Awan v. Loblaw Companies Limited, 2009 HRTO 1046

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jasmine Awan

Applicant

-and-

Loblaw Companies Limited

Respondent

decision

Adjudicator: Brian Cook

Date: July 15, 2009

Citation: 2009 HRTO 1046

Indexed as: Awan v. Loblaw Companies

APPEARANCES

Jasmine Awan, Applicant ) Glen Morrison, Representative

Loblaw Companies Limited, )

Respondent ) Edward Majewski, Counsel

INTRODUCTION

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant, Jasmine Awan, alleges the respondent, Loblaw Companies Limited, discriminated against her in employment on the grounds of place of origin, ethnic origin, creed and age. The applicant self-identifies as a Muslim female of Pakistani descent.

2The Application was heard on May 25, 26 and 27, 2009. I heard evidence from the applicant and five witnesses called by the respondent. These were Lisa Clayton and Erica Copeland, who are both Human Resources Managers employed by the respondent, Carolyn Musinka, who was a Human Resources Manager at the relevant time, Elizabeth Sharpe, who was the applicant’s supervisor, and Mav Baines, who was a co-worker.

DECISION

3For the reasons that follow, the Application is dismissed.

BACKGROUND

4The applicant started her employment as a junior bilingual Accident Claims Adjuster in the respondent’s Risk Management department on February 26, 2007. She resigned her employment on November 14, 2007. Her application for benefits from the Employment Insurance Commission was denied by the Commission on the grounds that she had resigned her employment without good reason. A Board of Referees allowed her appeal from that decision.

5During the period of her employment the applicant worked closely with a senior bilingual claims adjuster May Baines, and reported to Elizabeth Sharpe. The applicant alleges that throughout the course of her employment she was subjected to discriminatory and intimidating comments and conduct by Ms. Sharpe culminating in November 2007 with a dispute with Ms. Baines concerning the scheduling of vacation time and a dispute with Ms. Sharpe concerning how the vacation issue was dealt with and concerns about Ms. Sharpe’s disclosure of an email. The applicant resigned her employment on November 14, 2007.

6The respondents made several requests for particulars. The applicant indicated that the particulars had been fully disclosed in the Application. The specific allegations are discussed below.

Comment on the first day of employment

7The applicant alleges that on her first day of employment, Ms. Sharpe said to her “You don’t want to get on my bad side because I can be a real bitch”, or words to that affect. Ms. Sharpe denies that she made such a statement.

8The applicant explained that she felt the statement was made in an attempt to intimidate her. She indicated that she felt vulnerable because she was a young woman of colour working in an office where most of the other workers were older and most were white.

Reference to the applicant as “the French girl”

9The applicant alleges that she was referred to as “the French girl” by Ms. Sharpe on several occasions. She feels that the purpose of this label was to create a division between those in the office who spoke French and those who spoke English. The applicant and Ms. Baines were the two bilingual Adjusters. The applicant felt that there was already some sense in the office that she and Ms. Baines were different because they were both young women of colour. The “French girl” label increased the isolation. She testified that she complained to Ms. Sharpe but that Ms. Sharpe continued to refer to her as the “French girl”.

10Ms. Baines testified that Ms. Sharpe referred to both her and the applicant as the “French girls” on at least one occasion. She testified that she told Ms. Sharpe that she did not like being identified in this way and asked her to stop. She testified that Ms. Sharpe never referred to her as the “French girl” after this.

11Ms. Sharpe denied referring to anyone as “French girl”. She indicated that she may have referred to the applicant and Ms. Baines as the “French ladies” but said she would not have called them “girls”.

Discussion about Ramadan

12The applicant fasted during Ramadan in 2007. She alleges that Ms. Sharpe asked her why she was not eating lunch. The applicant explained why she was fasting and Ms. Sharpe asked more questions about the matter. Ms. Sharpe then said negative things about fasting and said that she thought that the practice was “insane”.

13Ms. Sharpe recalled a discussion with the applicant about fasting at Ramadan. She testified that she knew very little about Islam and she was curious. She was interested in fasting because she herself had fasted the summer before for health reasons. She denied that she said anything derogatory about either fasting or Islam and in fact she was impressed that the applicant could maintain the fast because she knew from her own experience that fasting is difficult. She could not recall saying that the practice was insane. She indicated that if she did say that, it was meant in a positive way.

