Jones v. Amway of Canada Ltd., 2001 CanLII 26217

Jones v. Amway of Canada Ltd.

2001-04-30

Ontario Board of Inquiry

Kate Jones

Complainant

and

Ontario Human Rights Commission

Commission

v.

Amway of Canada Ltd. and Art Knott

Respondents

Date of Complaint:

April 30, 1996

Date of Decision:

April 30, 2001

Before:

Ontario Board of Inquiry, Patricia E. DeGuire

Decision No.:

01-009

Appearances by:

Sharon Ffolkes-Abrahams, Counsel for the Commission

Kate Jones, on her own behalf

Thomas A. Stefanik, Counsel for the Respondents

RETALIATION — definition of reprisal — discriminatory treatment after filing grievance — EVIDENCE — credibility of witnesses — EMPLOYMENT — — Wall test for reasonableness of employer investigation — SEXUAL HARASSMENT — obligation to provide workplace free from discrimination — sexual advances by supervisor — LIABILITY — employer/corporate liability for supervisor

Summary: The Board of Inquiry has dismissed a complaint filed by Kate Jones who alleged that Amway of Canada Ltd. and Art Knott terminated her employment because she tried to assert her right not to be sexually harassed.

Kate Jones worked for Amway of Canada Ltd. for eleven years. She was a valued employee, working as a Telecommunications Assistant and supporting Arthur Knott's work in the telecommunications area. Her employment ended in April 1996 when Amway terminated Jones without cause. She filed a complaint alleging that Arthur Knott sexually harassed her and that Amway and Knott terminated her employment when she took issue with Knott's discriminatory conduct.

Jones complained on March 21, 1996, that Knott hung around her, stood and stared at her, over-supervised her, arranged to be on trips when she was, behaved as though overtime hours were a gift that he could bestow to help her out financially, told her that she was a beautiful girl, and, in general, made her uncomfortable in his presence. She did not want to be in the phone room alone with him. Jones spoke to Karen Klopper and Jeff Millar about this, and proposed that certain arrangements be made that would put distance between her and Knott. She indicated that she was considering quitting. During this period, Ms. Jones consulted a lawyer who provided her with advice about her rights. Ms. Jones was upset and was off work for a couple of days.

Klopper investigated Ms. Jones' complaint immediately and decided that no sexual harassment had taken place. By Jones' admission, "things had never gotten physical". Millar and Klopper were not happy about Jones asserting "conditions" for her work. They refused her proposals, but indicated that if Jones continued to work Knott would have no personal conversations with her, and where appropriate he would say "Amway" instead of "I".

Ms. Jones agreed to this and returned to work on April 1, 1996. Millar and Klopper believed that the matter was resolved, and that she was willing to "make it work". However, on April 17, on the advice of her lawyer, Jones wrote a memo to Amway setting out what had happened from her perspective. At this point, Amway decided to fire Jones and a script was read to her which stated: "Our working relationship has been destroyed by your allegations".

The Board of Inquiry found that it was clear from the evidence that the reason for Jones' termination was not because she made the allegations against Knott, but because she unreasonably continued to pursue the matter after an appropriate investigation had been done and a resolution had been achieved. If Jones continued to work at Amway it would have interfered with Amway's ability to function efficiently in the telecommunication area.

The Board of Inquiry concluded that Amway's decision to dismiss Jones was not a reprisal against her for lodging a sexual harassment complaint.

CASES CITED

Abouchar v. Toronto (Metro) School Board (No. 1) (1995), C.H.R.R. NP/96-106 (Ont. Bd.Inq.): 106

Bryan v. PMI Food Equipment (No. 2) (1998), C.H.R.R. NP/98-207, [1998] O.H.R.B.I.D. No. 18 (QL): 72, 94, 107

Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 109

Canada (Treasury Board) v. Robichaud 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326: 74, 106

Chowdhury v. Windsor Public Library (No. 1) (1995), C.H.R.R. NP/97-63, 96 C.L.L.C. § 230-004 (Ont. Bd.Inq.): 9

Donaldson v. 463963 Ontario Ltd. (1994), 1994 CanLII 18429 (ON HRT), 26 C.H.R.R. D/335 (Ont. Bd.Inq.): 107, 109

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 70

Fu v. Ontario (Government Protection Service) (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 106

Graesser v. Porto (1983), 1983 CanLII 4717 (ON HRT), 4 C.H.R.R. D/1569 (Ont. Bd.Inq.): 84

Imperial Oil v. Entrop (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.): 107

Makkar v. Scarborough (City) (1987), 1987 CanLII 8552 (ON HRT), 8 C.H.R.R. D/4280 (Ont. Bd.Inq.): 106

Moffatt v. Kinark Child and Family Services (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.): 9, 74, 107

Parks v. Christian Horizons (No. 1) (1991), 1992 CanLII 14242 (ON HRT), 16 C.H.R.R. D/40 (Ont. Bd.Inq.): 106

Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 106

Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd.Inq.): 74

York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Ont. Ct. (Gen.Div.)): 109

LEGISLATION CITED

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 7(3): 7

s. 8: 4, 8, 94

s. 36(2): 2

s. 41(1)(b): 109

INTRODUCTION

1Approximately eleven years ago, Kate Jones ("Jones"), the complainant, commenced employment with Amway of Canada Ltd. ("Amway"), the corporate respondent. Her employment ended about five years ago when Amway terminated Jones without cause. As a result, Jones filed a complaint with the Ontario Human Rights Commission ("Commission") on April 30, 1996, and amended on October 1996 ("complaint"). She alleged that Amway and Arthur Knott ("Knott"), the personal respondents (then her immediate supervisor), discriminated against her during her employment by treating her differently because of her gender; that Knott sexually harassed her; and that Amway and Knott terminated her employment because she tried to assert her rights under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code").

2On July 27, 1999, the Commission referred the subject-matter of "reprisal only" to the Board of Inquiry ("Board"). The Commission decided, pursuant to subsection 36(2) of the Code, that there was insufficient evidence to establish that Jones was discriminated against or harassed in employment by the respondents because of her gender or that a poisoned work environment existed and that the evidence relating to gender and sexual harassment did not warrant referral to the Board.

3During the hearing, the focus of the evidence was on the allegation of sexual harassment. Although that issue is not before the Board to be decided, much of that evidence is relevant to the sufficiency of the investigation of Jones' complaint that Amway conducted. The Board will refer to that evidence where it is relevant to the sub-issue of the adequacy of the investigation and the allegation of reprisal. Relevancy is determined on whether the evidence can be linked to the scope of the complaint: the sufficiency of the respondents' actions and the parties' conduct, and what might have informed or stimulated their emotive sense in dealing with Jones' complaint and the aftermath. Based on relevancy and because the Board has taken the decision to dismiss this case on the merits, the full text of the evidence and the submissions, including that concerning remedy and the expert evidence by Dr. Hammond, do not form part of this decision. Dr. Hammond gave evidence, on behalf of Jones, as an expert in the field of family medicine. The focus of her evidence was the impact of the termination and the events leading up to it and the aftermath had on Jones: that evidence is more relevant to remedy.

ISSUE

4Did the respondents terminate Jones' employment because she sought to assert her right as protected by s. 8 of the Code?

DECISION

1. Reprisal on the Merits

5The complaint is dismissed. There is no order for costs against the Commission.

2. Motions

(i) To Amend the Style of Cause

6On March 20, 2001, Jones gave notice of her intention to bring a motion to amend the style of cause to "add the name of Quixtar Canada Corporation as a respondent" to this complaint. Jones states that Quixtar has amalgamated with Amway. Jones filed the notice of motion when the Board was in the evening of writing its decision on the hearing on the merits of the reprisal issue. The Board has decided that it is not necessary to deal with this issue because the complaint is dismissed.

(ii) Add the Ground of Reprisal under Subsection 7(3)(a)

7On the first day of the hearing on the merits, the Commission and Jones brought a motion to amend the Complaint to add the allegation of reprisal under subsection 7(3) of the Code. The Board dismissed the motion.

THE LAW

8It is necessary to delineate the scope of that right protected under s. 8. It states:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9Filing a complaint with the Commission is not a prerequisite for claiming the protection under section 8. That protection encompasses a situation where the complainant lodges a human right complaint with their employer: (Chowdhury v. Windsor Public Library Board (No. 1) (1995), 96 C.L.L.C. § 230-004 [C.H.R.R. NP/97-63] (Ont. Bd.Inq.)). However, there must be a nexus between an actual or threatened retaliatory act and the lodging of a complaint of discrimination that is protected under the Code: (Moffatt v. Kinark Child and Family Services (No. 4)(1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.)). If based on the evidence before the Board, there is a finding that the respondents terminated Jones' employment because she lodged a complaint with Amway, or because she sought protection under the Code on an enumerated ground of discrimination, the Board will find that her right under s. 8 has been infringed. Furthermore, if the Board finds that reprisal was a motive for the respondents' decision in dismissing Jones, the Board will find that there was a breach of s. 8.

SUMMARY OF THE EVIDENCE

10Jones (then Kate Brockman) began working with Amway in February 1991. She was 19 years. She had just finished Grade 12. She had worked at several temporary jobs via employment agencies, but this was her first real job. Her first position at Amway was a Temporary Mail Clerk I. Her duties included stuffing envelopes, filing and various office jobs. Amway hired her permanently in December 1991. During her employment at Amway, Jones' performance reviews indicate that she either met the job requirements or was above the job requirements. Jones was promoted to Mail Clerk II on January 4, 1993: (see Jones' Performance Appraisals — Exhibit 5). That level of performance review was consistent after she was promoted to Mail Clerk II/Telecommunication Assistant ("Mail Clerk II"). Knott became her direct supervisor from then until her termination.

11In both positions, one or all of three persons, namely, Karen Klopper, Supervisor of Human Resources ("Klopper"), Knott and Jeff Millar, Manager of Management Information Systems/Customer Service/Business Conduct and Rules ("Millar") made or reviewed several superlative observations about Jones' performance. More specifically, "Management's Comments" in one of those Performance Appraisals states "[Jones] is the most organized person in the department as well as being a hard worker, and an all around pleasant person to deal with ... She is a very pleasant person to deal with at all times, and an excellent worker ... and with her personality, a joy to be around ... Jones is intelligent, and hopefully we can present her with more interesting and challenging work in the future which I am sure she can handle. It is a pleasure to have her as an employee": (see Exhibit 5). Jones took courses to enhance her knowledge and performance of her work. Amway paid for the job-related courses she took and passed. During her employment, she achieved promotions and several wage increases. Jones' wages doubled in a period of five years: (see Exhibits 5 and 6).

12Jones and Knott enjoyed good working and personal relations. So much so, that during a period of Knott's hospitalisation, Jones visited him daily, and of her own volition, took his pay cheque to his home after he was discharged. By inference, Jones was a diligent worker, insightful and dependable. Management liked and appreciated her, communicated it to her and rewarded her for it. The tenor of the good relations between Jones and Knott came to an end sometime between August 1, 1995,¹ and March 21, 1996, when Jones first complained to Knott's manager, Millar, about him. Ultimately, the employment relations between Amway and Jones ended on April 26, 1996. Amway terminated Jones "without cause".

Jones' Evidence

13Jones was in the early stage of a second pregnancy at the time of the March 1996 events. Klopper, Knott and Millar were aware of this. She avers that she made a complaint to Millar about Knott before March 21, 1996, because he had threatened to take away one of her job responsibilities. She states that on March 21, 1996, she made a complaint to Millar against Knott because she had concerns about their interactions and working relations.

14Jones states that she told Millar that Knott was sullen at times. The previous weekend, she had worked with him, but he ignored her. He decided not to give her any overtime because she was too tired. She had never told Knott that she was tired. It bothered her when Knott purported to give her overtime because he thought she needed the money. It disturbed her because she felt that Knott was trying to show her that he had power over her.

15Knott had made plans so that both of them would be in Toronto at the same time. Usually, Knott travelled to Toronto by a rental car. On this occasion, he decided to travel by train. She was concerned because it seemed that he was taking the train to be with her. Also, she felt that one of them should have remained at the office to troubleshoot if there were problems. A few weeks earlier she had gone to Toronto alone. Knott had promised that he would ensure she stayed at a nice hotel. A day after arriving in Toronto he called her hotel room. She felt there was no reason for him to call. She felt uncomfortable because he had nothing really to say. Also, he had promised to get her to take a course in California. Knott had said they could try to go together and do things together.

