Abla Ali v. Inter-Cultural Neighbourhood Social Services, 2009 HRTO 1233

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abla Ali

Applicant

-and-

Inter-Cultural Neighbourhood Social Services,

Andrea Seepersaud and Sonia Rashid

Respondents

case Resolution Conference DECISION

Adjudicator: Dale Hewat

Date: August 10, 2009

Citation: 2009 HRTO 1233

Indexed as: Ali v. Inter-Cultural Neighbourhood Social Services

AppearanceS BY

Abla Ali, ) Glen Morrison,

Applicant ) Representative

Inter-Cultural Neighbourhood Social Services, )

Andrea Seepersaud and Sonia Rashid, ) Jeremy Hann,

Respondents ) Counsel

Procedure

1This is an Application filed July 3, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on April 9, 2008 and abandoned upon filing this Application with the Tribunal.

2The Case Resolution Conference was conducted on March 12, 13 and April 16, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. The following witnesses testified: Abla Ali, Amira Masud, Tania Amaral, Debbie Oldfield, Darcy MacCallum, Eduardo Ramos, Terri Webber and Christopher Watts for the applicant and Sonia Rashid, Andrea Seepersaud and Noreen Pizada for the respondents. In finalizing my decision, I refer only to testimony necessary to support my findings about the applicant’s allegations. Wherever there is a conflict in testimony, I have noted it and indicated the version of events that I accept based on the candour of the witness and what makes the most reasonable sense given the totality of evidence.

Nature of the Dispute

3The applicant, Abla Ali, claims discrimination and harassment in employment and reprisal because of vocational association on the grounds of disability, ancestry, ethnic origin and place of origin pursuant to sections 5(1), 5(2), 6 and 9 of the Code. The Application was filed in response to her termination from employment with the respondent, Inter-Cultural Neighbourhood Social Services (“ICNSS”) on November 30, 2007. The applicant asserts that she was a victim of differential treatment, harassment and subject to a poisoned work environment in violation of the Code. The applicant self-identifies as a member of the Islamic faith who was born in Kuwait.

4The applicant alleged that in 2007, she felt ICNSS became a more autocratic workplace, that staff were harassed and mistreated and that situations were not investigated by management. She also asserted that people were afraid to speak up at work for fear of losing their jobs. The applicant claimed that her role on the Human Resources Committee was diminished in a humiliating manner. She also alleged that she was constantly yelled at by the Executive Director and spoken to in a condescending manner and that some of her duties were re-assigned to more junior staff. Ms. Ali also stated that she and a few other staff were told that only English may be spoken during work amongst the staff and that she viewed this direction as discriminatory. She also questioned the Executive Director’s tolerance of black women and of her colleague Mr. Barakat who self-identified as Arabic in origin. In addition, Ms. Ali claimed that her differential treatment was in part due to leaked information that she was in favour of the Canadian Union of Public Employees union (“CUPE”) drive that was taking place during the fall of 2007.

5The respondents deny that they engaged in any form of discrimination or harassment or that the ICNSS workplace was poisoned. They claim that in 2007, the applicant’s employment relationship became strained primarily with regard to her dealings with Ms. Rashid and her response to Mr. Barakat’s departure from ICNSS. In addition, the respondents allege that Ms. Ali was disrespectful to Ms. Seepersaud at the Annual General Meeting in June 2007 and to a receptionist and another staff member in the fall of 2007. The respondents also assert that Ms. Ali did not follow agency protocol and undermined Ms. Seepersaud when she sent a detailed letter complaining about her mistreatment to the Board of Directors and the Human Resources Committee on November 26, 2007.

6The applicant’s employment was terminated on November 30, 2007 without cause and she received 12 weeks pay in lieu of notice and severance pay. The respondents, however, assert that the applicant’s termination was related to her inappropriate workplace behaviour along with her inability to constructively communicate with ICNSS management representatives. Essentially, the respondents claim that there was a complete breakdown in the employment relationship which provides a non-discriminatory response to the applicant’s allegations. Alternatively, the respondents argued that the Application should be dismissed pursuant to s.45.1 of the Code on the basis that the applicant’s complaint was appropriately dealt with pursuant to a settlement reached with respect to an application brought by CUPE before the Ontario Labour Relations Board.

