HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Janet Coates
Applicant
-and-
Communications, Energy & Paperworkers Union, Local 324,
George Smith and Shelley Kiewning
Respondents
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: Mark Hart
Indexed as: Coates v. Communications, Energy & Paperworkers Union, Local 324
APPEARANCES BY
Janet Coates, Applicant ) on her own behalf
Communications, Energy & Paperworkers ) Denis Ellickson,
Union, Local 324 and George Smith ) Counsel
Respondents )
Shelley Kiewning, Respondent ) Theodore Scollie,
) Counsel
1This is an Application dated August 25, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on May 17, 2007.
2The applicant alleges that she experienced harassment in employment by Ms. Kiewning because of her martial status, contrary to ss. 5 and 9 of the Code. The applicant also alleges that the respondent Local and Mr. Smith failed to take reasonable steps to address this harassment.
3The Case Resolution Conference (“hearing”) commenced on April 20, 2009 and continued on April 21 and July 30 and 31, 2009. The hearing was conducted in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. In accordance with this expectation, I heard evidence from the following witnesses: the applicant; the personal respondent Ms. Kiewning, who was the President of the respondent Local at the material time and the applicant’s direct supervisor; and the personal respondent Mr. Smith, who was Vice-President and later acting President of the respondent Local at the material time. I conducted the initial questioning of the applicant and Ms. Kiewning, while the evidence of Mr. Smith was led by his counsel. The parties were afforded the opportunity to cross-examine these witnesses prior to the conclusion of the proceeding.
Review of Evidence
4The respondent Union Local (the “Local”) operates a small office in Dryden, Ontario, which is staffed by the President and an Administrative Assistant. The applicant was employed by the Local as the Administrative Assistant during the period from October 20, 2000 until August 18, 2004, when she left for another job. The applicant returned to her position as Administrative Assistant in September 2005.
5The personal respondent Shelley Kiewning was Local President at the time material to this Application. Prior to Ms. Kiewning’s tenure as President, another member of the Local, Rickie Michalik, had served as Local President. Mr. Michalik left his position as President to become a National Representative for the Union.
6The evidence indicates that there was a difficult relationship between Ms. Kiewning and Mr. Michalik, which related to Ms. Kiewning’s view that Mr. Michalik was continuing to be over-involved in the affairs of the Local, rather than becoming involved as National Representative only at the Local’s request. Ms. Kiewning’s evidence is that she raised these issues internally with the Union and ultimately pursued a complaint against Mr. Michalik.
7In June 2006, the applicant commenced a dating relationship with Mr. Mihalik. The applicant’s evidence is that this dating relationship progressed to the point where Mr. Mihalik commenced living with her in early November 2006.
8The evidence indicates that the applicant’s personal relationship with Mr. Mihalik was not known to Ms. Kiewning until late October 2006. On the evening of Thursday, October 26, 2006, Mr. Mihalik’s spouse and daughter came to Ms. Kiewning’s home and asked Ms. Kiewning whether she was aware that the applicant was having an affair with Mr. Mihalik. Ms. Kiewning’s evidence is that she said that she was not aware.
9The applicant became aware on October 26, 2006 that Mrs. Mihalik had gone to Ms. Kiewning and told her about the personal relationship between the applicant and Mr. Mihalik. The applicant called in sick on Friday, October 27, 2006 and returned to work on Monday, October 30, 2006.
10On October 30, 2006, the applicant was asked by Ms. Kiewning to locate her employment contract. Ms. Kiewning’s evidence is that it was common for her to review with the applicant the terms of her employment contract from time to time, and that asking the applicant to locate her employment contract for that purpose on October 30, 2006 was unrelated to the information that Ms. Kiewning had just gained about the applicant’s personal relationship with Mr. Mihalik.
11I do not accept this evidence. It strikes me as entirely too coincidental that Ms. Kiewning wanted to review the employment contract on the applicant’s first day back to work after finding out about the personal relationship with Mr. Mihalik. Further, on Ms. Kiewning’s own evidence, one of the reasons she wanted to review the employment contract was to underscore that the applicant reported to her and not to Mr. Mihalik, in light of Ms. Kiewning’s concern that information about the affairs of the Local was being provided by the applicant to Mr. Mihalik without her knowledge or authorization as President. In my view, any such concern on Ms. Kiewning’s part would only have been heightened by the knowledge of the personal relationship between Mr. Mihalik and the applicant.