16Knott sauntered around her desk unnecessarily. Often, when Knott came to talk about business matters, he could have done so by cc:mail. Sometimes, she would be standing on a ladder and he would just appear and stand there: that startled her. Often while there, his conversations would be personal: e.g., asking about her activities on the night before or the weekend. Knott could not know what she was doing because most of her service calls came directly to her from other employees. He had refused to approve courses on the basis that "... his experience must mean something". He had said, "everything [she] had to learn had to come directly from him". She believed he was trying to get them to spend more time together. She preferred not to work in the phone room because she did not know what to expect from Knott from day to day: whether he would be moody, ask personal questions or saunter around her desk. It was disturbing to go to work after hours or weekends when very few employees would be in the building. Also, she observed that he had booked off the same Fridays from work as she.

17Jones states that Millar asked her if "things had ever gotten physical", and she told him no. When he asked her that question, she thought he wanted to know if Knott had ever touched her or tried to kiss her. Millar asked whether to her knowledge "it had happened to anyone else" and she said no. She began to cry and told Millar that she would rather quit than return to the phone room. Millar allowed her to take the rest of the day with pay. She told him that she would be absent the next day, i.e., Friday. She did not have to return to work until the following Monday at 08:00. She expected him to speak to Knott. She did not expect an answer that day.

18Jones' evidence is that on Monday, March 25, 1996, Klopper asked her to come to her office. Klopper enquired about the problems she was having. She repeated the information she had related to Millar. In addition, she told Klopper that she had forgotten to tell Millar that when she was going to Toronto, Knott had told her that she should be careful when she went to Toronto because she was a beautiful girl. Knott made that remark to her when she was in the phone room alone. Klopper asked her what could be done to improve things. She told her that she did not think things could be improved and that she would not go back to the phone room. Klopper asked her "if things had ever gotten physical". She thought Klopper meant whether Knott had ever tried to touch or kiss her and she replied no. She said that she was afraid to encounter Knott at work if he was aware that she had made a complaint. Klopper informed her that no one had spoken to Knott as yet, but the intention was to speak to him that morning. Klopper asked her whether she was afraid of him physically hurting her and she said no. She was just afraid of him "freaking out" on her. She asked Klopper if she could go back to work in the mailroom. Klopper told her if she remembered anything else to inform her. Jones states that she had no concerns about the manner in which Klopper handled her complaint at that time. In cross-examination, Jones testifies that she could not recall many things Klopper had said to her. She recalls that Klopper did not offer any solutions. She expected Millar and Klopper would speak to Knott and therefore, it was fair to give him the opportunity to respond.

19About 16:00 that day, Millar called her into his office. Klopper was present. They told her when Knott said "I" he meant Amway, and that she must have misinterpreted what he said about overtime for the overtime offered to her was justified. In cross-examination, Jones admitted that Klopper and Millar had told her that based on the investigation they concluded that there was no harassment. She asked why Knott would stand and stare at her and they told her he was just supervising her work. She says she tried to explain that Knott did not know what line she hooked up. Millar responded that with twenty years' experience, Knott probably could have known. When she asked why Knott had called her in Toronto, Klopper replied that perhaps Knott was interested in the course.

20Jones testifies that Klopper and Millar gave her two options: (1) to return to her job; or (2) take a six-hour-day part-time work: there would be no benefits, but the value of the benefits would be paid in lieu of a wage decrease. Millar told her he did not want her to take that option: he did not want her to quit. She cried and told Klopper and Millar they had left her no choice but to quit because she did not want to go back to the phone room to work with Knott. They told her not to give an answer then, but to go home and discuss it with family and friends and give them a decision the following morning. On Tuesday, March 26, about 07:20 a.m. she left a message on Millar's voice mail stating that it was in her best interest to speak to a lawyer and therefore, she was taking that day as vacation. She left a similar message for Klopper. She decided to consult a lawyer, because she felt they did not address all her concerns. She had worked hard at her job and did not want to take a demotion.

21On Tuesday, March 27, she had a meeting with Millar. She gave him a telephone number that Knott had given to her. He had told her she could use it to make personal long distance calls. Millar took the number, but made no comment. She informed Millar she had contacted a lawyer whose advice to her was, it would not be in her best interest to quit her job. She informed Millar that "it was [her] decision to keep working in [her] current position". She told him she had "ways to make things work out" because she "wanted to make sure they were not trying to get the rid of [her] or start giving [her] a bad job review". She had jotted down some ideas before the meeting and she proceeded to go through them.

22Jones states that she told Millar that she wanted her desk moved from the phone room to the mailroom. She did not want to be alone with Knott. Millar told her that her desk had been given away. Also, she told him she wanted to spend equal time in the mailroom and the phone room. Although Millar commented that they could make her spend as much time in any location as they want[ed], he was not "hostile" when he said it. She asked Millar to move her desk back in the mailroom because other people worked there and it was an open office area. She says Millar asked her whose idea was it to move her desk into the phone room. She replied it was her idea. When she was initially given the Mail Clerk II position, she moved her desk into the phone room to avoid walking to and from the mailroom. Jones states that Millar "was defensive" and was not receptive to her ideas. Millar asked her to give him the list in writing and said he would get back to her. She felt he was mad at her for making any suggestions. She asked Millar if she should go back to the mailroom and he said yes. She gave Millar a photocopy of her list: it is reproduced verbatim below (Exhibit 7).

JEFF MILLAR: March 27/96

½ day mailroom with specific duties assigned

½ day Telecom, with:

{CONTINUE} — my desk moved back to mailroom

{"VOICE"} — phone system duties (already trained to do basics ie. add users

{TRAINING} — delete, change, wire etc.

*I can also do LAN connections on my own and keep the records of all changes.

— study the phone system using the AT&T books and computer program. (Art has emphasized time and again that this is supposed to be the best way to learn to use the phone system.

(i) Set up /install new vice-tel users — changes

(ii) Order supplies (i.e. cable, tools, jacks, connectors etc.)

(iii) I can be c e-mailed/v-telec. so that he can let me know what jobs need to be done

(iv) No overtime until maternity leave (can bring in doctor's note if required)

(v) Jeff Millar should know what's going on, on a day to day basis i.e. trips being planned classes, etc.

After Maternity Leave:

— training for the network side of Telecoms.

— Classes only or as much of as possible)., all classes to be approved by Jeff Millar.

23Jones states that about 16:15 Millar called her back to his office and asked for the original copy of her "conditions". He asked her to write out exactly what she wanted and sign it. She explained to Millar that they were proposals or suggestions, not "conditions". He disagreed and said she did call them "conditions". That day she spoke to her lawyer who advised her to bring the list to him before she gave it to Amway. In cross-examination, Jones agrees that Millar told her that she was "dictating conditions" to him, which was not acceptable. Also, she acknowledges that although Millar did not impose a time limit when she should give him her proposals in writing, she understood that it was required as soon as possible. And Jones agrees that her understanding of that meeting was that she and Millar were trying to deal with the issue and to get on with the job.

24On Wednesday, March 28, around 10:50 while she was working in the mailroom, Millar asked her to bring the written proposal to him. She told Millar she was unable to give it to him before her lawyer reviewed it. About 16:20 Millar asked her to come to his office. Klopper was in his office. Millar told her she had procrastinated long enough and they would not accept any of the proposals she would give them. She asked him what he meant by "procrastinated long enough". He replied that it should not have taken so long to get the proposal back to him and that she had not worked in her job since the previous Thursday. He said he wanted the matter settled. She reminded Millar that he had given her permission to work in the mailroom. Millar said he didn't care, he wanted the matter settled and he did not want to have "third party conversations" with the lawyer involved. Klopper and Millar informed her that after checking, the original offer of part-time work in the mailroom was no longer available because there would not be enough work for her there. The only options were to take her job back "as is" — no changes, or quit. Millar "accused" her of changing her story and said her complaint was not credible. He said they had investigated and found it "incredible". She received no answer to her question why they felt her story was incredible. She asked when they felt that she had changed her story. They replied that initially she had decided to quit rather than return to the phone room. She changed her story since coming to them with "proposals".

25Millar told her it should not be a concern to her to move out of the phone room since it was her idea to move in there in the first place. She told Millar that because that was the area she works in frequently, "did not give [Knott] the right to do anything to [her]". Millar and Klopper looked at each other and Millar said, "do something" and then they both smiled at each other. They said they needed an answer about the options. If she decided to take her job back only two changes will occur, namely: (a) Knott will have no personal conversations with her; and (b) where appropriate he will use "Amway" instead of "I". They told her if she decided to take her job back, she should tell them how she proposed to make it work. Millar seemed "angry" at her. He said he needed an answer by the next day noon (which was Friday, March 29, 1996).

26Jones states that she told Millar that she did not know if it was possible to give an answer by noon. Millar did not give her a chance to explain why. She told him that she had an ultrasound scheduled for the next morning, so she did not know if she could get an answer to him by noon, but she would try. Millar reiterated noon. Again she tried to explain to Millar that she had an ultrasound and he said "we want your answer by noon". She tried again and he said "noon". Finally, when she advised him of the ultrasound he said "fine" and she left. That evidence is not quite consistent with Jones' notes that she used to refresh her memory. Jones' notes state: "Jeff told me that I must give them an answer by tomorrow (March 29, 1996) by noon. I told Jeff that I didn't know if this would be possible for me, he restated, "noon", I repeated myself, he said it again and then I told him I had an ultrasound at 8:00 a.m. and I wasn't sure when I would be able to call but I would try by 12:00 PM": (Exhibit 7, tab 6).

27At 10:15 on March 29, 1996, she informed Millar that she would be coming back to work. She asked him whether he wanted the proposal written or verbal. Millar said his concern was that she had said she would rather quit. She told him that as long as she could return to work without being harassed that was all that mattered. Millar said he would see her on the Monday. About 11:07 he called her (at home) and said he needed to clarify what she had said about coming back to work. She repeated that all she needed was to return to work without being harassed. Millar told her he needed to clarify that no harassment occurred. He said, "do you understand?". She said yes. Millar's tone of voice "was not very nice". He seemed angry. She did not appreciate his telephone call because she felt he was trying to switch words around her to make her feel that no harassment occurred.

28Jones states that she returned to work on April 1, 1996. She was back in the phone room at the same job. In cross-examination, she agrees that based on Millar's decision, and after consulting with her lawyer, she was "prepared" to return to work. She states that between April 1 and 17 she was doing her job. She avers that she sent the memo dated April 17, 1996, because "she wanted to have a record of what occurred and her lawyer had advised her to do so". The memorandum is reproduced verbatim below (Exhibit 8, tab 7):

This will confirm my meeting with you of March 21, 1996, and my meeting with Karen Klopper of March 25, 1996, wherein I advised you and Karen of a number of incidents which I considered to be harassment. I described incidents in some detail, and I also advised both of you that these incidents were giving me a great deal of concern.

On March 25, 1996, you advised me that you had reviewed the matter and that I had two or three options as follows:

(i) To go back to my job: or,

(ii) To take part time work in the mailroom with a corresponding reduction in pay, benefits, etc.; or,

(iii) To quit.

You advised me not to give you an answer immediately, but to take some time to think about it. This will also confirm that on March 27, 1996, I advised you that I wanted to continue in my present position, but free from harassment. I provided you with some suggestions for changes (for example moving my desk etc.) in order to help to alleviate my concerns about harassment. You advised that you required my suggestions to be in writing and signed by me.

At 10:50 a.m. on March 28, 1996, you again requested a written and signed list of my suggestions. At 4:20 p.m. on March 28, 1996, you said I had "procrastinated" making this written list of suggestions, and that you would not accept any suggestions I provided at this point anyway. You advised me that I had only two options now, as follows:

(i) To go back to my job "as is" with "no changes"; or,

(ii) To "quit".

You further advised me that the incidents of harassment which I had earlier described to you and Karen were "incredible".

On March 29, 1996, I reiterated to you that I was primarily interested in being able to return to work without harassment.