Decision

7The Application is dismissed. What follows are my reasons.

Background

8The respondent ICNSS is a community-based non-profit agency that delivers programs and services such as language and job search training to immigrants and ethnic minorities in Mississauga, the Region of Peel and in the Greater Toronto Area. ICNSS is funded and reports back to outside government agencies and other funding sources like the United Way. In order to serve its client base, ICNSS has a diversified workforce with employees originating from many countries speaking a multitude of languages and practicing different religions.

9The applicant, originally a client of ICNSS, was hired in February 2002 initially as an administrative assistant and then was appointed to the position of Executive Assistant to the Executive Director, Andrea Seepersaud.

10Based on all of the testimony, it was clear that Ms. Ali and the respondent Ms. Seepersaud had an excellent and close working relationship until the summer of 2007. Both considered each other as professional colleagues and friends and that they worked as a team. The two had interconnecting offices, practiced a complete open-door policy and Ms. Ali was the first point of contact for staff wishing to communicate with the Executive Director. Although Ms. Ali received only one performance review in 2002, there were no complaints or concerns with her work performance or behaviour until 2007. A number of the witnesses testified, however, that by November 2007 they witnessed Ms. Ali crying and upset at work and observed deterioration in the relationship between Ms. Ali and Ms. Seepersaud.

11Between 2002 and 2006, Ms. Ali, Ms. Seepersaud and Mr. Barakat, ICNSS’s Director of Finance, worked as a close-knit team running the day-to-day operations of the agency. Ms. Ali and Mr. Barakat got along very well and respected each other.

12In 2006, ICNSS received a substantial increase in funding which enabled the provision of additional programs and services at three new locations requiring the hiring of 60 employees. In response to the increased growth, Ms. Seepersaud required extra assistance in human resources. She hired the respondent Sonia Rashid on a part-time basis to assist the Human Resources Coordinator, Claudette LaRoque. After Ms. LaRoque left ICNSS in the spring of 2007, Ms. Rashid took over her position and acquired more human resource responsibilities.

13Ms. Seepersaud testified that as ICNSS expanded, it required more financial structure and control and that Mr. Barakat had been making errors and could not fulfill the agency’s future needs. Due to a number of differences in direction, Mr. Barakat left ICNSS in August, 2007. Ms. Seeprersaud also stated that she believed that Ms. Ali divulged confidential information, following a Board meeting in which Ms. Ali took minutes that detailed information pertaining to the future of Mr. Barakat’s position. Ms. Ali questioned the legitimacy of Mr. Barakat’s resignation from ICNSS and admitted that she was hurt and felt that he was treated unfairly by ICNSS. Although Ms. Ali alleged that Ms. Seepersaud was not tolerant of Mr. Barakat because of his Arabic background and claimed that Ms. Seepersaud became impatient with his English, there was no other evidence provided to corroborate these claims. Mr. Barakat did not testify. Ms. Seepersaud also testified that after Mr. Barakat left ICNSS, Ms. Ali was angry and bitter about his departure.

Workplace Incidents

14Ms. Seepersaud explained that she was embarrassed and humiliated by Ms. Ali on June 27, 2007 at ICNSS’s Annual General Meeting. Ms. Seepersaud testified that there had been an issue about missing information and that Ms. Ali questioned and glared at her making her feel uncomfortable. At the management meeting following the Annual General Meeting, Ms. Ali also would not look her, again making Ms. Seepersaud sense hostility and feel embarrassment in front of colleagues. Ms. Ali would not speak to Ms. Seepersaud for two days following this incident. Ms. Ali also spoke with the President of the Board privately without initially approaching Ms. Seepersaud. Ms. Ali later acknowledged that she did approach the President of the Board as a friend.