14In her testimony, Ms. Baines recalled a conversation between the applicant and Ms. Sharpe about Ramadan and fasting. Her impression was that Ms. Sharpe was genuinely interested and wanted to learn more. She did not recall Ms. Sharpe saying anything derogatory about Islam or about Ramadan and fasting.

Vacation scheduling and the disclosure of the email

15The department vacation policy stipulated that vacations could be booked on a “first come” basis. In August 2007, a vacation schedule was posted in the department. It indicated who in the department had already booked vacation. Ms. Sharpe sent email to the employees on August 14, 2007. It indicated how many vacation days each person had remaining as of August 2007. She asked that people not wait to the end of the year to book vacation time and set out who had already booked vacation time for December 2007. She reminded the staff that many were a member of a two person team and that only one member of the team could be off on vacation at a time. Ms. Baines and the applicant were identified as a team.

16Ms. Baines had booked the period from December 24, 2007 to January 4, 2008. The applicant testified she received the August 14, 2007 memo and was upset because Ms. Baines had booked off the period that included the Christmas and New Year’s statutory holidays. However, she did not pursue the matter at that time.

17Ms. Sharpe testified she sent further memos reminding staff about the need to book vacations. She did not hear any complaints from the applicant about the vacation situation until November 2007. The applicant booked December 19 to 21 as vacation.

18On or about November 6, 2007, the applicant asked Ms. Sharpe if she could have December 24 as a vacation day and confirmed her request by email that day.

19Ms. Sharpe responded the same day denying the request on the grounds that Ms. Baines had already requested the day.

20The applicant replied shortly after receiving the denial and indicated that she had been unaware of the “first come first served” vacation policy. She added:

I guess in today’s work you have to think about yourself before thinking of others. Knowing myself, this is definitely not the way I would have proceeded. After all, we should all work as a team & not selfishly.

21Ms. Sharpe forwarded this email to Ms. Baines on an “FYI” basis. Ms. Baines apparently received the forwarded email first thing on the morning of November 12. She and the applicant had a discussion which became heated. During the discussion, Ms. Baines showed the applicant the forwarded email and indicated that she was upset by the suggestion of selfishness. The applicant, in turn, was very upset to discover that her email to Ms. Sharpe had been forwarded to Ms. Baines.

22Ms. Sharpe intervened and she and the applicant had a heated discussion at the conclusion of which, the applicant left the workplace.

23According to the applicant, at one point, Ms. Sharpe asked her why it was so important for her to have time off over the holidays since the applicant did not celebrate Christmas. Ms. Sharpe denied saying this and claimed that it was the applicant who made such a comment about Ms. Baines, who is a Sikh.

24After leaving the workplace, the applicant communicated with members of the respondents’ Human Resources department, including Caroline Musinka and Lisa Clayton. On November 14, 2007, she emailed these individuals and others setting out her version of the discussion with Ms. Baines and her complaints about Ms. Sharpe. The email does not raise any of the human rights concerns identified in the Application.

25The email address for Ms. Clayton was not correct. However Ms Musinka forwarded the email to her. In her forwarding email, Ms. Musinka told Ms. Clayton that she would be out of the office for a few days. She added that she had received a voice mail from the applicant and that the applicant seemed very upset.

26The applicant testified that she spoke to Ms. Musinka and told her the whole story, including the human rights issues raised in the Application. Ms. Musinka testified that she did not talk to the applicant at any time after the applicant left the workplace on November 12. She noted that by that time, she no longer had human resources responsibility for the department where the applicant worked, although she had those responsibilities at the time the applicant started her employment. By November 2007, it was Ms. Clayton who had human resources responsibility for the department.

27On November 15, 2007, Ms. Clayton and her assistant, Erika Copeland, interviewed the applicant by telephone to clarify why the applicant had quit. Each of them took contemporaneous notes of the conversation. The notes indicate that the conversation concerned the applicant’s complaints about Ms. Sharpe, with a particular focus on the vacation scheduling issue and the forwarding of the email. The notes do not make any reference to any of the allegations referenced in the Application.

28The applicant testified that she complained about the human rights issues that are set out in the Application in the telephone conversation. Ms. Clayton and Ms. Copeland both testified that the applicant made no mention of any of the issues raised in the Application.