I do not want there to be any misunderstanding about our respective positions concerning this matter. If you require anything else from me or if you feel there is anything else I should be doing at this time, please let me know.

Klopper's Evidence

29Klopper states that she had worked for Amway from May 1990 to August 1996. She resigned after her spouse took a position in Calgary. She held several positions in Human Resources including supervisor, the position she held from 1995 to the time she resigned. She introduced pay equity; helped to write Amway's sexual harassment policy and was responsible for its implementation to Amway's employees; assisted in the job evaluation system; and dealt with human rights, WCB, and long- and short-term disability issues. She states that she had specific training in sexual harassment.

30Klopper testifies that she was quite surprised when she heard Jones was having difficulty with Knott. Millar and Earl Flynn, Manager of Human Resources ("Flynn"), informed her that Jones had met with Millar and had complained to Millar about Knott. Millar told them Jones was upset and told him she would not go back to her job. The matter was referred to her for an enquiry and to get a better understanding of Jones' concerns and hopefully to find a solution.

31On March 25, 1996, she met with Jones. She made notes of their meeting (see Exhibit 34). She recalls Jones began by complaining about Knott's moodiness. Jones related that the previous Saturday, Knott was extremely quiet and had told her he was hurting all over. She felt she did not have to put up with his complaining. Later he said she didn't know what it was like when every bone in your body hurt. Jones said if Knott is feeling sick he should not come to work. She related that the previous Monday Knott had told her that because she was too tired he would not have her do anymore overtime. She did not tell him she was too tired to work overtime. Also, he had offered her overtime because she needed the money: she did not need the money. He talks to her about overtime as if personally, he has the power to give or take it away.

32Klopper states that she asked Jones whether she had ever talked to Knott. She replied that she tried getting him to admit, in front of other people, that he had offered her overtime when there was no work. He would not admit it. She asked Jones if she ever told Knott how she felt. Jones said she had spoken to him about his morose manner. He had replied that she was sullen too. Jones felt Knott did not have to observe her on the job as much as he did. He was spending more time in the phone room, in the past he was mostly in his office. Also, she said Knott takes the same Fridays off as she: she was suspicious about that. She said a couple [of] employees had questioned it. Jones related that when she was going to Toronto alone, Knott told her that she should be careful in Toronto because she is a "beautiful woman". She found the comment offensive.

33She asked Jones whether Knott had ever touched her inappropriately or used "suggestive language" to her. Jones said no. She asked Jones whether Knott had ever threatened her or her job, or if she felt that she was in any kind of danger by going back to the phone room. Jones said no, but she did not want to go back to the job in the phone room. She asked Jones if there was anything "we" could do to make it better for her to return to her job. Jones replied that nothing could be done. She said "there is no more trust". She asked Jones if Knott should not be given a chance to correct the situation. Jones replied she would "never go back", and asked whether she could have her mailroom job back. Klopper responded that she was not aware of any job being available in the mailroom, but Knott would still be the supervisor. She said Jones seemed surprised by the latter remark, and asked whether she could be transferred to another department. She informed Jones that there might be some jobs posted on the bulletin board, but was not aware of any other openings. Jones stressed that she would not go back to her job.

34Klopper states that she asked Jones whether she thought it was possible that Knott did not know he had offended her, because other than telling him about his moodiness, she had not discussed her concerns with him. She told Jones that it would only be fair to give Knott a chance to make amends so that she could return to work. Jones replied that it was too late and she would not go back. She told Jones that perhaps Knott did not know he had offended her. She replied, she would never go back: that is, to the telecommunication job. She asked Jones whether anyone else had first-hand knowledge of what was going on. Jones responded, "no one".

35She asked Jones whether the job was as it was described to her before she began; whether she was aware the job required travelling to seminars; and if she understood that the job was a training position and would require close supervision. Jones replied "[y]es, I knew there would be training" (see Exhibit 34). Jones said she did not understand why she and Knott had to attend seminars together. She said Knott took the train to a seminar in Toronto because she did; he called her at her hotel and they had dinner together; he had promised that she would stay at a nice hotel; and he told her he would ensure that she "get what training she needed". She said Knott made her feel as if he was doing her favours. She states that she asked Jones: "[y]ou have worked for Art before, what's different now?". Jones replied that she never had to work so close with him before. She asked: "[t]here was never any problems before?". Jones replied that she felt she was at the stage where she could do things on her own and that Knott should not be watching her. Jones said his watching was not work-related. She asked Jones to respond to the fact that a supervisor should review and observe the work that is being done. Jones replied that Knott could not possibly see what she was doing from the bottom of a ladder. She then advised Jones to go back to the mailroom. She informed her that she would have to discuss the matter with Millar and Knott and that either Millar or herself would get back to her.

36Klopper states that Jones did not use the term "sexual harassment" in her complaint. Nor was it clear that Jones' complaint was about sexual harassment. She did not ask Jones if her complaint was about sexual harassment: it would have been improper to do so. She states that she did not explain Amway's harassment policy to Jones. Jones did not ask her for a copy of the Policy. Every employee was given a copy of the policy and was required to attend the education session. To ensure all employees attended, there were several make up sessions, sign off sheets and schedules. Every employee was required to sign a document stating that s/he had attended the session, read and understood the policy. The statement Jones averred Knott made about being beautiful raised a flag that she needed to investigate to get more information and to determine if Jones' complaint was a case of sexual harassment. She felt it was important to find out the context in which the comment was made. She did turn her mind to sexual harassment and other human rights issues. Those were always in the back of her mind throughout the investigation. Her investigation consisted of interviews with Jones, Knott and Millar. She did not interview the employees (all women) who[m] Knott supervised. Her investigation took one full day.

37She states that she informed Millar of her interview with Jones. Subsequently, she and Millar met Knott. Flynn had instructed her to take detailed notes of her interview with Knott. After interviewing Knott, she met with Flynn and informed him of the information she gathered from the interviews with Jones and Knott. She concluded that there was no sexual harassment. They then considered whether the working relations between Jones and Knott could be repaired.

38Klopper says on Wednesday, March 27, 1996, Millar met with her and Flynn and advised them that he had another meeting with Jones. Millar told them that she had given him "conditions" for her return to work. Jones did not want to deal with Knott directly any more: any contact would be done by cc:mail. She wanted her desk moved to another part of the building; stated specific functions she did not want to do until after maternity leave; and had talked about more direct involvement with Millar in the management process.

39On Thursday, March 28, 1996, she and Millar met with Jones. They advised her that they did not believe anything improper had happened between she and Knott. However, they were looking at some options. They told Jones that their hope was that she would go back to her telecommunication job and that she and Knott would start afresh to "make things work". Jones repeated the demands she had made to Millar. She stipulated how she wanted the job to be. They told Jones that was not conducive to doing her work. They told her if she went back to her telecommunication job, Knott would refrain from using the word "I" and use "Amway" instead and he would refrain from engaging her in personal conversations. Her work still needed supervision because she was still in training and learning that job. Jones told them that her lawyer advised her that the worse thing she could do was to quit. Jones had expressed an interest in going back to her mailroom job. They had considered it and advised her that it was no longer an option. Jones had expressed a strong desire not to go back to her former job and that she preferred to quit. So, they advised her to consider whether that was a possible option or if she wanted to stay employed. They asked Jones to give that some thought and advise them in the morning.

40In the meeting on Thursday, March 28, 1996, there was a dispute between Jones and Millar whether the term "conditions" or "proposals" was used by Jones in her meeting with Millar the previous day. Jones said her lawyer had told her not to say "conditions", rather, she should say "proposals". There was no agreement on what term Jones had used: it was a matter of semantics: for whether they were proposals or conditions, they were not acceptable and they told Jones so.

41Klopper testifies that on March 29, Millar informed her that Jones had called and informed him that she was returning to work the [next] Monday. They felt that was a good sign. By her willingness to return to work they understood that everyone was going to try to "make it work". Up to that point, they had not considered dismissing Jones. She states: "We wanted her back to work. She had expressed an interest in learning that job. She was enthusiastic about it. We had created that job for her. So we were pleased that she chose to go back to that job". As of March 29, 1996, when Jones said she would return to her job, she believed they were working towards that direction. One of Jones' "suggestions" was implemented, that is, if she had concerns about overtime, Jones could provide a doctor's note.

The Vendor Visit

42Klopper states that Millar told her that in early April, Knott and Jones were scheduled to go to Sprint Canada for a "vendor visit". Amway was considering it as a potential supplier. Jones had refused to attend. It was her understanding that previously Amway had looked at Unitel as a potential supplier. Jones had attended that visit. Not attending was a missed learning opportunity.

The April 17, 1996, Memorandum

43She states that Millar brought the April 17, 1996, memo written by Jones to her and Flynn's attention. The three of them discussed it. The content of the memo left the impression that there was no willingness on Jones' part to go forward and to make the relationship work. They thought the issue had been dealt with and they were moving on, but seemingly, it was still festering. She, Millar and Flynn spoke at length about whether the relationship would ever work. They discussed whether Jones would ever become a telecom specialist with the working relationship the way it was. Also, they discussed whether Amway's objectives would ever be met with Jones on the job. Amway needed support in the telecommunication area. Knott was the only one trained in that area. Jones was selected to be that back-up with training. Millar and Flynn decided to terminate Jones. The decision was not related to her initial complaint [n]or was it in part made to punish her for complaining. Nor was the decision meant to be an example to other employees.

The Termination

44On April 26, 1996, she and Knott met with Jones. The purpose of the meeting was to inform Jones that she was being terminated. Flynn prepared the "script" (see Exhibit 36). According to Amway's policy, as Jones' immediate supervisor, Knott was required to read the termination script. Each one spoke from the script on the company's behalf. Knott told Jones she was being terminated. She spoke about the benefits. The Commission asked Klopper what is meant by the term "destroyed by your allegations". Klopper states that perhaps it referred to the contents of Jones' April 17, 1996, memo. Jones had continued to use the term "harassment" even though it was found that there was no harassment. Klopper states that there was "very little" reaction from Jones when she told her that she was being terminated. She escorted Jones to her desk to collect her belong[ing]s and then escorted her out of the building.

Millar's Evidence

45Millar testifies that Amway is a multi-level marketing corporation that sells products through its independent business owners ("IBO"), distributors and building multi-level organisations. Its Canadian operation works out of London, Ontario. He began working with Amway in 1980 as a Systems Analyst. In 1982 he was promoted to Supervisor of Systems and Programming. In 1986 he was promoted to Supervisor of Systems and Operations. In 1990 he was promoted to Manager of Information Systems. In 1992 he was promoted to Manager, MIS/Customer Service/Business Conduct and Rules, which included telecommunication.

46Millar was Knott's direct supervisor the entire time Knott was employed with Amway. He was Supervisor of Telecommunications/Office Services during 1995/1996, which is, the material time of Jones' complaint to Amway (Knott left Amway and went to Amway Corporation Ltd., in Grand Rapids, Michigan, in early 1998). He was responsible for the entire Amway's telephone system including the desk telephones. His duties included: management of the mailroom, the switchboard and the telecommunications network and related items; the LAN and WAN systems which basically allowed the company to communicate; maintaining the voice messaging system that required constant additions, deletions and reconstruction with the telephone system and upgrading when needed; and the word processing service. Much of the work involved moving around. A significant portion of the work took place after normal business hours and on the weekend. Network upgrades to the United States generally took place on weekends because that required dismantling the communication structure.

47The new position of Mail Clerk II/Telecommunication Assistant was created for two reasons: (i) the company needed support for Knott in the telecommunication area; (ii) because there was a reduction of the work in the mailroom. Knott was the sole person in the telecommunication area. He carried a cell-phone twenty-four hours daily and was always on call. The company was trying to rectify that by providing additional resources. Initially, Amway considered making the position full-time and hiring a fully trained person who would cover in his absence. Knott's illness and hospitalisation, in part, supported that choice. During that time, Millar had contacted Knott several times to resolve telecommunication problems. Jones had expressed interest in that area. But she had no previous education or experience in the telecommunication field. However, they felt with Jones' abilities and her expressed interest in that area, she could move into that role and be taught the Communications field. Besides, that option avoided the reduction of her hours because the work in the mailroom had diminished. Also, Amway likes to promote from within even though it would have taken a longer time to provide the support Knott needed. So in November 1995, Jones was promoted in that new job. Knott was always willing to pass on his knowledge to virtually everyone. Other than he, there was no one else to train Jones. She would have learned virtually everything from Knott. He had thirty years' experience.