12On November 6, 2006, the applicant arrived at work and found three memos from Ms. Kiewning on her desk addressing a variety of work-related issues. The applicant does not object to the content of these memos or the legitimacy of the issues they raised. However, the applicant does object to the format of Ms. Kiewning using these memos to communicate with her. There is no dispute that communications between the applicant and Ms. Kiewning had been less formal prior to this, with Ms. Kiewning either addressing issues verbally with the applicant, or sending her e-mails or leaving her sticky notes on her desk. The applicant views the change in the formality of the communications by Ms. Kiewning as arising out of Ms. Kiewning’s knowledge of her personal relationship with Mr. Mihalik and as the start of a campaign to document her work performance with the goal of getting rid of the applicant.
13Ms. Kiewning’s evidence is, once again, that it was just a coincidence that her use of memos to communicate with the applicant arose such a short time after she became aware of the personal relationship with Mr. Mihalik. Ms. Kiewning’s evidence, which is disputed by the applicant, is that the applicant herself had requested that Ms. Kiewning use memos for this purpose and had shown her a template on the computer for her to do this. Ms. Kiewning strenuously denies that she was documenting the applicant’s work performance or that there was any disciplinary intent to these memos.
14Once again, I do not accept Ms. Kiewning’s evidence that it is just a coincidence that she started using these memos so shortly after learning about the applicant’s personal relationship. Rather, I find that, in light of discovering the news about the applicant’s relationship, Ms. Kiewning may have thought that a greater degree of formality in her communications with the applicant was appropriate or necessary. However, I do not find that there is anything in the content of these memos that supports that there was any intent on Ms. Kiewning’s part to work towards disciplining the applicant.
15I also heard evidence from both the applicant and Ms. Kiewning that their personal interaction in the office was somewhat strained during this period. The applicant’s evidence is that Ms. Kiewning stopped talking to her. Ms. Kiewning’s evidence is that she continued to say “good morning” to the applicant, but the applicant would not respond. The applicant acknowledges that at times she would not respond, but states that Ms. Kiewning would say “good morning” in an insincere tone. Ms. Kiewning’s evidence also is that the applicant would not make eye contact with her, and at times would not respond to work-related requests. Ms. Kiewning testified that on one occasion when asked by Ms. Kiewning to get a grievance, the applicant told Ms. Kiewning to get it herself. This is disputed by the applicant.
16On November 7, 2006, the applicant wrote a three page memo to Ms. Kiewning providing a detailed response to the memos that she had received the day before. The applicant copied this memo to the Local’s entire executive committee, which constituted 12 additional individuals. The copying of this memo to the entire executive committee was unwise and inappropriate. The applicant’s explanation for doing so is that she felt that she was being harassed by Ms. Kiewning and that she did not feel comfortable raising these issues with her harasser.
17I do not accept this. The applicant does not allege anywhere in her memo that she is being harassed by Ms. Kiewning, and instead addresses the work-related issues that had been raised by Ms. Kiewning. If the applicant felt that she was being harassed at this time, the appropriate course of action would have been to raise this issue squarely with the Local Vice-President, as she did subsequently. But to copy her response on work-related issues to the entire executive committee was rightly perceived by Ms. Kiewning as undermining her authority as President and as the person to whom the applicant reported.
18The applicant next received a set of 7 memos from Ms. Kiewning dated November 24, 2006. Some of these memos pertain to minor work-related matters, about which no issue is taken as to their content. One of the memos asks the applicant not to use her cellphone during working hours, and notifies the applicant that MSN has been deleted from her computer. The applicant handwrote a response stating that this was “no problem” and that she would just have to notify the schools and daycare attended by her children to call the office line in the event of an emergency.
19Another memo notified the applicant that the Local office would be open the week of Christmas but closed on December 25 and 26, and asked the applicant to let Ms. Kiewning know if she would be requesting any time off that week. The applicant alleges that this memo changed a past practice of closing the office and allowing the Administrative Assistant to stay home with pay during Christmas week. While this may have been a practice when Mr. Mihalik was President, the evidence does not support that it was a practice during Ms. Kiewning’s tenure as President. Further, the evidence indicates that there were ongoing collective agreement negotiations at that time, so there was a legitimate business reason for keeping the Local office open.