15On August 7, 2007, Ms. Ali asked to speak with Ms. Seepersaud. According to Ms. Seepersaud, when Ms. Ali appeared distraught, she tried to comfort her by giving her a hug and talking about Ms. Ali’s concerns. During that conversation a number of matters were raised by Ms. Ali concerning her feelings about her possibly being left out of plans to restructure and her belief that Ms. Rashid was not appropriate for the job. In her testimony Ms. Ali confirmed that in her opinion, Ms. Rashid was too young for the job and did not have enough experience for the human resources position. It was evident that Ms. Ali was very concerned with Ms. Rashid’s expanded role, particularly on the Human Resources Committee. Ms. Ali testified that she used to attend all of the Human Resources Committee meetings and take minutes but by the fall of 2007 she was not invited to attend and was asked only to arrange breakfast for the meetings, which she refused to do. Ms. Ali also took the position that Ms. Rashid originally reported to her but that reporting structure unofficially changed when she observed Ms. Rashid and Ms. Seepersaud conducting private meetings and generally not including Ms. Ali in any decision-making. Ms. Rashid testified that she and Ms. Ali got along when she was first hired, but that their relationship changed for the worse. Ms. Rashid also believed that Ms. Ali accused Ms. Rashid of being the cause of Ms. Ali’s problems at work.

16Ms. Ali also raised concern, on August 7, 2007, about an email that she had received from Ms. Rashid on August 3, 2007 in which she understood that she was not to speak Arabic with other staff. According to Ms. Rashid’s testimony, the email was sent to Ms. Ali and five other staff members in response to at least ten complaints received by some staff about people speaking to each other in their own languages during work which they found rude and unprofessional. Although the work with ICNSS clients often required staff to speak in their first language it was clear from both Ms. Rashid and Ms. Seepersaud that cultural sensitivity was important among the culturally diverse staff during working hours. As a result, Ms. Rashid was asked, by Ms. Seepersaud to send an email reminding some staff members, including the applicant, of their responsibilities. The email read as follows:

This email serves as a memo to please be cognizant of language used around the office. We are an intercultural cultural agency and we encourage diversity; however in light of that we must respect and be courteous to one another when communicating in our professional environment. Please only use the English language when dealing with your work both verbally and in writing, unless of course you are dealing with a client. If you have any questions or concerns in regards to this email, you may see me. If not please take this as your first reminder. Thank you, Sonia Rashid

17Although Ms. Ali became aware that the email was sent to her and Mr. Barakat and four other staff who spoke different languages, she was greatly offended and insulted by it. She understood, however, that she was not prevented from speaking Arabic with colleagues during breaks or lunch. During her cross-examination, she agreed, however, that because of the multicultural issues at ICNSS there was an unwritten rule to not speak one’s own language to other colleagues during work.

18Other incidents involving Ms. Ali occurred in the fall of 2007 when Ms. Ali was observed speaking loudly to the receptionist and in early November 2007 in the presence of ICNSS clients. On November 16, 2007, Ms. Ali got into an altercation with a member of the Information Technology department in front of other staff members. Ms. Seepersaud testified that because of her serious concerns about Ms. Ali’s behaviour, she drafted a warning letter on November 20, 2007 that she had intended to give to Ms. Ali. Instead what occurred was an emotional conversation between Ms. Ali and Ms. Seepersaud at the end of that work day. Ms. Ali had returned from a doctor’s appointment and advised Ms. Seepersaud that her results were not good and began crying. Ms. Seepersaud approached Ms. Ali and conveyed concern that there had been a breakdown in their relationship particularly due to Ms. Ali’s dislike of Ms. Rashid. Ms. Seepersaud indicated that the change in Ms. Ali’s behaviour was unbecoming of her usual behaviour and Ms. Ali responded that it was Ms. Seepersuad who had changed and who was cutting her off from the work relationship. It was agreed that Ms. Ali should go home. Ms. Ali provided a doctor’s note the next day and returned to work a week later at which time she received the November 20, 2007 letter.