48The Communication Room (the phone room) housed the voice messaging switch; the LAN network servers and other equipment; Bell Canada's telephone switch equipment; the terminal control units which connected the order entry "3270" terminals to the US main frame; and every location in the building which had telephones or P.C. LAN connections ultimately terminated in that room. The room was about twelve feet by thirty feet long and fairly full of equipment with limited working space. Jones would have had to learn the telecommunication field and perform the functions of her job in the phone room. In early 1996, Jones had asked that her desk be moved to that room because she would be more efficient in doing her mailroom functions first in the morning and then do her telecommunications work. He was aware that Jones was learning through experience although making mistakes, but that was expected. He understood everything was working fine. However, by March 1996, Jones was not fully trained in her new position, nor capable of filling in for Knott. He believed she had attended some courses: not a lot of courses or seminars, but there was some. Also, he was aware that she had visited a telecommunication vendor.

49Millar states that he was not aware of any allegation that Knott was harassing Jones since November 1995. Nor was he aware that there were problems between them until March 21, 1996, when Jones made a complaint. He made notes of their meetings at the same time (see Exhibit 38). Jones told him she did not like her job anymore. Essentially, his evidence of this meeting with Jones is consistent with his notes, Klopper's evidence and substantially Jones' evidence. In sum, Jones complained to him about Knott's sullenness. When she spoke to him he replied, "well if you can't do the job". She related the issue of overtime — offering overtime when there was no work because she needed the money and refusing to give her overtime because he felt she was too tired; Knott offering to arrange for the two of them to attend a conference in California; his complaining about his pain; his quietness the previous Saturday when they worked together; Knott booking off the same Fridays as she and other staff questioning it; that he always said "I" as if personally he was doing things for her; and about Knott taking the train, instead of travelling by a rented car, when they went to Toronto to a seminar.

50Concerning the issue of Knott taking Fridays off, Jones had referred to a particular Friday. Millar states that he had explained to Jones that Knott was not feeling well. Once Knott had scheduled work, regardless of how he felt, he would do it. She remarked, if Knott is not well, he should not come to work. Millar says he approved all "time-off". Knott booked Fridays off regularly. He would often take Friday off if he decided to work on Saturday or Sunday. He was not entitled to overtime. Jones was granted Fridays off because there was no one there to train or give her guidance. Therefore, if they took separate days off, there would be an eight-hour loss of training or knowledge transfer. From a business perspective, Monday was their busiest: Friday was the slowest, so it was the best day to be off. Jones asked Millar why did she and Knott have to attend the conference in Toronto together. She said she could have gone a different week. Millar states that similarly, by both attending the conference together in Toronto meant there would not be a loss of training opportunity for Jones. She said Knott told her he took the train because she decided to take the train.

51Millar states that he asked Jones if Knott had ever suggested anything. She said no: nothing directly had ever been said, but she felt totally uncomfortable in the working environment. She said she would not go back to the phone room to work. She asked him what he wanted her to do that day. She said if she had to, she would take the afternoon off without pay. She said she was off the next day. He told Jones he would pay her for the rest of the day and that he would talk to Human Resources and they would look into the matter. She ended by stating that she would quit before she would ever go back to the phone room to work. He told her that timing was good to discuss it then because they were considering a four-to-six-hour per day job in the mailroom to replace her. Maybe they could do something with that, but he could not make any promises.

52He met with Flynn and Klopper and informed them of the meeting he had with Jones. He requested that an investigation be done and arranged for Klopper to see Jones on the Monday morning. On March 25, 1996, after a meeting with Knott, he and Klopper met with Jones to review their findings and to move forward with the business of operating the company. He took rough notes during the meeting and then wrote them out in full (see Exhibit 39). During the meeting they told Jones that they had done an investigation and concluded that nothing improper had occurred. Knott had not acted improperly. They told her that when Knott said "I" he means "Amway" because he feels that he is representing the company. He told Jones "[w]e have a few options ...". The first was to go back to her current job. Knott would be sensitive to her reaction to "I" and will say "Amway" where appropriate, and he would avoid engaging her in personal conversations. The second was to go to regular part-time in the mailroom, her old position as Mail Clerk II. She would work a six-hour per day — a five-day week, she would not be entitled to benefits, and she would still report to Knott. The third option was hers: to quit. They pointed out to Jones that quitting is an option for any employee at anytime, but they did not want her to quit. They told her that they did not want her to answer right then: to go home and talk it over with her friends and family and let Millar know the next morning. Millar states: "You don't want an employee to make a decision on an employment position without taking time to think about it and discussing it with family". They simply wanted Jones to take time to think about it. They preferred that she took the first option. That would have allowed them to continue their investment in her and to build support for their business needs.

53On March 26, 1996, about 07:10, Jones left a message on his voice mail stating that she wanted a vacation day because she wanted to see her lawyer and would contact him later. Around 16:00, Jones left a second message stating that she would be in to work the next day and wanted to see him. According to company's policy, if a day off is not pre-approved, the employee must call in before 07:10. If the request were not approved, the employee would still have ample time to get to work. Even though Jones' request was by voice mail, he was content with it because there was nothing pressing that day. Normally, Jones would have had to ask Knott for the day off.

54On March 27, 1996, he met with Jones. The same day he made notes of the meeting. First, Jones gave him one of Knott's business cards. On it were Amway's switch remote access number and her pass code. She said Knott told her to use it for personal long distance calls. Based on Jones' comments, he knew that she meant to imply that Knott had given her the code to use to make personal long distance calls. An employee could not use the special number to make personal calls. So he took the card and did not respond. Second, Jones said she had "conditions" for doing the job until she went on maternity leave. She wanted to go back to working four hours in the mailroom and four hours in the phone room. She wanted her desk moved out of the phone room and back to the mailroom that was located in the warehouse. The phone room was in the office area. He asked her whose idea was it to move into the phone room in the first place. Jones said it was hers, but that was when she trusted Knott.

55Millar states that he asked Jones if her conditions referred to the Mail Clerk II/Telecom position. She said yes. Jones continued, she would do "voice stuff" which she knew how to do — "moves, adds, changes, logging of changes, wiring etc." that way Knott would not have to watch her work (see Exhibit 40, p. 1). Knott could send her any instructions by cc:mail. She could work independently or call him when he needed any help. Jones told him to install "ProComm" on her computer and then she would be able to do work without being in the phone room. He digresses to explain that ProComm is a software package that allows remote access to the telephone switch. It was costly and less productive than speaking live because it needs a communication link. That switch console and the voice-message system were located in the phone room. He states that Jones said she did not want any "data" until after maternity leave and no overtime, evenings or weekends: and if she had to, she would get a doctor's note. He asked her if the request for no overtime was because of medical reasons. She paused and then replied, "well, it is what would probably be best for me" (Exhibit 40). Overtime was in excess of forty hours in a week period, which included Sunday and Saturday. Because of the nature of the job, lots of changes had to be done when business was not operating. There was a restriction on Saturday because the Order Entry department worked on Saturdays from 09:00 to 17:00.

56Millar states that Jones told him that the advice of her lawyer, Paul Brooks of Lerner & Associates, was to go back to the Telecom job or at least the regular part-time job that would mean the "most money for her". Jones said Knott had advised her to study the books because he said it was the best way to learn. She could do that away from the phone room. She told him to send her to classes. Then she asked if Flynn knew about the matter and he replied yes. Jones asked him whether Flynn's signature would be on the notes that would be placed in her file. He replied that he did not know what notes would be placed in her file or whether Flynn would sign any of them. Then Jones said she wanted "the file in case we [were] trying to railroad her out of here" or in case she started getting bad reviews, or in case "this ever happens again" (see Exhibit 40). He told her he did not know whether she could get a copy of the file, but he would ask. He told her she could see her file under supervision.

57Millar told Jones to put her conditions in writing and then they would discuss them. He said she could send it by cc:mail or just write it out. He told her she could go to the mailroom and work there. Jones replied, "fine, [I] would go and do that". In the interim, Jones left a document on his chair. About 15:30, he met with her and asked her to sign the document otherwise he would have no idea who sent it. He pointed out that the paper stated "proposal", but did not indicate to which job it related. Jones agreed to make the changes and return it to him. About 16:20, he called Jones and asked her if she had the document ready. She said she wanted to review it with her lawyer and would give it to him in the morning. On March 28, 1996, Jones gave it to him, revised and signed. He asked Human Resources to put in her file. That document is reproduced verbatim below.

PROPOSAL: Thursday MARCH 28, 1996 } To be sent to Paul Brooks Office

I will continue working in my position as Mail clerk II/ Telecommunication Assistant.

I suggest the following in order to provide an appropriate workplace environment.

I suggest that my desk be moved out of the phoneroom and into the mailroom (open office area)

I suggest that the ”˜Phone System' computer program, and the Voice-Tel Computer Program be installed on my computer.

I suggest that I work as independently as possible on the following duties: (immediately notifying the Supervisor of Office Services/Telecommunications if any problems/concerns).

1. Maintain and administer the Company telephone system including: the addition of new voice terminals, changes to voice terminals and features (add users, remove, change, wire, etc.

2. Wire the new Local Area Network Stations

3. Maintain records of all voice terminals and features; request and coordinate with the Maintenance Department for new wire runs that are required, and install jacks accordingly, make necessary cross connections in the telephone room to connect voice terminals and /or modems, to the appropriate hardware in the telephone system.

4. Distribute daily phone reports to appropriate supervisors.

5. Order supplies needed for the telecommunication area.

6. Maintain and administer the Company Voice mail system including the addition of new users, changing user parameters, and troubleshooting user problems, remedy voice system problems which may involve contact with Voice-tel.

All duties described in job description and labelled as #4 - # 29. (All mailroom duties — Mail Clerk II).

I suggest that cc:Mail and/or Voice-Tel be used as much as possible as a means of communication between myself and the Supervisor Office Service/Telecommunications.

I will contact Supervisor Office Services/Telecommunications whenever necessary to complete these tasks.

I will provide any back-up that I can, in the absence of Supervisor Office Services/Telecommunications.

Duties that have not been mentioned in the above, I suggest being trained in as much as possible in a classroom situation. I have spoken to Jeff Millar (Manager) regarding concerns over needing courses to learn more about Phone System Maintenance, especially with Hunt Groups, Vectors and Vector Directory Numbers. This might make an appropriate suggestion for course/classroom learning situation.

These are my suggestions, however, if necessary I will continue to work under present conditions

Kate Jones

58Millar states that on March 28, 1996, about 16:20, he and Klopper met with Jones. He told her that they needed to move forward. He told her she was procrastinating and attempting to dictate working conditions to them, and that was unacceptable. Jones denied she was procrastinating. She said she had gone to the mailroom as he had told her to do and had been waiting. She denied saying "conditions". She said her lawyer had told her not to say "conditions", but could say suggestions or proposals. He told Jones they were not dealing with a lawyer or third party, they were dealing with her. He says that comment was made to point out to Jones that at that time, they were referring to their conversation and her lawyer was external to that conversation. He told Jones that regardless of the term she used, the terms she proffered were unacceptable because they did not improve the productivity or functionality of the job. In fact, they actually reduced productivity and functionality of the job. He told Jones that if she felt the need, the overtime issue could be dealt with, but she needed to get a note from her doctor. Klopper stated that the note would have to state that Jones could not work over forty hours in a week.

59Millar told Jones that they had done further investigation about the work in the mailroom and decided that there was no need for anyone there. That was because the company had become more automated. He says that without discussing it, he had initially thought that without Jones in the mailroom, there would be enough work to require a part-time position and someone to replace Jones. Upon further investigation, it was determined that a replacement was not necessary. The only option was her regular job as it was with the knowledge that Knott would avoid personal conversations with her, and where appropriate, he would say "Amway" instead of "I". Because she had stated clearly that she would not return to the phone room, if she decided to return to her regular job, he wanted her to tell him what plans she had to make it work. He told Jones he needed an answer by noon the next day. Jones informed him that she was off on vacation the next day, but she would call him. Jones had informed him that she had an ultrasound the following morning. He asked her to call him via the switchboard, have him paged, but do not leave a message. Jones asked him what would happen if she could not get an answer to him by noon or get in touch with him. He replied that he wanted to hear from her by noon, but will expect to see her on the Monday at 08:00 in the Telecom job or he would assume that she resigned as she had stated that she would do. Jones agreed.