20The applicant alleged that she was sent this memo because Ms. Kiewning was aware that the applicant had plans with Mr. Mihalik during Christmas week and Ms. Kiewning wanted to disrupt those plans. The applicant’s evidence does not indicate that she had a direct conversation with Ms. Kiewning about these plans; rather, her evidence is that she discussed these plans with others in the Local office when Ms. Kiewning was present and she assumes that Ms. Kiewning overheard this. Ms. Kiewning denies any knowledge of the applicant’s Christmas plans, other than knowing that the applicant’s sister was going to be visiting. On the basis of the evidence as tendered, I am not satisfied that Ms. Kiewning was aware of any plans the applicant may have had with Mr. Mihalik.
21Another of the memos received from Ms. Kiewning addressed the applicant’s November 7, 2006 memo that had been copied to the executive committee. Ms. Kiewning’s memo states that she felt that the applicant was “out of line” when she sent the November 7, 2006 memo and reminds the applicant that her conditions of employment state that any concerns are to be taken up with the President. The memo also provides for the applicant’s information, a number that she could contact for counselling. In my view, this memo is disciplinary in nature and constitutes a written warning for the applicant’s conduct in sending out the November 7, 2006 e-mail. At the same time, in my view, a warning letter of this nature was justified and appropriate in the circumstances.
22The applicant’s conditions of employment state that if any issues raised by her cannot be resolved by the President, the President will delegate an executive member to address them. In exercise of this term, on November 27, 2006, Ms. Kiewning asked the applicant to participate in a conference call with an executive member, Mr. Brumwell. The applicant’s evidence is that she was not feeling well that day, and she asked not to be required to participate in this call. She states that Ms. Kiewning’s response was that if the applicant was well enough to be at work, she was well enough to participate in the call; otherwise, the applicant should go home. Ms. Kiewning’s evidence is that she didn’t express herself this way, but rather offered the applicant the opportunity to go home if she wasn’t feeling well. Given the strained relationship between these two individuals at that time, I am not surprised that they each have different perceptions about the message that was being conveyed.
23Ms. Kiewning states that she convened the call because the applicant would not discuss with her the issues raised in the November 24, 2006 memos. The applicant’s evidence is that they already had discussed these issues. In any event, it is clear that there were issues in the Local office at that time that were unresolved, so I do not regard it as inappropriate for Ms. Kiewning to have convened this call. The evidence indicates that Ms. Kiewning reviewed the issues that she had raised, and that the applicant was given an opportunity to respond. The applicant wanted to take notes of this discussion, but this was denied by Ms. Kiewning. Ms. Kiewning’s evidence is that she wanted the applicant to focus on what she was saying, rather than on taking notes.
24On November 30, 2006, the applicant requested that Ms. Kiewning utilize a “to do” book to track the work assigned to the applicant. Ms. Kiewning agreed and reimbursed the applicant for the purchase of this book.
25On December 1, 2006, the applicant sent an e-mail to three executive members to update them on what had been happening in the Local office. In this e-mail, the applicant states that she had received 7 more memos from Ms. Kiewning and was made to have a conference call with Ms. Kiewning and Mr. Brumwell. The sending of this e-mail to these three executive members was clearly contrary to the direction the applicant had been given by Ms. Kiewning in one of the November 24, 2006 memos. The applicant states that she sent this e-mail because these executive members had asked to be updated. While these individuals may indeed have asked to be updated, this does not make it appropriate for the applicant to have disregarded the written warning that she had received and to send an e-mail of this nature without Ms. Kiewning’s knowledge or approval.
26Ms. Kiewning commenced vacation on December 11, 2006 and was to be off until the end of that month. Nonetheless, Ms. Kiewning continued to work from her home, and remained in contact with the Local office.
