocent occasion unencumbered by any physical contact in my opinion weighs strongly against Ms. Fullerton's allegations. If Mr. Relph was attempting to exploit his position as a member of the management team at Davey C's, it would have been a likely time in my opinion for him to initiate some physical contact with Ms. Fullerton.

16Ms. Fullerton testified that it is her recollection that after the evening of November 2nd, 1979, Mr. Relph attempted to establish a personal relationship with her. She testified that he called her at her home three or four times, although it is unclear whether she even spoke to him on any of these occasions. She testified that she spoke to him on half of his telephone calls and that they were personal in nature and part of Glen Relph's attempts to develop an on-going relationship. (Evidence Vol. I, pp. 100, 111 and 119) She also testified that there were attempts at Davey C's to ask her out and instances of what she perceived to be attempted sexual contact. She testified that:

A. Mr. Relph would attempt to and often managed to put his arms around me and attempt to kiss me.

Q. Where would he put his arms?

A. Either ... he would come up from behind me or directly in front of me and put them around the shoulder area. Or Mr. Relph would put his arm around my shoulders from behind me or around my waist from behind me or he would attempt to kiss me.

Q. All right. Can you tell me whether he said anything to you at these times?

A. I don't recall things that were said at that time.

Q. All right. Can you tell me where this occurred?

A. It occurred in the restaurant.

Q. All right. Did it occur so that other people could see or was it more private?

A. It was done in private. Often it would happen when I would come in to work in the morning and often, at that time, nobody else would be around, or they would be upstairs or downstairs changing or having a coffee.

Q. Okay.

A. Most often I was alone.

Q. Can you tell me how you responded?

A. I responded by rebuffing Mr. Relph.

(Evidence Vol. I, pp. 32–33)

17Ms. Fullerton believed that Mr. Relph's various contacts with her were attempts to continue the personal relationship of the evening that they had spent together. She perceived Mr. Relph's attention as going beyond that of a supervisor and rather that of a man attempting to establish a liaison. She acknowledged that at no time did Mr. Relph touch any of her more personal parts. (Evidence Vol. I, p. 102) Mr. Relph strongly denies this allegation and states that he had no intention or interest in developing a personal relationship with Ms. Fullerton and that until he heard her testimony at the Inquiry, he had no perception or understanding of what Ms. Fullerton was upset or concerned about. Mr. Relph stated that it was, and is his nature to greet people in an overtly physical fashion. He acknowledged that he may have put his arm around Ms. Fullerton but he testified that on no occasion did he kiss or attempt to bear hug her. He was surprised that she refused to come to the office on the several occasions that he asked her to, because he wished to discuss her demeanour and encourage her to be more personable to the customers:

Q. ... Was it your style to put your arms around Ms. Fullerton?

A. I would say it was my style, on occasion.

Q. But did you?

A. I quite possibly did, I may have put my arm, not my arms, but I may have come behind her and put my arm around, and said "how are you doing?" and in other words, is everything okay, sort of deal and pertaining to the business not pertaining to my personal feelings for me.

Q. Did you try to kiss her?

A. I did not.

Q. Did you bear hug her?

A. I did not.

Q. Never?

A. Never.

Q. Did you ask Ms. Fullerton to come and see you at the end of shifts?

A. There were occasions when I asked Ms. Fullerton to come to the office, she did not, on these occasions I had several items that I was going to point out to her, and I never got to because she did not come to the office.

Q. What kind of items did you want to point out?

A. Although she was a competent waitress, I thought she could have been a little quicker, and a little more personable, in my opinion.

(Evidence Vol. II, pp. 53–54)

18In all probability, Mr. Relph's contact with Ms. Fullerton at Davey C's during the early weeks of November 1979 fall somewhere between the extremes described. I do not think that Mr. Relph's actions can be interpreted as being overt sexual contact. The alleged touching and kissing took place in restaurant areas where other employees had full access and were or could have been present. I accept Mr. Relph's evidence that he was treating Ms. Fullerton in a similar fashion to the other employees of Davey C's. I am however sympathetic with Ms. Fullerton's position that she was both embarrassed and intimidated by this contact. She was a newcomer at Davey C's and found herself befriended by one of the managers who took her out for an evening and subsequently seemed to be touching her in a way which made her anxious. It is my opinion that Ms. Fullerton may have overreacted. In light of her anxiety stemming from previous experiences in the restaurant industry, and her belief that Glen Relph was the management person to whom she was responsible, her concern and tension are understandable. It is probable that there may have been several telephone calls which encouraged Ms. Fullerton's concern.