60On March 29, 1996, around 10:47, the switchboard paged him. He was not at his desk. He asked the receptionist if Jones was the caller and she said yes. He asked her to put the call through to his desk. Jones said: "I'm calling regarding our conversation on March 28 and wanted to let you know that I will be in to work on Monday". He said to her that was okay and good. She added: "Paul [Brooks] wanted to know whether you wanted what [you] asked me for in writing or not".² He said "no, as we told you yesterday that it didn't need to be in writing, I just need to know that since you said you wouldn't ever go back in there again and your suggestions as you call them, were unacceptable, how are you going to make this work?" Jones replied, "just knowing that there won't be any harassment" (see Exhibit 42, p. 1). He called Jones back at 11:00 and told her he needed to clarify what she said about how she could make things work. She replied: "I just want to come back to work where I know that there won't be any harassment". Millar replied, "Kate, just so you are clear, our investigation showed that there wasn't any harassment, just so that you are clear on our position, okay?". She answered yes. He testifies that [by] the end of the conversation that day he felt the issue was resolved, from Jones' perspective and to Amway's satisfaction. She returned to work the next Monday as agreed. To his knowledge, there was no complaint from her during the three weeks she had returned to work.

61Millar testifies that Jones was a "very important employee". He was "glad" she returned to work and to her previous position as Mail Clerk II/Telecommunication. They were reviewing that position with the intention of upgrading it to full-time and were looking forward to moving Jones into that important area. He testifies that at no time did they consider terminating Jones' employment. Nor had they considered punishing her for complaining about her supervisor, or considered making her an example to other employees for complaining about her supervisor. Jones did not lose any benefits or pay.

The Vendor Visit

62Millar states that Amway was in the process of reviewing its carrier for its telecommunication needs. It was considering Unitel and Sprint. Knott and Jones had done a site visit with one vendor. A meeting was scheduled with the other vendor. He believes that twice the visit was cancelled because of bad weather and for some other reason. The next scheduled date was April 10, 1996. He understands that about April 4 or 5 Jones told Knott that she did not think she should attend the site visit. His recollection is that Jones did not attend the site visit: nor did she explain why she did not go. Jones did not speak to him about her decision not to attend the vendor's visit. He did not discuss with Jones her failure to attend the visit, nor did he direct her to go. He recalls thinking that Jones was being selective in taking part in the functions and duties of her job.

63Millar testifies that the purpose of Jones attending the visit was to allow her to participate in the vendor analysis process; to facilitate her ongoing training and learning experience; and to allow her to offer opinions on the differences she recognized among the providers. He was concerned because telecommunication is a very significant part of Amway's business. He emphasizes that Amway's business depends on its telecommunications system for the placement of orders and IBO's signing up others for business. There is heavy reliance on the efficiency of that service. Also, the cost of the company telephone system is very significant.

The April 17, 1996, Memorandum and the Termination

64On April 17, 1996, Millar returned to his office and found a memo dated April 17, 1996, from Jones on his chair. He read it and concluded that it was "a self-serving memo that [contained] inaccuracies". In his view, it was a partial account of what happened in March. It did not contain an account of the "closure that was agreed to by the parties relating to that time period". The memo did not raise any new issues or contained any that Amway had not addressed. Millar did not wish to respond for fear that it would result in correspondence back and forth trying to outline exactly all that had taken place and where it had taken them. He interpreted it as undoing what had been agreed to and what closure had done. He did not speak to Jones about the memo. He did not reply to the memo either.

65He had a meeting with Flynn. They reviewed the last two events — Jones' failure to attend the vendor visit, which was a refusal to perform a job function, and the memo. They believed Amway had made reasonable efforts to facilitate mending the working relations with Jones. He emphasizes that "all the parties must participate to make it work". It did not appear to them that Jones wanted to continue in her role. After consulting with their legal counsel, they concluded that it was best for all the parties to terminate their relations. He states that Knott did not take part in the discussion or the decision to terminate Jones. He and Flynn told Knott that they had decided to terminate Jones' employment, and consistent with Amway's policy, as the supervisor, he was required to do the exit meeting. The decision to terminate Jones was in the best interest of the corporation.

66Millar testifies that no one filled Jones' position until December 1996. In the interim, they evaluated the business needs to determine how they would meet those needs and move forward. They created a new position called "Telecommunications/PC Specialist Assistant". It required someone with education and background experience in both fields. Meanwhile, Knott continued as he did in the past, doing all the tasks himself.

FINDINGS OF FACT AND LAW

67The only issue before the Board is whether Amway and Knott terminated Jones' employment because she complained to Amway's Human Resources Department that Knott sexually harassed her. During the hearing on the merits, the Board heard evidence from Jones, Klopper and Millar. In this case, the Board balances the conflicting evidence of these witnesses. There are few inconsistencies in the evidence before the Board. Where there are no inconsistencies, the Board has made findings of fact on the overall evidence without attributing any of it to any particular witness. Where there are relevant inconsistencies, the Board has stated the inconsistencies, their scope and its decision on the inconsistencies. More specifically, the Board observed, in giving direct evidence, generally, Jones was clear. However, during cross-examination she was not forthright and had a tendency to be selective in her recollection of many aspects of her meetings with Millar and Klopper, and in some instances, she wavered from her direct evidence. Jones testifies that she composed her notes of the March 1996 events around March 29, 1996. Although that may be relatively close to the events, they are reconstructed records of recollection and not contemporaneous notes of her meetings with Klopper and Millar or of Amway's investigation. The Commission and Jones entered those notes as an exhibit. Jones relied on her notes to buttress her evidence.

68The Board found Klopper to be a credible witness who, during her direct evidence and cross-examination, gave evidence forthrightly and without currying favour for either Jones or Amway. Klopper testifies that she made contemporaneous notes of the events of March 1996. Those notes buttressed her evidence at the hearing.

69The Board found Millar to be a credible witness in giving direct evidence and during cross-examination. He appeared to respond to questions frankly and clearly without wavering from his direct evidence. Millar testifies that his notes were made contemporaneous with the events of March 1996. Those notes supported his evidence at the hearing. The respondents' counsel introduced the notes of Klopper and Millar as exhibits.

70Given the time that has elapsed since Jones' complaint to Amway and this hearing, the Board finds that the notes of Klopper and Millar lend credibility to their evidence because they were contemporaneous records made at the time of the events. Based on those reasons, where there are any inconsistencies in the evidence concerning Amway's investigation into Jones' initial complaint, the Board prefers the evidence of Klopper and Millar insofar as their notes can support their evidence. Any issue of credibility is determined on the Faryna test (see Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)). These are the reasons that govern the Board's findings of fact and law on the evidence of Jones, Klopper and Millar.

71The decision whether Amway's termination of Jones was an act of reprisal is based on three factors: (a) the sufficiency of the investigation of the complaint; (b) whether the corporation intended to retaliate against Jones because she made a sexual harassment complaint; and (c) whether retaliation was a factor in the decision to dismiss or in the act of dismissing her. In addition, there are several sub-issues, including whether it was reasonable for the parties to believe that there was a resolution and it was pragmatic, and whether the actions of any of the parties after the resolution breached it or interrupted the chain of events. These issues are dealt with below, seriatim.

Adequacy of the Investigation

72The adequacy of an employer's investigation into a complaint of discrimination, particularly one as serious as sexual harassment, is crucial in determining whether a decision to terminate is reprisal, or is tainted by reprisal (see Bryan v. Premark Canada Inc. (No. 2) [1998] O.H.R.B.I.D. No. 18 (QL), No. 98-018 [C.H.R.R. NP/98-207]).³ Sufficiency is determined on a reasonableness standard. Thus, before deciding whether Jones was the victim of reprisal it is necessary to consider whether Amway sufficiently investigated her complaint. In addition, the sufficiency of the investigation is important in determining whether Amway's response to Jones' complaint was so unreasonable that there was no basis for it to believe that the matter was resolved to the satisfaction of all the parties. Or alternatively, whether it was unreasonable for Amway to expect Jones to accept that the matter had been resolved satisfactorily. Also, it is essential in establishing whether at all times the employer acted in good faith. The Board is mindful of the potential imbalance in the bargaining power between Amway and Jones. However, any imbalance was tempered by the fact that Jones had independent legal advice. Notably, the Board's determination is independent of the Commission's finding that there was insufficient evidence to warrant the referral of the allegation of sexual harassment, among other things, to it.

73The sufficiency of Amway's investigation was an important factor in the Commission's case and Jones' evidence on the merits during the hearing. The Commission urges the Board to find, among other things, that Amway's termination of Jones' employment was an act of reprisal. It submits that Amway did not investigate Jones' complaint properly and as a result, the working relations with her supervisors were damaged. Jones adopts the Commission's position.

74To determine the sufficiency of Amway's response to the complaint, the Board adopts the six elements of the reasonableness test suggested in Canadian Human Rights decisions. The reasonableness test has been applied to determine quantum of damages, as well as corporate liability in allegations of discrimination (see Moffatt, supra; Wall v. University of Waterloo(1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd.Inq.) adopting Canada (Treasury Board) v. Robichaud, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326). Briefly, the six elements are that an employer must demonstrate that: (a) it is aware that sexual harassment is prohibited conduct; (b) a complaint mechanism is in place; (c) it acted with alacrity in handling the complaint; (d) it dealt with the matter seriously; (e) it has met its obligation to provide a healthy work environment; and (f) it met its obligation to inform the complainant of its response. If an employer fails any of the six elements it necessarily fails the test.

(a) Was Amway aware that sexual harassment is prohibited conduct?

75The uncontradicted evidence is that Amway implemented a Harassment-free Workplace Policy in March 1995 ("Policy") (see Exhibit 35). Concomitantly, Amway appointed a delegate to implement its Policy and to handle human rights issues. The Board is satisfied that the steps management took to edify all of its employees about the Policy and that sexual harassment is prohibited conduct were appropriate. The Board notes that neither the Commission nor Jones criticizes the Policy.

76There is no evidence that Jones did not receive a copy of the Policy, or that she did not read or understand it. Yet, the Commission criticizes Klopper for not giving Jones a copy of it or walking her through it. The Board finds that criticism is not only groundless, it is not crucial to the element of awareness given the relatively short time between its implementation and the complaint and the extent to which Amway went to ensure that all employees were educated about the Policy. Further, the Board concludes that based on the assertiveness and conduct of Jones, at all times she was aware of Amway's Policy, and knew that she could have lodged a complaint to the Commission or seek independent legal advice, as she did, if she was not satisfied with Amway's handling of her complaint. In sum, the Board finds that by creating, implementing and educating its employees about the Policy and relying on a competent supervisor to implement it, Amway has met the awareness element.

(b) Did Amway have an adequate complaint mechanism in place?

77The Commission submits that Jones followed the procedures implemented by the Policy. The Commission criticizes Amway for not following its own procedures and for not using Jones' memo of April 17, 1996, as a springboard to commence a formal complaint. Jones adopts that position. The Board has found that Amway had a sexual harassment Policy. The Policy sets out the procedure to be followed in the event of a complaint. It clearly informs an employee of the right to file a complaint with the Commission. The Board finds that the Policy is adequate, and that it is a first step in establishing that it has an adequate complaint system in place. The next step is that Amway must demonstrate that it had adequate resources to achieve its purpose and how it used those resources to respond to the complaint.

78On March 21, 1996, about 10:47, Jones complained to Millar about Knott. He assured her that he would inform Human Resources and they would look into the matter. The same day, Millar informed Flynn and Klopper, (the Harassment Officer, if you will), and directed that an investigation into the complaint be done immediately. Jones was visibly upset and Millar permitted her to take the rest of the day off with pay. She had a prearranged vacation day on the Friday. By 09:00 Monday, March 25, Klopper had invited Jones to meet with her concerning her complaint. Klopper invited her to call or page her at any time if she recalled any more information. By the end of that day Klopper and Millar had interviewed Jones and Knott. Jones testifies that she had no concerns about either Millar or Klopper when she initially made her complaint. The Board finds that Amway had an adequate complaint procedure at the time of Jones' complaint. Further, the Board is satisfied that Klopper and Millar followed Amway's complaint procedure and that they were fair and sensitive in their dealings with Jones.