27On December 12, 2006, Ms. Kiewning sent an e-mail to the applicant telling her not to cc or bcc e-mails to the applicant’s personal e-mail account. The applicant’s evidence is that she was doing this because Ms. Kiewning was routinely deleting e-mails from the Local computer and she wanted to maintain a record of these e-mails. Ms. Kiewning acknowledges that she did regularly delete e-mail, both for the purpose of maintaining space on the computer system and because she had been advised that for privacy reasons unnecessary information should not be retained. I see nothing inappropriate in Ms. Kiewning as President telling the applicant not to copy work-related e-mail to the applicant’s personal account.
28On December 13, 2006, Ms. Kiewning sent a further memo to the applicant regarding a fax that the applicant had sent to an executive member inviting him to contact the applicant on her cellphone. Ms. Kiewning’s memo addresses the issue that the applicant is not to conduct Local business at home or on her cellphone after working hours. There is no dispute that there had been one previous occasion when the applicant had left an outgoing telephone message advising callers to contact her at her home number and another occasion when the applicant had left a sign on the Local office door telling people to contact her at her home. There is no dispute that these issues had been addressed by Ms. Kiewning and the applicant had been told not to do so, primarily for her own safety and security. The applicant’s evidence, however, is that she did not understand this to apply to contacts with executive members.
29The dynamic that I see from the evidence is that the applicant, as the Local’s Administrative Assistant for many years, had developed working relationships with various executive members and did not perceive there to be anything wrong with making herself available to assist them. On the other hand, Ms. Kiewning, as President, was the person to whom the applicant reported, and Ms. Kiewning did not want the applicant being drawn into Local business during her off work hours. While the applicant may have been willing to become involved in such matters outside of work, there is nothing inappropriate in her boss, Ms. Kiewning, telling her that she is not to do so.
30On December 14, 2006, the applicant sent a further e-mail to three executive members and also faxed it to the Vice-President, the personal respondent George Smith. In this e-mail, the applicant explicitly makes reference to the “harassment” that she has had to put up with on a continual basis from Ms. Kiewning. The applicant starts by making reference to Ms. Kiewning’s December 13, 2006 memo and expresses her view that it is okay for executive members to call her after hours. The applicant next makes reference to the December 12, 2006 e-mail from Ms. Kiewning telling her not to cc or bcc e-mail to her personal account, and expresses that she does this to keep a record of her communications with Ms. Kiewning. In the e-mail, the applicant refers to Ms. Kiewning continually leaving “stupid memos” on her desk. The applicant concludes by requesting the executives’ assistance with this issue.
31Mr. Smith’s evidence is that he received this e-mail by fax and subsequently spoke to the applicant by phone. Mr. Smith states that they had a discussion about the nature of the harassment, and he understood that the applicant was primarily complaining about memos that she had been receiving from Ms. Kiewning. Mr. Smith’s evidence was that he did not understand how work-related memos could constitute harassment, but in any event, he knew that Ms. Kiewning was out of the office on vacation. Mr. Smith states that he told the applicant to wait until Ms. Kiewning came back in the new year, and if there was still a problem, to get back in touch with him. I accept this evidence.
32There were a couple more minor incidents that occurred prior to the end of the year. On December 12, 2006, the applicant requested that she be permitted to work through her lunch break for three days that week so that she could leave early on the Friday, December 15, 2006. This was granted by Ms. Kiewning, though concern was expressed about how many lunch breaks the applicant would be working through and that the applicant needed to be taking breaks. Apparently, a subsequent e-mail had been sent by the applicant in which she mistakenly indicated that she would not be working through her lunch breaks, when the applicant intended the opposite. Ms. Kiewning arrived at the Local office on December 15, 2006 during what would normally have been the applicant’s lunch break and was surprised to see the applicant working. The applicant recognized the mistake, and said that she wanted to send an e-mail to correct the mistake. Ms. Kiewning told her that this wasn’t necessary. The applicant’s evidence is that when she insisted that she wanted to send a correcting e-mail, Ms. Kiewning said that she would regard the applicant as being insubordinate if she did so. This is denied by Ms. Kiewning.