19Shortly after her evening with Mr. Relph, Ms. Fullerton was moved to serving in the upstairs area of Davey C's. She was pleased with this move and perceived it as a promotion which allowed her to work in a superior atmosphere and to earn larger tips because of the more expensive menu. The complainant believed that the move upstairs was connected to Mr. Relph's personal interest in her. Ms. Hunter, counsel for the Human Rights Commission and the complainant, asked me to make a finding of fact that Ms. Fullerton's move to serving upstairs on or about November 5th, 1979 was consistent with Mr. Relph's attempt to use his position to intimidate and coerce Ms. Fullerton.

20Mr. Relph testified that the decision to move Ms. Fullerton was made by Mr. Paul Linklater, the general manager of Davey C's, on the basis of where and when staff were needed. Glen Relph denied that Ms. Fullerton's move was sexually related. In my opinion, Mr. Relph was truthful in his testimony on this issue. During cross-examination by Ms. Hunter, he stated that he might have discussed with Mr. Linklater moving Ms. Fullerton upstairs:

Q. (Cross-examination Ms. Hunter) All right. Did Ms. Fullerton ask you to move her upstairs?

A. I don't remember.

Q. So, you won't be able to tell me whether you moved her upstairs based on the request that she made?

A. I cannot tell you that, I don't remember.

Q. Is it possible that you did?

A. I didn't make the final decision, so I don't think it is possible.

Q. Okay, is it possible though if you or Mr. Linklater were looking for somebody to move upstairs if Kim Fullerton had said to you, "I would like to move upstairs", that you would have considered her as a candidate, for doing so?

A. I might have discussed it with Paul, yes.

(Evidence Vol. II, pp. 98–99)

21I again find that I must draw conclusions about events that are open to various interpretations. I can understand that in retrospect Ms. Fullerton concluded that her move upstairs at Davey C's, shortly after having had dinner with Mr. Relph, was related to a well-developed scheme that he hoped would lead to a sexual liaison with her. However, I do not believe that the evidence as a whole and the testimony of all the witnesses, including the testimony of the investigator for the Ontario Human Rights Commission, Mr. Michael Simons, allows me to come to such a conclusion. There is no doubt that after November 2nd, Ms. Fullerton and Mr. Relph were on a friendlier basis. She had been working at the restaurant for just over two weeks and they had had the opportunity of getting to know each other over dinner and drinks at George's. But in my opinion the evidence indicates little more than a friendship between two people of the opposite sex, who were working in the same establishment. I do not think that Mr. Relph can be criticized for perhaps recommending Ms. Fullerton for consideration for shifts on the second floor at Davey C's. If, as I find, the decision of Mr. Linklater was made because there was a need for a waitress on the second floor, then it was a legitimate business decision. What seemed to have created the problem here was Mr. Relph's inexperience in restaurant management which had allowed him to go out for an evening alone with Ms. Fullerton, and his mistaken belief that after this event that his periodic comments and touching of Ms. Fullerton could subsequently continue to be considered as friendliness that would be construed as "strictly in the course of business." Mr. Relph subsequently mixed business and pleasure, and this confused and concerned Ms. Fullerton.

22Ms. Fullerton worked in the upstairs dining room until November 21st, 1979 – approximately two and one-half weeks. No criticism of her attire was made during this period and on one occasion, Mr. Cooper complimented her for wearing a dress and high heels. There is also conflicting evidence about telephone calls during the period of time after she moved upstairs and the crucial evening of November 14th, 1979. Mr. Relph denies that he telephoned her for personal reasons and specifically states that he called her on about three occasions with respect to shifts. Ms. Fullerton's evidence taken at its strongest is that she recalls two conversations with Mr. Relph but cannot recall when these calls were and whether they were before or after the dinner date on November 2nd.

23Ms. Fullerton testified that during the evening of November 14th, 1979 Mr. Relph approached her during the evening when she was the only waitress in the upstairs dining room and said: "You are not very busy. Do you want to go down to my office for a couple of hours." (Evidence Vol. I, p. 36) Ms. Fullerton testified that she was taken aback, shocked and embarrassed and said "No, I certainly don't want to go down to your office with you." (Evidence Vol. I, p. 40) She believed that Mr. Relph wanted her to go down to his office to have sexual intercourse.