The Employment Insurance Commission application

29After leaving her employment with the respondent, the applicant applied for benefits from the Employment Insurance Commission (EIC). The EIC application is quite long and detailed. The applicant applied on line with the assistance of a labour organization. In answer to the question “which reason best describes why you quit?” she answered “I quit because of discrimination, harassment or personal conflict at work.” While the EIC application does provide detail about the vacation scheduling conflict and the forwarded email, there is no reference to any of the human rights allegations raised in the Application to this Tribunal.

30The EIC application was reviewed by an EIC Insurance Agent. The Agent conducted an investigation which included telephone conversations with the applicant and various people from the workplace. According to a memo from the Agent written after talking to the applicant, the applicant made reference to the “bitch” remark that Ms. Sharpe allegedly made on the first day of the applicant’s employment. The memo also indicates that the applicant alleged that she had longstanding problems with Ms. Sharpe and alleged that there was a “clique” at work from which she was excluded and that Ms. Sharpe “intimidated her, lacks discretion and professionalism”. Apart from the reference to the “bitch” comment, there is no mention of any of the other Code-related allegations in the memo.

31Benefits were denied by the EIC on the grounds that the applicant had voluntarily left her employment without just cause. The applicant appealed that decision and the matter came before the Board of Referees. A hearing was held on January 31, 2008. The applicant attended with representation and provided testimony and made submissions. The respondent was given notice of the hearing but did not participate.

32The Board of Referees issued a decision dated February 1, 2008. According to the decision:

The claimant told the Board conditions in her workplace deteriorated over time and she was gradually ostercized (sic) from the work group. She told the Board of political manoevers where employees were forced to choose allegiance. Ms. Awan stated her supervisor publicly humiliated her on more than one occasion and the situation got worse over time. Ms. Awan stated the final incident was when the supervisor violated a confidence and passed an e-mail to her co-worker which caused the co-worker to become angry and argue with her in front of other co-workers.

The claimant said following the argument, she left the workplace due to overwhelming stress. After considering her options, she decided to resign as she felt the work environment to be unbearable…

The Board found the claimant to be credible and finds her evidence to be compelling. The Board finds the employer violated its own policy… by not keeping personal matters discussed confidential.

The Board finds, on a balance of probabilities, the claimant’s work environment constituted a poisoned workplace.

The Board finds the claimant was under stress when she left and had no reasonable alternative to leaving when she did. The Board finds the claimant had just cause for leaving.

33In her testimony before me, the applicant agreed that she did not raise any of the human rights allegations mentioned in her Application during the hearing before the Board of Referees. Mr. Morrison pointed out that the applicant was not legally obliged to disclose her human rights allegations in her EIC application and nor was she required to raise them before the Board of Referees. Mr. Majewsky agreed with this but submitted that the fact that the applicant did not raise her human rights allegations may suggest that the applicant did not feel that the human rights allegations were significant at the time she applied for employment insurance benefits.

Analysis and conclusions

34In my view, the evidence fails to establish that the applicant was subject to discrimination in her employment.

35There is conflicting evidence about the “bitch” comment since Ms. Sharpe denies making it. Having heard the evidence of both witnesses, I conclude that it is possible that Ms. Sharpe made a comment along the lines alleged. If she did, it was likely intended as a joke and not intended to intimidate but it is quite possible that the applicant perceived the remark otherwise. However, there is no evidence that gender or sex discrimination played any role in the relationship between the two women. In the circumstances of this case it is not clear how the remark could be said to constitute discrimination under the Code.

36Ms. Sharpe also denied referring to the applicant as “the French girl” but indicated that she might have referred to the applicant and Ms. Baines as “the French ladies”. Ms. Baines testified that Ms. Sharpe referred to both her and the applicant as “the French girls”. I found Ms. Baines to be a very credible witness. She is no longer employed by the respondent and has no ongoing relationship with either the respondent or the applicant. She delivered her evidence in a straightforward and consistent manner and her memory was consistent with the passage of time and her knowledge of the events in question. I find that it is probable that Ms. Sharpe did refer to the applicant as either the “French girl” or a “French lady”. I also find that it is probable that Ms. Sharpe stopped doing this after Ms. Baines complained about it.