33Then on December 28, 2006, Ms. Kiewning again came into the Local office while on holidays. The applicant states that she had forgotten to turn her cellphone off, and it rang while Ms. Kiewning was there. Ms. Kiewning reminded the applicant that she was not to have her cellphone on in the office. Ms. Kiewning’s evidence is that the applicant threw her cellphone into the cubbyhole on her desk, and said, “there, are you satisified?” This is disputed by the applicant, although the applicant does acknowledge that she banged her cellphone down on her desk in frustration. Ms. Kiewning’s evidence is that the applicant also had MSN running on her computer, which she had been told not to do, and Ms. Kiewning asked her to delete it. The applicant’s evidence is that this was just a pop-up asking her whether she wanted to install MSN.
34I will also note that I received in evidence a considerable amount of other e-mail communications between Ms. Kiewning and the applicant during this period of time, which were in no way critical of the applicant and in fact appear quite amicable. Ms. Kiewning often would end her e-mails to the applicant with the salutation “have a great day”, or would include a happy face in the e-mail. On December 29, 2006, Ms. Kiewning sent an e-mail with the salutation “Happy New Year!!” Overall, it appears from this evidence that Ms. Kiewning and the applicant continued to be able to communicate with each other in a professional and even amicable manner on a variety of work-related issues.
35At some point in early January 2007, the applicant heard from Mr. Mihalik that Mrs. Mihalik had contacted the spouse of one of the other National Representatives and told her that the applicant had had an affair with her husband. The applicant states that this is not true, and was very upsetting to her. The applicant was told by Mr. Mihalik that Ms. Kiewning had been involved in this. This is denied by Ms. Kiewning, who states that she had no knowledge that this had occurred.
36On the morning of January 5, 2007, Ms. Kiewning came into the Local office and wanted to discuss a work-related issue with the applicant. There is no dispute in the evidence that the applicant continued to type and look at her computer while Ms. Kiewning was talking to her. The applicant’s evidence is that she is able to multi-task and was not intending to be disrespectful.
37I do not accept this evidence. I find that the applicant was upset at what had happened and believed that Ms. Kiewning had been involved, and as a result was acting out her anger towards Ms. Kiewning by not looking at her. Ms. Kiewning asked the applicant to stop typing and pay attention to what she was saying, and the applicant complied. The applicant’s evidence is that she simply turned towards Ms. Kiewning and put her hands in her lap. Ms. Kiewning’s evidence is that the applicant replied with a snotty remark and put her hand on her hip. In either event, it appears to have been clear at that time to Ms. Kiewning that there was a larger problem at hand, and Ms. Kiewning inquired as to whether she had done anything at work to upset the applicant. The applicant replied that Ms. Kiewning had never done anything to her “at work”. When Ms. Kiewning sought to inquire further as to what she had done to the applicant, the applicant’s evidence is that she responded by saying that she didn’t want to go there and suggested that Ms. Kiewning “didn’t want to go there either”. Ms. Kiewning’s evidence is that the applicant said that Ms. Kiewning would “find out soon enough” and “won’t like what we are going to do”. The applicant denies that she said this. At this point, someone else walked into the Local office and the discussion ended.
38Ms. Kiewning left the office while the applicant was at lunch. While en route to her next appointment, Ms. Kiewning states that she received a call from Mrs. Mihalik. At this point, Mrs. Mihalik told Ms. Kiewning what had happened and said that Mr. Mihalik was extremely upset and was “going after” Ms. Kiewning. On the basis of what she was told by Mrs. Mihalik, Ms. Kiewning believed that she might be in physical danger. Ms. Kiewning states that the information she had received from Mrs. Mihalik caused her to reflect back on her discussion earlier that day with the applicant, and she believed that the applicant’s statements indicated that she was being threatened by the applicant and Mr. Mihalik. Ms. Kiewning states that she began experiencing health issues that caused her to attend the hospital. Ms. Kiewning also went to the police to report the perceived threat.
39On the afternoon of January 5, 2007, the applicant reported to several members of the executive, including the Vice-President Mr. Smith, that she had had a “run-in” with Ms. Kiewning just prior to lunch that day and described her version of the incident. The applicant didn’t ask that any specific action be taken, but did state that she was very tired of this and was running out of ideas as to how to deal with it.
40Without having knowledge of the complainant’s e-mail, Ms. Kiewning sent a letter on January 8, 2007 to another member of the executive setting out her version of the January 5, 2007 incident. In this letter, Ms. Kiewning reported that she had been to see the police about the incident, had gone to the emergency department at the hospital, and had been at crisis counselling.