24Mr. Relph testified that he might have made this remark to Ms. Fullerton. When asked why he made the remark Mr. Relph replied:

A. In fun. The ... I'm not even saying I did, I'm saying quite possibly I could have made a remark like that. It is within my character and my dealing with the staff was very light authoritative, I felt, but I possibly could have made that remark, yes.

(Evidence Vol. II, pp. 58–59)

Mr. Relph indicated that such a liaison during working hours was impossible for both himself and Ms. Fullerton and that he could not believe that Ms. Fullerton would think that he was possibly serious in light of the fact that she was the only waitress working upstairs and there was no one else to cover for her and that Mr. Relph was responsible for the administration of the entire restaurant that evening. As well, considerable evidence was given about the small size of the basement office and the fact that it contained only two desks in a cellar-like environment, although this fact seems less important than the unlikelihood of the assistant manager removing himself and the only waitress on duty from the upstairs restaurant during working hours.

25I have no doubt that Ms. Fullerton took Mr. Relph's comments if not seriously then at least as a potential invitation which may very well have been the way that Mr. Relph intended the remark. He may very well have been testing the waters with Ms. Fullerton to see if something more personal was possible outside the work context. At the very least, Mr. Relph's remarks lacked judgment.

26Ms. Fullerton testified that after the verbal interchange of November 14th, 1979, she believed that Mr. Relph's attitude toward her changed significantly. "Mr. Relph's attitude towards me changed quite dramatically: We were no longer on any kind of friendly basis, it seemed to me. He was withdrawn from me. He was very cold to me. I believe that he only spoke to me if it was only over a job related concern." (Evidence Vol. I, p. 42)

27On November 21st, Ms. Fullerton's hours and location of work were again changed. She was once again moved downstairs and her hours of work were changed and she was required to work more split shifts and evenings to make up her time. Ms. Fullerton was unhappy about her move downstairs as she saw it as a demotion and a loss of income. Considerable time both in evidence and argument was spent by both the representatives of the complainant and the respondents on the change in Ms. Fullerton's work location and hours of work after November 21st. Mr. Relph, in cross-examination, testified that he played no part in formulating the schedules save for posting them in the restaurant. I do not totally accept this position with respect to the change of Ms. Fullerton's work situation on November 21st any more than I can with respect to her assignment upstairs on November 5th. It would seem that there is considerable evidence to indicate that both Mr. Linklater and Mr. Cooper had grown concerned about whether Ms. Fullerton would "make it" as a full-time employee at Davey C's and that by the third week of November, Mr. Linklater had already decided that he did not want to keep Ms. Fullerton on the permanent staff of Davey C's. The extent to which he was influenced in this decision by Mr. Relph is impossible to ascertain. I would speculate that possible comments by Mr. Relph to the effect that Ms. Fullerton's demeanour was not as pleasant as he would like may have confirmed Mr. Linklater's impression, an impression reaffirmed by the comments of David Cooper and Faye Hartford, the bookkeeper, about Ms. Fullerton's performance and attitude. (Evidence Vol. II, p. 19; Vol. I, pp. 213–214)

28I accept Mr. Linklater's testimony that he was totally unaware of the fact that Mr. Relph had had a personal contact with Kim FulIerton. (Evidence Vol. I, p. 252) Although Mr. Relph may have contributed in some way to Mr. Linklater's decision I do not find that his opinion was a significant factor or that his comments, if any, were influenced by Ms. Fullerton's rebuff of him on the evening of November 14th, 1979. At the most, I see Mr. Relph's comment of November 14th as a testing of the water. He may have been expressing some interest in Ms. Fullerton, and, I would add, improperly so. But I can find no evidence to indicate that Ms. Fullerton's change of job location a week later was related to the November 14th conversation or the previous contacts between Mr. Relph and Ms. Fullerton.

29It is appropriate at this time to turn to the circumstances surrounding the dismissal of Ms. Fullerton from her employment with Davey C's. The dismissal occurred on November 30th, 1979 when Ms. Fullerton was informed of her termination by Mr. Relph when she arrived for work in the evening. When Ms. Fullerton asked Mr. Relph for an explanation, he told her that Mr. Linklater had told him to fire her. Ms. Fullerton recalled this conversation much the same as Mr. Relph but put the comment as "Mr. Linklater didn't like you." Mr. Relph said that he didn't go into greater detail with Ms. Fullerton because he was uncomfortable in dismissing employees and specifically because Ms. Fullerton and he were talking in the restaurant and he didn't want to prolong the discussion in the public area. Ms. Fullerton was disturbed by the lack of explanation as at no time during her six-week employment at Davey C's had any indication been given to her that Mr. Linklater, or anyone else for that matter, was dissatisfied with her work. Approximately one week after her dismissal Ms. Fullerton went to Davey C's to receive her final pay cheque. At that time she spoke to Mr. Linklater.