(c) Did Amway act expeditiously in investigating Jones' complaint?

79The evidence is that on April 30, 1996, when Jones first lodged her complaint to the Commission, she alleged that Knott had sexually harassed her since November 1995. More specifically, the Commission's intake note on the said date, a document entered as an exhibit by the Commission, and adopted by Jones, indicates, "[n]ew job Nov/95 — has been harassed by supervisor since then ... [the] company investigated [the sexual harassment] complaint — harasser denied — company gave her options of going part time or leaving. She gave them suggestions for resolving problem ... the company would not comply" (Exhibit 32). Also, Jones' evidence is that prior to March 21, 1996, she had complained to Amway about Knott. Millar and Klopper testify that the first knowledge that the working relations between Knott and Jones had soured was her March 21, 1996, complaint. In cross-examination, when she was confronted about those statements, she was vague. She avers that there had been one previous incident, but conceded that she might not have complained to anyone.

80The evidence is, Jones told Klopper that she was afraid Knott would have "freaked out" if he knew she had made a complainant. Jones did not elucidate what she mean[t] by the term "freaked out". The Board accepts the evidence that Jones admitted that she was not afraid of Knott, nor did she feel that she was in danger of any kind if she returned to the phone room. Based on the evidence and Jones' actions, the Board concludes that she was not fearful in bringing her complaint to Amway's attention. In addition, the Board makes three conclusions: (a) Jones' primary complaint to Amway was on March 21, 1996; (b) there was no delay by Jones in bringing the complaint to Amway's attention; and (c) Jones did not demonstrate any fear or timidness in bringing her complaint to Amway.

81As noted above, the same day Jones lodged her complaint to Millar, he directed the Harassment Officer to investigate the complaint. Jones' next day at work was Monday. By 09:00 Monday, March 25, Klopper had invited Jones to meet with her. By the end of that day Klopper and Millar had interviewed Jones and Knott. During the period of investigation, which took one week, there was continual communication among Jones, Klopper and Millar. A resolution was achieved within that period. More specifically, the resolution was that Jones agreed to resume her job with three modifications, viz.: (i) she was exempted from overtime; (ii) Knott was to refrain from engaging her in personal conversations and would say "Amway" instead of "I" where appropriate; and (iii) Knott would continue to be Jones' supervisor (for easy reference, hereafter, the "Agreement"). It is clear that Jones accepted the Agreement after several meetings with management and consultations with her lawyer. Thus, the Board finds that Amway has satisfied the reasonableness element of promptness. Investigating the complaint and reaching the Agreement in one week was expeditious. It is obvious to the Board that Jones does not like the Agreement she struck with Amway, but that is immaterial to the Board's determination whether Amway met this branch of the test.

(d) Did Amway treat Jones' complaint seriously?

82A summary of Jones' complaint is helpful. Succinctly, according to Jones' evidence, Knott had a morose mannerism. She spoke to him about it, but the conversation ended in a counter criticism. He over-supervised her and engaged her in non-work-related chat. He conferred preferential treatment on her because he liked her; he withheld certain benefits from her to control her; and he was using his supervisory position to elicit favours from her. He was mildly suggestive, but showed no strong unseemly behaviour or used any sexually harassing epithet to her. Knott had not touched her inappropriately, nor had he never [sic] threatened her or her job. She was not afraid of him or believed she was in any danger going back to work in the phone room, but she felt uncomfortable working there. Knott began to book off the same Fridays as she. Certain employees had asked why both were absent at the same time (there was no evidence that Knott tried to contact her, met her by happenstance, or arranged to see her on those days). Jones had no first-hand knowledge that anyone else had a similar experience. She had no knowledge that anyone else had first-hand knowledge of what was going on. Amway could not do anything to repair the situation because she no longer trusted Knott. Therefore, she would rather quit than return to work in the phone room.

83In assessing this element of the test, it is necessary to view the salient parts of Jones' complaint in juxtaposition with management's knowledge and actions. Management knew that Jones was an above average employee. It believed that Knott and Jones had good working and personal relations. Knott had supervised Jones for about three years and there were no complaints from Jones about him. Klopper's evidence is that when she enquired about that, Jones replied that she and Knott had not worked so close before. She offered no other reason why then she found his managerial style objectionable. The first time management became aware that Jones had issues with Knott was her complaint of March 21, 1996. Klopper's evidence is that Jones did not use the term "harassment" in her complaint, and that it was not clear from the content of her complaint that she was complaining about sexual harassment. However, certain of her comments raised a flag that her investigation should follow that path to determine if her complaint was a case of sexual harassment. Throughout her investigation, she not only turned her mind to sexual harassment, but other human rights issues. The Board accepts Klopper's evidence.

84The Commission submits that "[t]he complainant indicated that there were other women around that mentioned that Mr. Knott had bothered them. None of these people were questioned by Amway". Therefore, the Commission submits that the investigation was inadequate because Klopper failed to interview the other six women who[m] Knott supervised at the time. There is no evidence before the Board supporting that submission. There is evidence to refute it. Jones stated that she did not know of any other person who had complained of a similar experience or who knew what Jones alleged had happened. Based on the evidence before it, the Board is not inclined to conclude that the failure to interview those women is an indicium that Amway did not take the complaint seriously, or failed to investigate the complaint adequately. The Board is inclined to conclude, however, that Klopper exercised prudence by circumscribing the investigation to Knott and Jones. It is a well-known fact that sexual harassment, if it occurs, usually takes place where there are no witnesses (see Graesser v. Porto(1983), 1983 CanLII 4717 (ON HRT), 4 C.H.R.R. D/1569 (Ont. Bd.Inq.)). Expanding the interview in these circumstances could have engendered negative and unfounded gossip about Jones or Knott or both, which ultimately could have resulted in more harm than good. It could have fractured the working relations and environment of the whole department. In addition, the Board finds that the investigation was sufficient given the nature, scope, content and context of the complaint. On the balance, the Board concludes that the complaint did not warrant a Bannister-style investigation to determine that management took the complaint seriously. The investigation must be commensurate with the nature and content of the complaint. The employer must show that the extent and scope of its investigation was sufficient for the nature and content of the complaint. The Board finds, based on all the evidence before it, management treated Jones' complaint seriously and demonstrated sensitivity and fairness.

85In addition, the Board concludes that Amway's serious approach to Jones' complaint is evinced by its post-investigative response. On the evidence, the Board is convinced that after management concluded that there was no harassment, it recognized that a rift would be an attendant problem in the working relations between Jones and Knott: it then turned its attention to determine whether the working relations between them were repairable. Implicitly, management believed the working relations could be repaired and that it was working towards that end when it achieved the Agreement with Jones. The Board finds that Amway participated aptly by controlling and isolating the matter as a way to facilitate repairing the working relations between Jones and Knott. The Board is inclined to conclude that the sensitivity and compassion demonstrated by Millar when he allowed Jones the rest of the day off because she was upset, and when he approved a vacation-day so that she could have consulted with her lawyer, show how serious management felt about and dealt with Jones' complaint. Jones had said several times that there was no longer any trust between she and Knott, and that management could not do anything to rectify the problem. She had said umpteen times that she would quit. Yet, management urged her not to quit. It encouraged her and gave her more than ample time to give more thought to the matter. Management asked for her suggestions towards repairing the working relations. The Board finds that Amway not only took the complaint seriously, its investigation was done promptly, with demonstrable sensitivity and went to great lengths to accommodate and facilitate repairing the working relations between Jones and Knott.

(e) Did Amway provide a healthy work environment?

86It is apt to note that Jones was quite clear at the onset of her complaint to Millar that she wished to have no direct contact with Knott. She had stressed several times that management could not do anything to rectify the situation. Her preference was to quit. Later, she softened her position and said she would have contact with Knott only if it was necessary. After she had consulted legal counsel about her predicament, she had modified her position again and was "prepared" to resume her job "under the present conditions" if necessary. By inference, Jones' decision not to quit was predicated upon her counsel's advice that the worse thing she could do was quit.

87Two of Jones' criticisms about the way in which management handled the investigation are relevant to this arm of the test and perhaps to the "seriousness branch" as well. The Board deems it necessary to deal with each criticism separately, even though it requires a lengthy analysis, to determine their merits. Essentially, they are: (1) at the initial stage of her complaint, management did not give her any direction where to work; and (2) that management was not receptive to her "proposals" "to alleviate her concerns about harassment" (see Exhibit 8).

(1) MANAGEMENT DID NOT GIVE HER ANY DIRECTIONS ON WHERE TO WORK

88Jones testifies that during the investigation she was not given any instructions where to work and did not know what to do. Jones testifies that only after asking Millar in their meeting on March 27, 1996, did he give her permission to work in the mailroom. Klopper states that she instructed Jones to go back to the mailroom to work after their meeting on March 25, 1996. Jones was in the mailroom before their meeting. She was absent on March 26, 1996. Millar states that after their meeting on March 27, 1996, he instructed her to return to the mailroom. At that point, management had informed Jones that it had investigated her complaint and had found that there was no harassment. Jones was not fearful of Knott or had concerns for her safety. And there is no evidence before the Board that she was directed not to work in the mailroom. The fact is, during the investigation Jones worked in the mailroom and continued working there until she achieved the Agreement. The Board finds that Amway did give Jones instructions where to work and permitted her to work in an environment she felt was comfortable for her, even though it was not the permanent solution. It was clear that the investigation was ongoing and management would seek further input from Jones before it took a final decision. Apart from Jones' vague claim that her work had been reduced, there is no evidence before the Board that management covertly or overtly withdrew its support from Jones' employment growth or that management's actions caused Jones to feel marginalized or isolated at work. The Board is not convinced Jones' proposal to work in the mailroom was motivated by safety concerns. The Board finds no merit to this criticism.

(2) MANAGEMENT WAS NOT RECEPTIVE TO HER "PROPOSALS" TO "ALLEVIATE HER CONCERNS ABOUT HARASSMENT"

89On Monday, March 27, 1996, after management had informed Jones of its findings, she met with Millar and presented him with a "proposal". The first written proposal made several specific demands. Among other things, Jones wanted: (i) four hours in the mailroom and four hours in the phone room; (ii) the relocation of her desk from the phone room to the mailroom; (iii) no overtime; and (iv), that communication with Knott, including supervision only to tell her "what jobs needed to be done", could be done by cc:mail. First, the Board observes that Jones' revised proposal dated March 28, 1996, excludes the demand for equal time in the mailroom and phone room. Jones testifies that her lawyer had instructed her to take the job that would result in the "most money" for her. Second, as noted earlier, Jones modified her demands concerning the extent of her communication with her supervisor, Knott. The Board accept[s] Klopper's evidence that Jones told her she was at the stage where she could do things on her own. Implicitly, she wanted no direct supervision from Knott. Third, the Board accepts Millar's unchallenged evidence is [sic] that it was necessary for Jones to work from the phone room to do her job effectively. Notably, the Board has found that there were no safety reasons for the demand to move her desk to the mailroom. On the evidence, the Board is not convinced that this demand was to alleviate her concerns about harassment.

90Regarding Jones' demands to be exempted from overtime or weekends until after maternity leave, the Board notes that overtime was a poignant issue in her complaint about Knott. The evidence is that Jones knew that overtime and weekend work were requirements of her job. At an early stage of her complaint, she had said she did not feel safe working when many people were not around. Jones made no mention of that later on. On the one hand, he was offering her overtime when there was no work because he felt she needed the money. On the other hand, he was refusing to give her overtime because she was pregnant or too tired. Jones' evidence is, she did not tell Knott she needed the money or that she was too tired. E-mail exchanges between Jones and Knott engender questions about Jones' sincerity about her reasons to be exempt from overtime.