41In response, the executive convened a special meeting to be held on January 9, 2007. In this proceeding, the applicant has raised an issue as to how quickly the Local executive responded to Ms. Kiewning’s complaint, as opposed to the delay in dealing with the complaint of harassment that she had made three weeks earlier on December 14, 2006. In explaining the urgency of the Local executive’s action in response to Ms. Kiewning’s letter, Mr. Smith states that this was prompted by Ms. Kiewning’s report to the police and need to seek medical treatment. He contrasted this with the applicant’s situation, where he was uncertain as to how memos on work-related matters could amount to harassment, didn’t perceive urgency in light of the fact that Ms. Kiewning was on vacation until the end of December 2006, and had invited the applicant to get back in touch with him in the new year if the problem persisted. I find that these are sensible and rational reasons for the difference in the Local executive’s response.
42As a result of the special executive meeting, the executive sent out letters to the applicant, Ms. Kiewning and Mr. Mihalik on January 9, 2007. The letters to the applicant and Ms. Kiewning both state that the executive had received complaints from the applicant about Ms. Kiewning and from Ms. Kiewning about the applicant, that the executive was obliged to investigate these complaints, and that a committee had been convened to meet with both parties on January 19, 2007. The letter to Mr. Mihalik states that it had become apparent that the operation of the Local office had been compromised by “what might be personal issues” between Ms. Kiewning, the applicant, and Mr. Mihalik. The letter asked Mr. Mihalik not to attend at the Local office unless requested and on official business.
43An issue arose at the hearing as a result of certain notes prepared by Mr. Smith in advance of the special meeting. These notes include the statement that “none of us should have to be here to deal with people’s personnel (sic) lives and I find it appalling”. It is clear that at this point, Mr. Smith and the other members of the executive were aware of the personal relationship between the applicant and Mr. Mihalik. Mr. Smith had been informed of this relationship at some point by Ms. Kiewning and also had been told directly by Mr. Mihalik himself. What is less clear is whether at this point Mr. Smith and the other members of the Local executive were aware that the applicant was alleging that she was being harassed by Ms. Kiewning because of her personal relationship with Mr. Mihalik. This had not been expressly stated by the applicant in any of her e-mail communications to the Local executive, although her evidence is that she did say this verbally to some executive members. When questioned about the statement in his notes for the January 9, 2007 meeting, Mr. Smith’s evidence was that this did not indicate an awareness on his part that the applicant was alleging that she was being harassed because of her personal relationship. Mr. Smith’s evidence is that he saw the personal relationship between the applicant and Mr. Mihalik as being none of the Local’s concern. Rather, what Mr. Smith did see as being a concern for the Local was if matters going on in people’s personal lives was spilling over into the workplace and disrupting the proper operation of the Local office.
44In the meantime, Ms. Kiewning was off on sick leave. Except for a very short period, Ms. Kiewning has not returned to work since that time. In Ms. Kiewning’s absence, the applicant took her work direction from the Vice-President, Mr. Smith. On January 16, 2007, Ms. Kiewning came to the Local office to pick up her paycheque. The applicant refused to provide Ms. Kiewning with a cheque, on the basis that it had not been authorized by Mr. Smith. The applicant’s evidence is that she sent several time sheets to Mr. Smith for authorization, including Ms. Kiewning’s, and that all time sheets had been returned with the exception of Ms. Kiewning’s. Mr. Smith does not recall receiving Ms. Kiewning’s time sheet, but states that in any event it didn’t need to be authorized as she remained the President of the Local. The evidence indicates that Ms. Kiewning directed the applicant to write the cheque, and the applicant continued to refuse. Ultimately, Ms. Kiewning left the Local office. The next day, the applicant received a fax from Mr. Smith directing her to prepare the paycheque for Ms. Kiewning, which the applicant did. Mr. Smith’s fax clearly expresses his upset that the applicant had refused to provide Ms. Kiewning with her cheque.