30By this time in early December, Ms. Fullerton was considering laying a complaint with the Ontario Human Rights Commission and this information had evidently come to the attention of Mr. Linklater. While Ms. Fullerton was unwilling to talk about the issue with Mr. Linklater, Mr. Linklater informed her that he felt that she should have spoken to him about the problems that she believed she was encountering at Davey C's. He then informed her that the reason that she was dismissed was, according to the testimony of Ms. Fullerton, because "Mr. Cooper did not think that I fitted in." (Evidence Vol. I, p. 61) In his testimony Mr. Linklater recalled the meeting with Ms. Fullerton and produced a "Memo on Termination, Re: Kim Fullerton" which had been prepared on Monday, December 10th. The document was filed as Exhibit 5 in these proceedings and reads:

Discussed with Kim today why she was terminated. Explained to her that we had not found her dress habits to be in keeping with the standards we maintain at Davey C's, and also did not feel she was suitable for continuing employment. I expressed to her my concern over alleged sexual harassment by any of Davey C's management, but she declined to comment on that subject.

"Paul Linklater"

General Manager

Davey C's

[Complained about a raise to Paul on termination.]

Mr. Linklater testified that during his brief meeting with MS. Fullerton he discussed the fact that he didn't think that she fit in at Davey C's, and "she agreed with me, she said that she didn't think she fit in with anybody there." (Evidence Vol. I, p. 244)

31Mr. Linklater testified that he was responsible for hiring and firing at Davey C's, and that he asked Mr. Relph to fire Ms. Fullerton on November 30th because he would not be in the restaurant when Ms. Fullerton arrived. Mr. Linklater stated that he didn't recall ever criticizing Ms. Fullerton directly about her work performance but felt that she wasn't particularly friendly and didn't, in his opinion, have a future at Davey C's. (Evidence Vol. I, p. 250) He reaffirmed that the decision to fire Kim Fullerton was his and that he had also been told by David Cooper that he wanted her out of the restaurant. He considered that Ms. Fullerton was still on a probationary period and he didn't recall Mr. Relph having any part in this termination decision. In cross-examination, Ms. Hunter asked Paul Linklater whether Glen Relph played a part in the decision to fire Kim Fullerton:

Q. Did Glen Relph play a part in the decision to have Kim Fullerton fired?

A. No.

Q. Why not? Isn't that something that both of you would have discussed?

A. The decision to fire Kim was mine. I had also been told by David Cooper, that he wanted her replaced.

Q. All right. But had you spoke to Glen Relph with regard to his impressions of Kim?

A. His impressions, no. Not that I recall.

Q. No part of your decision was based on what one manager, who had hired this person, felt about the person that you were going to fire?

A. I thought she was only a fair waitress, and I recall, the only reason why she was there for the length of time she was there was that we had problems filling shifts.

Q. Glen Relph was not consulted, to any extent, about the fact that Kim Fullerton was going to be fired?

A. Glen was probably told, but it wasn't Glen's decision to make. The decision had been made.

(Evidence Vol. I, pp. 253–254)

32Mr. David Cooper's testimony with respect to the employment of Kim Fullerton is also significant. He testified that in 1979 the operation of Davey C's was the most important business enterprise that he was involved in, and that he was on the premises five to six days per week as losses in the operation of the restaurant were substantial. He testified that he went into the restaurant during the busy periods at lunch hour for several hours and in the evening for several hours. He was not involved in the direct management but "would walk around and complain." It was the responsibility of Mr. Linklater to attempt to remedy the problems about which Mr. Cooper complained. David Cooper testified that he was prepared to stay relatively in the background and play the role of the critic and pick out the areas of the operation that needed fine tuning.