91On March 18, 1996, Jones e-mailed Knott and said "[t]he next time I work overtime I need to bank a few hours. I will let you know how many [hours] I need. It's for Freddie's doctor's appt. [sic] April 15 3:40 pm.". Knott replied: "[y]ou still have ¾ of an our [sic] on the timesheet. If you wanted, you could come in a bit early some days or stay a bit late to make up time. Don't think I will have you come in on anymore weekend overtime as it seems to be getting too tiring for you". On March 20 Jones wrote: "Art, [s]poke with Marty, seems to work o.k. now. Gave him a new connection ... Any idea why it was connected?". Knott replied (Exhibit 7, pp. 3 and 5):

Thanks Kate ... You accomplished a lot today, appreciate it. I mentioned the other day that did [sic] not want to ask you to work anymore weekend overtime as I am concerned about your health being pregnant, and feel perhaps it is too tiring for you. If you feel different i.e. that you can work some, let me know. Could use the help to make the changes at Bradley with the new controller there, and also with the installation of the new controller here sometime in the next few weeks. The one here is going to mean a lot of changes — may have to make some longer cables from ”˜K' block to controller etc. Wiring has become a mess to the controllers so may want to look at how we can clean it up a bit — hard to trace some lines now as I am sure you are aware — may have to use some wiring rings to run them through. If you disagree with me, and feel that you can take some of this overtime and the physical end is not going to be too hard on you, let me know, so we can schedule when we will do this. If you want to work, then we may put in a couple extra hours one day next week and replace the controller at Bradley. We may want to go over there tomorrow afternoon so you can write down the SDLC configuration i.e. host address etc. and you can try to configure the new one on Monday. Let me know. Thanks. Art.

A reasonable inference is, Jones requested overtime because she had personal matters that required time away from work. Knott was refusing to grant overtime because he was concerned about Jones' well-being. Knott partially yielded and asked for her opinion. The Board observes that Jones' complaint about Knott was the day after that last e-mail exchange.

92The evidence is that on March 28, Jones demanded the exemption from overtime, evenings and weekends until after maternity leave. When asked if the "no overtime" was due to medical reasons, she replied, that probably would be best for her and that if she had to, she would get a doctor's note. Millar advised her if that was a concern, she should get a medical note. As noted above, Klopper advised Jones that the note had to state that she was unable to work for more than a forty-hour week. It is a curious phenomenon that on April 1, 1996, Dr. Hammond's note in support of Jones' exemption from overtime states: "Mrs. Jones is now pregnant. She is finding it very difficult to work more than 40 hours per week. Therefore, I feel that she should not be required to work over 40 hours" (see Exhibit 37). Notably, the very reason Dr. Hammond gave for Jones' inability to work overtime, was the same given by Knott, Jones' supervisor, who knew the physical demands of her job and was in a position to observe her at work. Management made the concession to relieve her of weekend overtime until after her maternity leave. In all the circumstances, the Board is not persuaded that Jones' concerns about overtime and her requests to be exempted from overtime were motivated by safety concerns. The Board finds that the excuse was a mere pretext.

93Finally, the Board has considered Jones' proposals in juxtaposition with the evidence, specifically the job description at Exhibit 4 and Millar's description of the job. In the Board's view, essentially, Jones rewrote her job description. The Board finds that, based on the evidence, there is no valid or rational reason for Jones' demands. Further, the Board finds, based on Jones' lack of formal education and training, the degree of technicality, and Jones' short time (four months) in the job, she was not ready to work without supervision. In addition, the Board finds that Jones' demands were not conducive to the function and productivity of her job. Moreover, neither Jones' oral evidence nor her notes of the meeting of March 27 with Millar buttress her statement that the proposals were to address her concerns about harassment. In Jones' words, the proposal was to "make things work out" (see Exhibit 7), that is, to facilitate repairing the working relations. The Board notes that the first time Jones indicated that her "proposals" were to alleviate her concerns about "harassment" was in her April 17, 1996, memo. The Board finds it more probable that Jones did not advise Millar that her proposals were to alleviate her concerns about harassment. On the evidence, the Board finds that this criticism is without merit and without substance.

94At the initial stage of the investigation, the evidence is that Jones had asked Klopper about a transfer to another department. There is no evidence that Jones or management pursued that as a serious option. Notably, the Code protects Jones from retaliatory dismissal regardless of how misguided her complaint might have been (see Bryan, supra). However, s. 8 of the Code is not intended to be used as a sword, but a shield. In the Board's view, once management had conducted its investigation and found that the complaint had no merit, there was no legal obligation or special duty owed to Jones to find her another job, especially after she stated unequivocally that there was no more trust and that management could not do anything to repair the working relations. Jones' preference, as she stated umpteen times, was to quit. However, in light of the Agreement, and having vindicated Knott, management also had a duty to the corporation to protect it from civil suit from Knott if he felt that he was treated differently because of a complaint that it found to be without merit. At the same time, management had a general obligation to Jones and Knott, as members of its workforce, to continue to provide them with a healthy environment.

95Looking at the matter circumspectly and from a commonsensical view, it might have been better if management had tried to or found Jones an alternate position in another department. This might have been a more prudent way to meet its ongoing obligation to foster a healthy work environment. Nevertheless, based on the evidence, the Board finds that Amway's solution was practical at the time in light of its multi-faceted duties. It is truly remarkable that management continued to make it feasible for Jones to retain her job, given her demonstrable pertinacious behaviour from the onset. It is even more remarkable that Knott found it feasible to continue to be her supervisor after Amway exonerated him from such a serious allegation.

96In sum, the Board finds that Jones' proposals were not rationally connected to repairing the working relations or the performance of her job, or her safety. The Board is satisfied that Amway's refusal to concede to other demands was not in the best interest of the corporation. The Board finds that management took extraordinary steps to continue to monitor the working relations between Jones and Knott and to coach them towards repairing the working relations. There is no evidence before the Board that during the three weeks in which Jones resumed her job, she had any reasons to make or made any further complaint to Amway or her lawyer or the Commission. Finally, the Board finds that Amway did provide a healthy work environment for Jones during and after her complaint.

(f) Did Amway communicate its response to Jones?

97Management's communication with the complainant must be in proper form and it must be sensitive and timely. It is not enough to merely inform the complainant of its actions: it must do so courteously. There may be situations where ongoing communication is necessary to satisfy the timeliness requirement. For instance, where it is necessary or prudent to seek input from the complainant in an effort to achieve a resolution. Like fairness, management must not only say it is sensitive to the complainant, it must demonstrate sensitivity. It is not unusual, however, for some tension to be manifested among the parties because of the nature of the complaint and the attendant stress. In that vein, it is appropriate to comment on Jones' view of management's attitude during the period of management's response.

98Jones testifies that initially she was comfortable dealing with Klopper and Millar. However, she states that in her meeting with Millar on March 27 he was "defensive" about her ideas. He seemed "mad" at her for making suggestions and she did not like the tone of his voice on March 29 when he called to clarify her agreement to return to work. There is conflicting evidence about the exchange of communication between them in the meeting of March 27. On the evidence, the Board concludes there was tension between Millar and Jones. Nevertheless, the Board is satisfied that the tension was not enough to conclude that management did not act in good faith and with sensitivity towards Jones' concerns. It has not escaped the Board that Jones' criticisms of management's handling of the investigation came after she was informed that her complaint of sexual harassment was without merit and was more than likely because she did not like the Agreement she struck with Amway. Finally, based on the evidence, the Board finds that there was continual communication between management and Jones during the entire period of investigation. The Board finds that the communication was timely, in proper form, and sensitive. The Board finds that Amway has met the reasonableness test in its obligation to communicate its response to Jones regarding her complaint.

99To recapitulate, the Board finds that Amway has met the six elements of the reasonableness test required to establish that its investigation was adequate. Amway has shown that at the time of Jones' complaint, it was aware that sexual harassment is prohibited conduct. In that vein, it implemented the Policy and a complaint mechanism. The Policy is not limited to sexual harassment, but it encompasses other aspects of human rights similar to those enumerated in the Code. It dealt with the matter seriously, and was sensitive and fair in doing so. It provided a healthy work environment at the time of complaint and responded to Jones' complaint expeditiously. Amway articulated its response continually to Jones.

Conclusions Based on the Finding that Amway's Investigation Was Adequate

100The Board concludes that:

(i) Amway or its management was not averse to human rights or human rights complaints;

(ii) Amway conducted its investigation fairly and sensitively;

(iii) Jones negotiated an agreement with Amway to return to her job after several meetings with management and consultations with her legal counsel;

(iv) Jones fully apprehended the nature, extent, nuances and consequences of the Agreement when she decided to return to work; and

(v) It was reasonable for Amway to believe that the Agreement with Jones brought closure to the matter and all the parties were going to move forward and try to repair the working relations.

101The Board makes several conclusions based on those findings. First, it was reasonable for Amway to believe that Jones was committed to participate in repairing the working relations. It is apt to note that good working relations existed between management and Jones, and Jones and Knott before the complaint. There was a one-week hiatus. Although management might have felt that Jones' attitude [w]as non-complaisant from time to time during the investigation, she did receive independent legal advice to return to work and had stated that decision to management and did return to work. Second, the Board concludes that without Jones' full co-operation the working relations could not be repaired. The ongoing schism could have made it difficult for management to carry out its business efficiently. And, it might have hindered management from meeting its legal obligation to foster a healthy work environment for all of its employees.

Did the act of management or Jones breach the agreement and become an intervening cause in the sequence of events?

102In this case, an adverse act by management or Jones would be enough to breach the Agreement. The undisputed evidence is that Jones did not attend a prearranged vendor site visit. Jones informed Knott that she did not think she should attend the visit. She did not give any reasonable explanation why she felt she should not attend: but she did not go. The Commission argues that management did not direct Jones to attend. At the hearing Jones offered no evidence why she did not go. Management did not caution or discipline Jones. Millar's evidence is that at the time he thought Jones was selective in her job duties. He did not state why management chose not to take any actions against Jones. Mindful of that, the Board finds that Jones' failure to attend the vendor visit on April 10, 1996, was a failure to do a job function, and therefore, a breach of the Agreement. In the Board's view, agreeing to return to work meant doing all her previous duties unless management expressly excused her from doing so.

The April 17, 1996, Memorandum

103The Commission and Jones argue that the memo was merely to create a record of what had occurred. They say Jones prepared the memo on the advice of her legal counsel. The Board notes that Jones omits salient information. For instance, the memo does not state that management had investigated the complaint and had found there was no harassment; it does not record that she entered an Agreement with management to return to work after several meetings with it and consultations with a lawyer; it does not state that "option (c)", i.e., "to quit", was initially her idea and not Millar's; and generally, even based on Jones' notes, it does not reflect a true account of the meetings between Jones and management. The most telling sentence is articulated as follows: "I do not want there to be any misunderstanding about our respective positions concerning this matter" (Exhibit 7 — emphasis added). By necessary implication, Amway had its own views about the matter and Jones had hers. In her view, there was never a mutual agreement. She would not recant. The memo continues to treat the matter as if there was no investigation, let alone a resolution between management and Jones. Based on the evidence before the Board, and perusal of the memo, the Board finds that it is neither a detailed nor a compendious record of what occurred in March 1996.

104The Commission argues that Amway should have used this memo to launch a formal inquiry into sexual harassment allegation. It is not clear what pragmatic purpose this would have served. There are curious phenomena though. Even after writing the April 17 memo, Jones did not lodge a complaint with the Commission. In fact, Jones lodged a complaint to the Commission only after she was terminated on April 26, 1996, and after she had given her lawyer instructions to pursue a wrongful dismissal claim against Amway. Also, the Board observes that Jones' April 17 memo was subsequent to her failure to attend the April 10 vendor's meeting.

105The Board accepts Millar's evidence that management felt that the contents of the memo left the impression that there was no willingness on Jones' part to go forward and make the relationship work. It felt that the memo had undone what management and Jones had agreed to and the closure that had been achieved by the Agreement. Management stresses that "all the parties must participate to make it work". In its view, Jones did not want to continue in her role. Based on the evidence before the Board, and perusal of the memo, the Board finds that it was reasonable for management to construe its contents as undoing what it had achieved. The Board is not persuaded by Jones' evidence that she composed the memo merely as a record of what occurred. In addition, the Board finds that Jones' action by way of her April 17 memo breached the Agreement. Finally, the Board concludes that both actions — refusing to attend the vendors meeting on April 10 and the April 17 memo — are intervening adverse acts by Jones that interrupted the chain of events between her complaint and the dismissal.