19Unbeknownst to Ms. Seepersaud, Ms. Ali sent a letter dated November 26, 2007 to the ICNSS Human Resources Committee with a copy to the Board of Directors outlining concerns alleging mistreatment by Ms. Seepersaud including the removal of responsibilities, potential salary reduction, concerns about how Mr. Barakat was dealt with, her reaction to the email about speaking English and concern about the termination of another employee. She also provided her version of the November 20, 2007 conversation with Ms. Seepersaud claiming that she was told that there had been complaints about her behaviour since Mr. Barakat’s departure and that she no longer fit within the agency. Ms. Ali indicated that her health was suffering due to the interactions at ICNSS.

20Following meetings with Ms. Ali and the Vice President of ICNSS, Ms. Seepersaud further investigated Ms. Ali’s allegations. Ms Seepersaud concluded that because of the on-going difficulties with Ms. Ali’s behaviour the employment relationship had completely broken down with no hope for reconciliation. As a result, Ms. Seepersaud and Ms. Rashid met with Ms. Ali on November 30, 2007 and provided her with a termination package. By the end of January 2008, Ms. Ali did secure alternate full-time employment and had cashed the severance and termination pay from ICNSS. Her Human Rights Complaint was filed on May 12, 2008.

Conclusion

21Based on the totality of witnesses’ testimony, there appeared to be a pattern that most were aware that by the end of 2007 the work environment at ICNSS was strained. In the fall 2007, a union drive was underway and it was clear that there was a sense of fear among staff to speak their opinions. In addition to Ms. Ali, two other staff members were terminated during the Union drive and CUPE brought an application to the Ontario Labour Relations Board on December 11, 2007 claiming that such terminations constituted unlawful interference with the Union drive pursuant to Section 96 of the Labour Relations Act, 1995. That application was settled on behalf of the two other staff members by CUPE and ICNSS. Although Ms. Ali was named as one of the affected employees in that application, she did not want to participate in the settlement discussions and did not sign a settlement agreement or release. Debbie Oldfield, the Union organizer for CUPE at that time, testified that the Labour Board application pertained to each of the employee’s interaction with CUPE and the response by ICNSS. Ms. Oldfield also stated that she could not give specific details about Ms. Ali’s claim of harassment and also confirmed that Ms. Ali did not mention any of the enumerated grounds of discrimination alleged in the Human Rights Application.

22The evidence pertaining to CUPE’s Labour Board application establishes that Ms. Ali was not a party to any settlement nor did she sign a release with ICNSS. Although some of CUPE’s allegations in that application pertain to some of the same facts raised in the instant Application, I cannot conclude that another proceeding has appropriately dealt with the substance of the Application as required by s.45.1 of the Code. Accordingly, the respondents’ motion to dismiss the application pursuant to section 45.1 cannot succeed.

23On the merits, there was little evidence with respect to Ms. Ali’s other allegations about Ms. Seepersaud. For the following reasons, I do not find support for Ms. Ali’s allegations. Although Ms. Ali claimed that she was yelled at and ignored by Ms. Seepersaud, none of the other witnesses testified about Ms. Seepersaud speaking rudely or in a condescending manner to Ms. Ali. Ms. Ali also mentioned that Ms. Seepersaud told her once that she had an issue with black women but did not provide any context or details of that allegation other than to comment that she knew of a black female employee who had been terminated. In addition, Ms. Ali commented that Ms. Seepersaud complained about not understanding Mr. Barakat’s English and how allegedly Ms. Seepersuad became less tolerant of Mr. Barakat who did not testify. Ms. Seepersuad testified that when Mr. Barakat was originally hired in 1999, he was a co-op student working in an ICNSS language integration program. She admitted that language was a barrier when he initially started but notwithstanding that issue, he was selected because of his accounting background and the opportunity for him to use and practice English. Ms. Seepersaud’s concerns about Mr. Barakat’s ability related to his accounting errors and the challenge for him in handling ICNSS’s expanded financial issues.