33Mr. Cooper testified that he observed Ms. Fullerton on at least a half dozen occasions during the period of time that she was employed at Davey C's. Neither of the managers spoke to him about Kim Fullerton but he spoke to Paul Linklater about her dress and her general demeanour. He understood that Mr. Linklater had told Ms. Fullerton that her job performance was not up to the standard expected by Mr. Cooper for waitresses at Davey C's. (Evidence Vol. II, p. 18) Mr. Cooper had observed both her dress and her type of service on two different occasions that left him unhappy with Ms. Fullerton:

Well, I don't recall the exact conversation, but by the time I complained about her clothes, and it was obvious she wore these beatnik clothes, bohemian type clothes for a week or two, and every time I took note of her, I would be a little upset and then complained about her service, so I think by the time I complained about her service, the decision may have been made to let her go. (Evidence Vol. II, p. 21)

Her clothes were ... her clothes were rumpled and ... the ... just was not the right thing for that restaurant. And I mentioned to, I think Paul was the manager, I mentioned it to him at the time. The next time I observed her I watched her service, and although she seemed a reasonably capable waitress, I found that she did not have the public relations things, where she did not smile, she was a very sullen waitress and she served me one time and I don't take too much account of when they serve me, when waitresses serve me because sometimes they are a little frightened when they serve the boss, but I watched from the background many times and I thought she just did not have any life in the job, she was not excited about the job, there was not the – "can I get you something else", or "good morning", or "good afternoon, it is a nice day", and "can I get you a drink" and "our special today" in a nice, happy tone ... is what she lacked. I complained to Paul, to Mr. Linklater about that and he took it into account and then on the last occasion, and I am very clear on all cases, but this particular occasion I walked upstairs where she was working and stood there for a while, and the bartender behind the bar complained to me, that Miss Fullerton had a very strong body odour, to put it very blunt, and I was very shocked and upset about this so I walked by her and confirmed the, the odour and then I walked over to Paul Linklater and I said to Paul, "Mr. Linklater" I said, "that girl has an odour problem, and I would suggest that you get rid of her or dismiss her". I don't know the words exactly but I said get rid of her as soon as you can in a very positive and firm manner. (Evidence Vol. II, pp. 6–7)

34To summarize Mr. Cooper's evidence, he was concerned about Ms. Fullerton's rather informal or casual dress and her sullen demeanour, and communicated this to his general manager some time during November. His final complaint was with respect to the one occasion when it was drawn to his attention that Ms. Fullerton had unpleasant body odour. Mr. Cooper's testimony was that on this latter occasion he urged Mr. Linklater to replace Ms. Fullerton.

35The evidence of the Davey C's management was confirmed by a number of other current and former employees. The testimony of Ms. Debbie Miller who had worked at Davey C's until 1980 is particularly significant. She testified that she had been asked out by Glen Relph on one occasion and that she refused his invitation. She recalled working with Kim Fullerton and testified that she found her dress to be neither casual nor conservative, but rather that it was untidy. She also indicated that she thought Ms. Fullerton's hair looked untidy and recalled that she had body odour. (Evidence Vol. I, p. 223) Mr. Michael D. Walls also testified for the respondents. At the time of the hearing he was still employed by Davey C's in the position of head bartender. He testified that he recalled working with Kim Fullerton. With respect to Ms. Fullerton's attire he testified:

A. Well, I used to work for the Crock and Block, where personal hygiene was taken very seriously, and I was surprised when I started at Davey C's, because it was unstructured in the dress. But I would say that she was the worst dressed waitress I had ever seen.

(Evidence Vol. I, p. 230)

Mr. Walls also discussed Ms. Fullerton's personal hygiene and testified that it was in his opinion "disgusting" and he found it hard to believe that she took a bath every two days.

36Other than the evidence of Faye Hartford, which I shall discuss in a moment, there was no evidence that Glen Relph had acted in a manner which other employees at Davey C's considered to be sexually aggressive. In fact, there was contrary evidence in the notes of Mr. Michael Simon, the investigator for the Ontario Human Rights Commission. Mr. Simon was called to prove his notes which were used by Ms. Hunter in her cross-examination of Glen Relph. While giving testimony, all of his notes were placed as evidence before the tribunal as Exhibits 6 and 9. Mr. Simon's notes indicate that in 1980, he interviewed four waitresses who either were working, or had worked, at Davey C's tavern around the same time as Kim Fullerton. The comments in Mr. Simon's notes indicate that although some of the waitresses found Paul Linklater and Mike Walls "obnoxious" they all indicated that there had been no sexual advances made by Glen Relph: "he never pulled anything with me or anybody else," "he doesn't strike me as the type," "he was liked – great rapport," "no sex harassment that I've known," "never seen or heard anything like that happen."