ANALYSIS

Liability

106It is settled law that a corporation may be held liable for a breach of the Code, under the organic theory of corporate liability. The employee's actions become those of the corporation itself, if the act complained of was done during the course of employment (see Canada (Treasury Board) v. Robichaud, supra; and Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.)). The acts of Klopper, Knott and Millar substantially form the allegation of reprisal. The Board finds that at all material times in this matter, those acts were duties performed in the ordinary course of their employment. Under the organic theory of corporate liability, the Board has decided to release the personal respondent, Knott, of personal liability because he was carrying out his duty as an employee of Amway when he took part in Jones' dismissal. Support for the Board's ruling can be found in Parks v. Christian Horizons (No. 1) (1991), 1992 CanLII 14242 (ON HRT), 16 C.H.R.R. D/40 (Ont. Bd.Inq.); Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.); see also Abouchar v. Toronto (Metro) School Board (No. 1) (1995), C.H.R.R. NP/96-106 and Makkar v. Scarborough (City)(1987), 1987 CanLII 8552 (ON HRT), 8 C.H.R.R. D/4280 (Ont. Bd.Inq.). Therefore, if the Board finds that Jones' termination was a reprisal, Amway alone would be liable.

The Dismissal

Was Amway's decision to dismiss Jones an act of reprisal or motivated by retaliatory concerns? Was the way in which management conducted the dismissal tainted by retaliatory motives?

107There are two legal maxims in human rights jurisprudence that govern the Board's answers to these questions. The first is that a complainant bears the onus to establish a prima facie case. If the complainant does so, the burden shifts to the respondent to give a reasonable lawful explanation for the objectionable conduct complained about. If the respondent discharges that burden, the onus shifts back to the complainant to establish that the explanation is a pretext. The touchstone for the burden of proof is on the balance of probabilities. The second is that if unlawful discrimination is a motive for a respondent's treatment of a complainant, the complainant's right has been infringed. Although reprisal is not a ground of discrimination, more recently, seminal jurisprudence has embraced the second maxim in cases where reprisal is alleged (see Moffatt v. Kinark Child & Family Services (No. 4), supra; Bryan, supra; Entrop v. Imperial Oil (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213; and Donaldson v. 463963 Ontario Ltd.(1994), 1994 CanLII 18429 (ON HRT), 26 C.H.R.R. D/335 (Ont. Bd.Inq.).

108There is a marked distinction concerning the elements that must be proven to support a finding where the allegation is unlawful discrimination and where the allegation is reprisal. It is settled law that discrimination will be found whether the act was intentional. Unlike enumerated prohibited grounds of discrimination, inherently, reprisal denotes an intention by the respondent to cause injury. Reprisal is an act of retaliation, which is, to repay an injury or insult in kind (see The Concise Oxford Dictionary). Reprisal is an intentional act. It is a separate head of protection under the Code intended to encourage complainants to pursue their rights without fear of retaliation. In Moffatt, supra, Adjudicator Laird states that a decision of reprisal could be taken only if there was evidence to support a finding or an inference that there was an intention to retaliate. Or, where there is at least a link between the human rights complaint and the ensuing negative impact on the complainant (also, see Entrop, supra). In other words, the complainant must adduce evidence to show that, on the balance, the respondent intended to retaliate. Similarly, any inference of intention or linkage must be based on evidence, which on the balance of probabilities, proves intention. Thus, the respondent must have a consciousness of mind to retaliate.

109In Entrop, supra, the Board states the following concerning "linkage" [at D/219, § 38]. "If the complainant reasonably perceived the act to serve as retaliation for the human rights complaint, this would also constitute sufficient linkage, quite apart from any proven intention on the part of the respondent" [emphasis added] (see also Donaldson v. 463963 Ontario Ltd., supra). As Adjudicator Laird explains in Moffatt, supra, an accurate interpretation of that finding is that the reasonable perception of a complainant may be relevant in assessing whether an intention or linkage can be inferred when there is no other proof of intention. This is not suggesting an alternative for the evidentiary requirement to prove intention. Notably, in Donaldson, supra, which gave birth to the nucleus of the "reasonable perception" concept, Adjudicator Laird found, based on the evidence before her, that the complainant's perceptions and reactions were understandable and reasonable in light of the respondent's persistent behaviour.⁴ "Reasonable perception of the complainant" requires evidence. It is not a mere figment of the complainant's imagination. In the Board's view, intention includes wilful blindness⁵ or recklessness⁶ which also has an evidentiary requirement.⁷

110The Commission and Jones argue that Amway terminated Jones because she complained to human resources that Knott sexually harassed her. They entreated the Board to find that the "termination script" itself is evidence of Amway's intention to retaliate against Jones because she sought to enforce her rights. In addition, they urge the Board to accept the content of the script as the words of Knott and that those words are what he felt. Further, they submit that it is Knott's position that Jones' allegations destroyed the working relations and it was on that basis she was dismissed. Thus, they urge the Board to draw an adverse inference from the fact that Knott did not testify and whatever was said at the meeting concerning the reasons for termination was true. The salient part of the script is reproduced verbatim below.

Art Knott

Kate, we have called this meeting to advise you that effective immediately, your employment is being terminated.

The reasons for your termination area [sic] as follows:

Our working relationship has been destroyed by your allegations.

You have initiated conditions that are incompatible with the work that needs to be accomplished.

You have not demonstrated willingness to make your employment here work for wither [sic] you or the Company.

This decision is final and as of today, your employment is terminated.

Karen is here to talk to you about your severance package.

111On the evidence, it is no mystery that the allegations that Knott behaved unseemly towards Jones had a negative impact on the working relations, at the very least between Jones and Knott. (It is apt to recall at this point that Knott was Jones' direct supervisor.) The script states: "Our working relationship has been destroyed by your allegations". It does not say that the allegations were the cause of the termination. Logically, there is a difference between these statements and most likely, in this case, they yield quite different outcomes. Proof that the allegations were the cause of the termination, necessarily leads to a finding of reprisal. Proof that the allegations were just the cause of destroying the working relations probably will lead to a finding that there was no retaliatory intent. To expand on the last point — it is clear on the evidence that the reason for Jones' termination was not because she made the allegations against Knott, but because she unreasonably continued to pursue the matter after an appropriate investigation had been done and a resolution had been achieved. Construing the script quite broadly, it says, Jones continuing to work at Amway would have inhibited her employment growth and Amway's ability to function efficiently in the telecommunication area. The reasons articulated for dismissing Jones are not retaliatory. In fact, based on the evidence before it, the Board has made similar findings.

112Neither the Commission nor Jones adduces evidence to show that Amway intended to dismiss Jones because she lodged a sexual harassment complaint to it. Klopper's evidence, which was not impugned is, after Millar informed them of Jones' April 17 memo, management spent much time considering whether the working relations would ever be repaired with Jones in that job. After that discussion, management decided that it was best for all the parties to dismiss Jones. The Board observes that approach is consistent with management's behaviour throughout those events. Millar testifies Jones was a "very important employee" to Amway. He states that before the April 17 memo, management had not considered dismissing her. Nor had management considered punishing her for complaining about Knott or making her an example to others for complaining about their supervisor. The Board accepts the evidence of Klopper and Millar. The Board is convinced that management had tried the alternative to termination and it did not work. Thus, it was reasonable for management to decide that it could not continue unilaterally to facilitate the continuation of Jones' employment in the telecommunication area. The Board is persuaded that management believed that the working relations were damaged beyond repair given the continuous attitude of Jones after she agreed to return to work. Jones' uncompromising demeanour was management's best indicator of her future behaviour. On the totality of the evidence, the Board concludes that Amway's decision to dismiss Jones was not intended to retaliate against her because she lodged a sexual harassment complaint: nor was reprisal a motive in its decision to dismiss her.

113There is no evidence before the Board to establish a prima facie case that the personal respondent Knott's actions in any way constitute reprisal. The unchallenged evidence is, he did not take part in the decision to dismiss Jones: nor did he write the script. The Board concludes that Knott's participation in the meeting to dismiss Jones was merely perfunctory. If the evidence supported a finding that Knott participated in the decision to terminate Jones, probably the Board would have found that reprisal was a motive or that the decision was tainted even though it has found there was an intervening event. Further, the Board would have been inclined to draw an adverse inference from Knott's failure to testify. Nevertheless, the Board has found that Knott was not personally liable under the organic theory of corporate liability. However, in the alternative, the Board concludes that there is no evidence to establish that he is personally liable.

Link between Dismissal and the Complaint

114In the Board's view, whether an allegation of discrimination is founded, it is likely to be an indelible event on the mind of a complainant. To that complainant, there would always be a link between the dismissal and the complaint, particularly where, as in this case, the complainant is not satisfied with the finding of the investigation. Nevertheless, the Board finds that the Agreement brought closure to Jones' complaint to Amway. The Board has concluded that Jones' failure to attend the April 10 meeting and the April 17 memo were adverse intervening acts that had the effect of breaching the Agreement. In this case, the Board finds that given the intervening acts by Jones, there is no causal link [that] exists between Jones' complaint to Amway and her termination. Or alternatively, if a link exists, it is too remote.

Was the way in which management conducted the dismissal tainted by retaliation?

115The evidence is Klopper and Knott conducted the dismissal meeting. The undisputed evidence is that Knott just read the script. There is no evidence that he was not courteous in doing so. The Board accepts the evidence that it is Amway's policy that the supervisor terminates an employee. Management had absolved Knott of any wrongdoing. Thus, it is understandable why management felt it was not necessary to deviate from that policy. It might have been more prudent to delegate the formality to someone other than Knott. However, that is tempered by the fact that that Knott did not write the script. The Board concludes that the way in which the dismissal was conducted was not tainted by retaliatory concerns.

CONCLUSION

116There is no doubt that these events have been a nadir in Jones' life, and have been emotively and physically taxing for her. However, the evidence does not support a finding of reprisal against Amway or Knott. The Board concludes that the complainant and the Commission have not established a prima facie case that the right of Jones under s. 8 of the Code, that is, to assert her right without reprisal, was infringed by either respondent. Therefore, the complaint is dismissed.

117There was no evidence before the Board that the complaint was frivolous, trivial, vexatious or made in bad faith. Nor was any evidence put forward on which the Board could take the decision that undue hardship was caused to the persons against whom the complaint was lodged. Given the peculiarity of this case, the Board would not have ordered the Commission to pay costs. In any event, no order for costs was requested. Thus, the Board will not make an order for costs in this case.

NOTES

¹ Exhibit 5, p. 10 indicates that date was Jones' last performance review. In that review, her supervisor indicates that her relations with others were "above job requirement". Management Comments indicate that Jones is a "pleasure to have as an employee": she was described as "intelligent" and "helpful".

² Millar had told Jones that if she had decided to return to her regular job, he wanted her to tell him what plans she had to make it work.

³ The Board's jurisprudence on reprisal is rather embryonic and even more so on cases where the subject matter is reprisal alone.

⁴ The evidence before Adjudicator Laird was that after the complainant had been terminated she was the victim of harassment at the hands of the respondent. She had received telephone calls, flowers and cards from him. One card was sent after a negotiation meeting where an offer of $10,000 was mentioned. Shortly after that meeting she received a card with a caricature of a person blindfolded and tied to a stake with rifles pointing to the head of the caricature and ten "one thousand lucky bucks". The complainant perceived the card to mean she was the person tied up before the firing squad and that $10,000 play money was all she would get or she would be dead. She took them so serious[ly] that she called the police (see Donaldson, supra, at 15 [D/341, § 37—38]).

⁵ In York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 at D/413 (Ont. Div.Ct.)), the Divisional Court defined the term "wilful" to mean that the conduct complained of must be intentional and the infringement of the complainant's right is the reason for the conduct.

⁶ In Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170, the term "reckless" is defined as conduct that evinces such disregard or indifference to the consequences or impact on the complainant.

⁷ Both are definitions concerning s. 41(1)(b) of the Code, but they are generic definitions and have wide application.