24Mr. McCallum, a manager between 2006 and 2008 and previous ICNSS Board member testified that he couldn’t judge if there had been any different treatment of Ms. Ali. He did recount a medical emergency involving Ms. Ali that took place in late November 2007 and noted that he believed that she was under stress and trauma from work. He also mentioned a conversation that he had with Ms. Seepersaud in which he claimed she said, in reference to challenges involving Ms. Ali and Mr. Barakat, that “people from the Middle East could not take correction”. In cross-examination, however, he could not recall the context of their discussion or the time-frame but only that he felt uncomfortable with the comment. Ms. Seepersaud categorically denied making such a comment. She testified that Mr. McCallum was terminated from ICNSS in July 2008 and that he was anti-administration. There was also some evidence by Mr. McCallum pertaining to the development of an equity committee that he had hoped to establish with Ms. Seepersaud but that did not occur.

25On balance, I do not accept the testimony of Mr. McCallum with respect to the alleged comment about people from the Middle East. Mr. McCallum left ICNSS on questionable terms and could not recall any other details surrounding the alleged comment. There was also a sense of frustration by Mr. McCallum because of his lack of success in moving the equity committee concept forward. Ms. Seepersaud testified at length about her role for 15 years as the Executive Director of a diverse workplace serving a similar client base and her responsibility of ensuring a workplace free from discrimination and harassment. The comment alleged by Mr. McCallum counters the thoughtful attitude and demeanour that she displayed in her testimony.

26Given the totality of evidence, I do not find that Ms. Ali suffered from harassment or differential treatment or that the workplace at ICNSS was poisoned within the meaning of the Code. Section 10(1) of the Code defines “harassment” as: “engaging in a course of vexatious comment or conduct that is known or ought reasonably known to be unwelcome”. A poisoned work environment may exist where the impact of continuing conduct of harassment and discrimination affects an individual or group even when such conduct is not explicitly derogatory or intended to offend. The evidence established that beginning in June 2007 there began a breakdown in the relationship between Ms. Ali and Ms. Seepersaud and Ms. Ali and Ms. Rashid. In reviewing Ms. Ali’s testimony, it was clear that she was hurt, upset and questioned Mr. Barakat’s resignation from ICNSS. She also told Ms. Seepersaud that Ms. Rashid was not suitable for the human resources position because of Ms. Rashid’s inexperience and age. It was clear that Ms. Ali was also upset about the relationship that developed between Ms. Seepersaud and Ms. Rashid and was very troubled that her involvement in the Human Resources Committee and other decision making was diminished.

27In terms of the email sent by Ms. Rashid regarding language, I find that the email was not sent to differentiate Ms. Ali or even Mr. Barakat. The directive about language was sent to other staff members in response to culturally sensitive concerns among ICNSS staff. There also existed an understanding, even by Ms. Ali, to speak in English in the presence of other staff members as a courtesy. Ms. Ali also spoke to Ms. Seepersuad in August 2007 about the email in which cultural sensitivity issues were discussed between them. Although there may have been other approaches than through an email to raise the concerns about language, I find that the email notice was not discriminatory.

28Considering the totality of evidence, it is clear that there was a complete breakdown in the employment relationship and no confidence in ICNSS’s view that the relationship with Ms. Ali was repairable. Between the departure of Mr. Barakat, the increased responsibility of Ms. Rashid and the involvement of CUPE in the fall 2007, it was evident that Ms. Ali was upset and frustrated at work. It is also evident that she had sought medical help to assist her with stress that she was suffering. However, I cannot conclude that a pattern of discriminatory conduct occurred resulting in harassment or a poisoned work environment. Instead what the evidence points to a situation in which Ms. Seepersaud lost faith in Ms. Ali. The incidents at the ICNSS annual general meeting, the leak of information about Mr. Barakat’s future, the loud verbal exchanges involving Ms. Ali and other staff members in the fall 2007 and finally Ms. Ali’s November 26, 2007 letter to the ICNSS Board and human resources committee are all examples of Ms. Seepersaud’s concerns.

Order

29Accordingly, in light of the above conclusions, I do not find a violation of sections 5(1), 5(2), 6 or 9 of the Code by any of the respondents. This Application is dismissed.