37Finally, I turn to the evidence of Ms. Faye Hartford. Ms. Hartford is the bookkeeper for Davey C's and works as a receptionist in the upstairs dining room during the lunch hour. She was subpoenaed by the Human Rights Commission. She was clearly under some pressure in testifying as she is Mr. Cooper's personal secretary and confidant with respect to the staff at Davey C's. Ms. Fullerton testified that she had been informed by her boyfriend, Mr. Ted Myerscough, who was employed by Davey C's at the time, that Ms. Hartford had given him information which indicated that she should pursue her claim against Mr. Relph. In her testimony, Ms. Hartford attempted to down-play any concern that she may have had about Mr. Relph's activities and stated that she had spoken to Ms. Fullerton on the telephone and tried to calm her down and to help her to see Mr. Relph's actions in context. She indicated that she had informed Ms. Fullerton that Mr. Relph tended "to horse around" and that on one occasion that he put his hand down her blouse:

A. And in the course of that conversation, to get the point across, I said, "Well, Glen is always horsing around and he put his hand down the front of my blouse", which I even exaggerated at that because it wasn't really a sexual thing. I was complaining about neck pains or arthritis, and he said, "Do you want me to rub your neck?", and I said, "Great, go ahead", and he was massaging my neck and then he let on his hands were going down the front and I grabbed his hands and said, "Got you", something silly like that.

(Evidence Vol. I, pp. 210–211)

38I place little weight on Faye Hartford's evidence. She was, in my opinion, uncomfortable testifying for the Commission in the presence of her employer and I do not feel that she was forthright in her testimony. She was not cross-examined by Ms. Hunter on the comments that she made to Mr. Michael Simon in his interview with her in July, 1982. Ms. Hartford did indicate, according to Mr. Simon's notes, that Mr. Relph liked to joke with women and did on occasion attempt to kiss and touch them. In summary, Ms. Hartford's evidence is of little or no assistance to me.

Sexual Harassment

39I have dwelt at considerable length with the facts in this case as I must ultimately determine whether the incidents that Ms. Fullerton complained about with respect to Glen Relph's treatment of her amount to sexual harassment and whether his personal attention to her played any part whatsoever in Ms. Fullerton's ultimate dismissal. It is my opinion that even if the actions of Mr. Relph did not amount to sexual harassment, if it can be shown that Ms. Fullerton's dismissal had anything to do with her sex, or Mr. Relph's alleged interest in her, then the Code may have been contravened.

40I would like to briefly look at the Ontario law with respect to sexual harassment. I have recently discussed sexual harassment pursuant to the Human Rights Code prior to 1980 in my decision of Cynthia Graesser's complaint against John Porto [see 1983 CanLII 4717 (ON HRT), 4 C.H.R.R. D/1569], so that I shall refrain from a lengthy exposition. The relevant sections of the 1980 Ontario Human Rights Code are:

4(1) No person shall,

(b) dismiss or refuse to employ or to continue to employ any person;

(g) discriminate against any employee with regard to any term or condition of employment.

41The Human Rights Code as it read at the time that the complaint herein was filed did not explicitly set out sexual harassment as a ground for a complaint of discrimination. However, since 1980 a number of Boards of Inquiry have held that sexual harassment contravenes the Code in that the harassed individual is subject to conditions of employment that employees of the opposite sex are not. Mr. Owen B. Shime, Q.C., chaired that first Board of Inquiry in Ontario to consider a complaint of sexual harassment. In Cherie Bell and Anana Korczak v. Ernest Ladas and the Flaming Steer Steak House (1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155), two waitresses complained of sexual harassment by their employer. The Board, after considering Section 4 of the Code held that sexual harassment was a form of discrimination on the basis of sex. Mr. Shime stated:

Subject to the exception provided in s. 4(6), discrimination based on sex is prohibited by the Code. Thus, the paying of a female person less than a male person for the same job is prohibited, or dismissing an employee on the basis of sex is also prohibited. But what about sexual harassment? Clearly a person who is disadvantaged because of her sex is being discriminated against in her employment when an employer's conduct denies her financial rewards because of her sex, or exacts some form of sexual compliance to improve or maintain her existing benefits. The evil to be remedied is the utilization of economic power or authority so as to restrict a woman's guaranteed and equal access to the work place, and all of its benefits, free from extraneous pressures having to do with the mere fact that she is a woman. Where a woman's equal access is denied or when terms and conditions differ when compared to male employees, the woman is being discriminated against. (1 C.H.R.R. D/156)