37The applicant and Ms. Baines both testified that this label had the effect of isolating them from others in the department and I appreciate why they found the label inappropriate. Not all forms of inappropriate behaviour or remarks are covered by the Code. Language itself is not a ground that is listed in the Code. Comments relating to the language or languages spoken by a person might nevertheless be discriminatory if the comments were linked to a prohibited ground, such as place of origin, ancestry, citizenship or ethnic origin. In this case, the label referred to the bilingual status of the applicant and Ms. Baines and it does not appear there was any link to a prohibited ground. I conclude that the label does not constitute discrimination under the Code.

38The discussion about Ramadan and fasting was a discussion that touched on matters of creed and religion. The applicant alleges that Ms. Sharpe made demeaning comments about fasting and, by implication, about Islam. In particular, the applicant alleges that Ms. Sharpe said that fasting was “insane”.

39Ms. Sharpe denies saying that fasting was insane. She asserts that to the contrary, based on her own experience, she was appreciative of the dedication that fasting requires.

40Ms. Baines was a witness to the conversation. Her impression was that Ms. Sharpe was genuinely interested in Ramadan and fasting. She did not have the impression that Ms. Sharpe was in any demeaning the applicant or her creed.

41I accept Ms. Sharpe’s evidence that she had little knowledge about Ramadan and fasting. I accept she was interested in fasting because of her own experience and that the comments she made about Ramadan reflected a genuine interest. I found Ms. Ms. Baines to be a reliable witness and accept her evidence about the conversation. On that basis, and on a balance of probabilities, I find that a reasonable person would not likely find any comments that Ms. Sharpe may have made about fasting to be discriminatory.

42The applicant does not allege that the vacation scheduling policy was discriminatory. Whether the applicant knew about the “first come” policy when she received the August email about the vacation schedule, or only found about it in November is not really relevant to this case because there is no suggestion that the policy was discriminatory.

43The applicant alleges that the way the vacation scheduling issue was handled was rooted in Code-related discriminatory attitudes and behaviours. However, I must conclude that there is no evidence to support this allegation. First, I have concluded that the particular allegations set out in the Application do not amount to Code-related discrimination. Second, it is quite apparent that the escalating communications around vacation scheduling were entirely rooted in the applicant’s increasing frustration with the fact that Ms. Baines had previously booked the vacation time that the applicant wanted. She was then very angry about the forwarded email. As she told the EIC and the Board of Referees, these were the primary causes of her decision to leave her employment.

44It is clear that Ms. Sharpe erred when she forwarded the applicant’s email to the applicant. She frankly acknowledged this at the hearing and expressed remorse for her error. However, it is not contrary to the Code to forward an email.

45Although the applicant testified that she did raise the Code-related allegations with Ms. Clayton, Ms. Copeland and Ms. Musinka, I must conclude that it is more probable than not that the applicant did not. If she had done so, Ms. Clayton and Ms. Copeland would likely have been concerned and likely would have investigated further. Their evidence was that the applicant did not raise any of the allegations set out in the Application before or after she left the workplace. Ms. Musinka testified that she did not speak to the applicant at all after the applicant left the workplace and her emails to Ms. Clayton seem to bear this out.

46In preferring the evidence of the respondents over the applicant on this point, I am particularly influenced by the EIC file. If the applicant had believed that she was forced to resign her employment because of continuing discrimination, she surely would have mentioned this to the Employment Insurance Commission adjuster and to the Board of Referees. At the time, she was asserting her entitlement to benefits and understood that the test was whether she had good cause for leaving the employment. In these circumstances, it would seem perverse not to mention the Code-related allegations as they could only serve to strengthen her case.

47I do not agree with Mr. Morrison that the finding by the Board of Referees that there was a “poisoned work environment” means that there was a poisoned work environment within the human rights context. The applicant agrees that she presented no evidence to the Board about her human rights allegations so it is difficult to see how the Board could have found there were human rights issues contributing to a poisoned work environment.

48Contrary to Mr. Morrison’s assertions, even if the Board of Referees did consider human rights issues despite the fact that the applicant did not raise those issues, a finding by the Board of Referees would not be binding on this Tribunal. The Board's findings would have limited probative value since the respondent did not participate and since the Board did not reference the Code but considered only the employment insurance legislation and policies and the issue of whether the applicant was entitled to employment insurance benefits.

49For all of these reasons, I find, on a balance of probabilities that the applicant was not subject to discrimination contrary to the Code in her employment with the respondent. The Application is dismissed.