42In their book, The Secret Oppression (1978, Toronto: Macmillan of Canada), Leah Cohen and Constance Backhouse discuss the range of behaviour that they considered to be forms of sexual harassment. They wrote:

Sexual harassment can manifest itself both physically and psychologically. In its milder forms it can involve verbal innuendo and inappropriate affectionate gestures. It can, however, escalate to extreme behaviour amounting to attempted rape and rape. Physically, the recipient may be the victim of pinching, grabbing, hugging, patting, leering, brushing against, and touching. Psychological harassment can involve a relentless proposal of physical intimacy, beginning with subtle hints which may lead to overt requests for dates and sexual favours.

All women are targets for this type of male behaviour in normal social settings, and to some extent on the streets. When this kind of activity is transferred to the work setting women's vulnerability increases dramatically. It can poison a woman's work environment to the extent that her livelihood is in danger. There is the implicit message from the harasser that non-compliance will lead to reprisals.

These reprisals can include threatened demotions, transfers, poor work assignments, unsatisfactory job evaluations, sabotaging of the woman's work, sarcasm, denial of raises, benefits, and promotions, and in the final analysis, dismissal and a poor job reference. In no uncertain terms, it is made clear to the woman that she must give in to the harasser's sexual demands or suffer the employment-related consequences. (Cohen and Backhouse at 39–40)

A similar definition was adopted by the Board in Flaming Steer Steak House:

The forms of prohibited conduct, that, in my view, are discriminatory run the gamut from overt gender-based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender-based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment. There is no reason why the law, which reaches into the work place so as to protect the work environment from physical or chemical pollution or extremes, ought not to protect employees as well from negative, psychological and mental effects where adverse and gender directed conduct emanating from a management hierarchy may reasonably be construed to be a condition of employment. (1 C.H.R.R. D/156)

Mr. Shime went on to state that one must be cautious not to inhibit freedom of speech or normal conduct and discussion between management and employees. The test the Board used was whether the "language or words may be reasonably construed to form a condition of employment."

It is not abnormal, nor should it be prohibited activity for a supervisor to become socially involved with an employee. An invitation to dinner is not an invitation to a complaint, The danger or the evil that is to be avoided is coerced or compelled social contact where the employee's refusal to participate may result in loss of employment. (1 C.H.R.R. D/156)

43In the Flaming Steer case Mr. Shime dismissed the complaints of both Ms. Bell and Ms. Korczak for different reasons, holding that the Human Rights Commission had failed to meet the onus of proof with respect to either complainant.

44It is my opinion that the Canadian and American cases have indicated that before sexual harassment can be legally construed as an infringement on an individual's human rights it must have been made a condition of employment. In the recent American decision of Maxine Munford v. James T. Barnes & Co. et al. 441 F. Supp. 459 (1977) (U.S.D.C. Mich.), the employee complained to a supervisor of harassment by her immediate superior and that supervisor failed to act. It was held that in that instance the complainant had an action against her employer. The employer was found to have given tacit support to the harassment and it was therefore found to be discrimination. The distinction was made between an advance of a personal nature and sexual harassment which has become a condition of employment.

45This position is also taken by Professor E.J. Ratushny in Grace Aragona v. Elegant Lamp Co. Ltd. and Fillipitto (1982, Ontario Board of Inquiry). In that decision Professor Ratushny discusses when acts amount to sexual harassment within the provisions of the Ontario Human Rights Code. At page 4 he states:

The line of sexual harassment is crossed only where the conduct may be reasonably construed to create as a condition of employment a work environment which demands an unwarranted intrusion upon the employee's sexual dignity as a man or woman.

46Ultimately, Ms. Fullerton's complaint against Glen Relph and Davey C's demands a decision as to whether or not there was an unwarranted intrusion upon her sexual dignity. After much consideration of the evidence and reading of the lengthy transcripts, it is my opinion that there was not a case of sexual harassment made out in this instance against the respondent Glen Relph or his employer, Davey C's. Ms. Fullerton is clearly a highly intelligent and sensitive woman who was neither happy with the attention that she received from Glen Relph nor, for that matter, happy working at Davey C's. I have considered the fact that she may have been unhappy at Davey C's because she felt that Glen Relph was harassing her, but I am unable to find that there is sufficient evidence to indicate that Mr. Relph treated Ms. Fullerton in a fashion that went beyond that of a reasonable social involvement. It was undoubtedly unwise for Mr. Relph to have taken Ms. Fullerton out for dinner or to have perhaps continued to have attempted to have a social relationship with her but I am unable to find that Mr. Relph's involvement with Ms. Fullerton, on the one occasion that they did spend the evening together, combined with several telephone calls, and his limited physical contact with Ms. Fullerton, amounts to sexual harassment in the workplace. In my opinion, unless the incident of November 14th is seen as a culminating incident in a consistent pattern of behaviour, then there is no basis to the complaint. I find that Mr. Relph's comment was probably made in jest and that he had no intention of jeopardizing his own career at Davey C's for a brief sexual interlude with Ms. Fullerton. If Mr. Relph had tried to force himself upon Ms. Fullerton after work or even suggested that they spend time together after work, there might have been some basis for concern. Although his suggestion may have been crude and rude, it would seem to me to have been a remark which was properly dismissed by Ms. Fullerton. I am unprepared to find that because Ms. Fullerton is an extremely sensitive and perhaps scarred person, as a result of her previous experiences in the workplace, that I should apply a subjective test and attempt to ascertain whether she felt that she was being sexually harassed.

47I am sympathetic to the concerns that Ms. Fullerton raises in her testimony and the problems encountered in particular by women working in restaurants, hotels and bars. But ultimately I must attempt to ascertain whether in this particular case the sexual demands of an employer, or supervisor, can be construed to create a condition of employment. Mr. Relph's alleged physical encounter with Ms. Fullerton was never reported to any other employee or member of management at Davey C's while Ms. Fullerton was employed there, nor were similar incidents encountered by other members of the staff. In my opinion the evidence does not indicate that Mr. Relph's interest in Ms. Fullerton either as a potential friend of the opposite sex or as an employee developed to such an extent that he expected or exacted Ms. Fullerton's friendship, or for that matter, any sexual favours as an aspect of her employment as a waitress at Davey C's. His comments and his hugging may have offended Ms. Fullerton but in my opinion she handled Mr. Relph well and kept him at his distance.

48The final question that must be addressed is whether Ms. Fullerton's dismissal as an employee of Davey C's was in any manner brought about because she refused Mr. Relph's advances. If her refusal to have a personal relationship became a factor in her employment or ultimately a factor in her dismissal then I must find that there has been a breach of the Human Rights Code. It is my opinion that Ms. Fullerton was dismissed by Paul Linklater based on his own opinion and that of Mr. Cooper. The testimony of both David Cooper and Paul Linklater that they did not think that Ms. Fullerton had the demeanour and personality to serve the public at Davey C's is unrefuted. In my opinion this conclusion was based on a combination of factors including their impression of her appearance, and her personality when dealing with the public. I do not find any evidence whatsoever to hold that their opinions were influenced by Glen Relph's alleged personal interest in Ms. Fullerton. On the contrary, there is uncontradicted evidence of Mr. Relph that he regarded Ms. Fullerton's skills in a more positive fashion than either Mr. Cooper or Mr. Linklater. He was not comfortable in dismissing her and indicated that he would give her a reference. I accept the testimony of both Mr. Linklater and Mr. Cooper that they were not aware of the limited friendship between Mr. Relph and Ms. Fullerton and that this limited friendship did not have any bearing whatsoever on their decision to terminate Ms. Fullerton's employment during the latter part of November, 1979.

49In conclusion, I must add a postscript to the effect that this is a most unfortunate case. It is unfortunate that it was not settled in 1979; that it required three years of investigation and negotiations with the Ontario Human Rights Commission; that it required a three-day public inquiry; and that it required nearly seven months until a final decision was completed.

50Ms. Fullerton was treated in an unprofessional manner by the management of Davey C's. Mr. Relph did not communicate with her in a professional managerial fashion during the six weeks that she worked there. She was at no time told what the problems were with her appearance or service, and consequently she was never given the opportunity to improve herself. She received inadequate reasons for her dismissal both from Mr. Relph and Mr. Linklater. However, Ms. Fullerton did not complain, as she could have during her employment at Davey C's, to Mr. Linklater, to Mr. Cooper or to Ms. Faye Hartford, or for that matter to any of the other employees. For the reasons given above I find that there has not been a contravention of either Section 4(1)(b) or (g) of the Ontario Human Rights Code.