45The committee established by the Local executive met with both Ms. Kiewning and the applicant on January 19, 2007. In advance of this meeting, the applicant had objected to the membership of the committee, on the understanding that it would be comprised of three individuals, two of whom the applicant perceived to be friends and supporters of Ms. Kiewning. In fact, the committee was comprised of five members, one of whom was a member of the executive to whom the applicant had been sending e-mails and who was a supporter of the applicant. The applicant also requested that she be allowed to bring a representative with her to the meeting. This initially was denied by Mr. Smith, as he had denied a similar request made by Ms. Kiewning. However, ultimately the applicant was allowed to attend the meeting with her representative.
46The applicant testified that the January 19, 2007 meeting was focused on the events of January 5, 2007, which she perceived as demonstrating a bias in Ms. Kiewning’s favour. This is not borne out by the evidence. In fact, the applicant was permitted to read a letter to the committee, in which she clearly spelled out her belief that she was experiencing harassment by Ms. Kiewning as a result of her personal relationship with Mr. Mihalik. In addition, the notes taken by two committee members indicate that the applicant was given an opportunity to identify the specific nature of the harassment that she alleged that she was experiencing. In response to the committee’s question, the applicant identified only two issues. One issue was that she was being denied paid time off to attend medical appointments, which was not raised as an issue in this proceeding. The second issue related to the applicant not being given paid time off over the Christmas period, which I have found was not the practice during Ms. Kiewning’s tenure as President.
47When questioned at the hearing as to why she did not raise the other incidents of alleged harassment upon which she is relying in this proceeding, the applicant responded that she was extremely upset at the meeting and was unable to express herself. While I appreciate that the applicant may have been upset at the time of the meeting, as she was at the hearing, she nonetheless was afforded by the committee with an opportunity to detail her allegations.
48The applicant states that she provided the committee with a package of materials, which includes a detailed chronology setting out many of the incidents addressed in this proceeding. This package of materials was tendered into evidence by the applicant. Mr. Smith’s evidence is that the committee never received this package. He further states that, if the committee had received detailed material of this nature, not only would he have remembered this, but the committee would have asked questions about it. Of note from this package is that the chronology prepared by the applicant includes issues with Ms. Kiewning which pre-date Ms. Kiewning’s knowledge of her relationship with Mr. Mihalik.
49As part of the committee meetings, both Ms. Kiewning and the applicant were asked whether they were able to continue working together. Both parties said that they were. As a result, the committee prepared a handwritten letter setting this out, and recommending that specific office protocols be put in place in order to better govern the relationship between the President and the Administrative Assistant.
50In early February 2007, the full executive met and a decision was made to adopt and implement the committee’s recommendation. This entailed having the applicant sign new conditions of employment, which were largely based upon the document that she had signed when she resumed her employment with the Local in September 2005, with a few revisions. The applicant objected to signing these new conditions of employment for a number of reasons. First, the new conditions of employment repeated terms from the original document which spelled out the applicant’s starting salary and referenced a probationary period. The applicant was concerned that this meant that her rate of pay was being lowered and she was being put back on probation. There is no dispute in the evidence that these concerns were raised with Mr. Smith, and he assured the applicant that her rate of pay would remain the same and that she had already passed her probation.
51Another concern raised by the applicant was that the new conditions of employment included a term requiring her to conduct herself in a professional manner in the workplace. The applicant perceived this to be an indication that she was being found at fault in relation to the issues between herself and the President. In my view, this term merely reflects a subsisting and ongoing expectation for any employee. Finally, the conditions of employment were revised so that any further issues between the President and the applicant would be raised with the committee that had been established to address their respective concerns. This term replaced the original term whereby the President was able to select a member of the executive committee to address any such concerns, to which the applicant previously had objected. In my view, this revised term was an improvement in the applicant’s terms of employment to her favour, and afforded her access to a committee which was established and already familiar with the issues between herself and Ms. Kiewning.
52As stated previously, Ms. Kiewning did not in fact return to work following the January 5, 2007 incident, with the exception of a very brief period. However, during the first several months of 2007, the question of whether Ms. Kiewning would be returning to work was uncertain and was a source of considerable stress for the applicant. Ultimately, the stress being experienced by the applicant as a result of this uncertain situation caused her to go off work on medical leave. At the time and in this proceeding, the applicant raised an issue that she was not paid while off on medical leave, whereas Ms. Kiewning was being paid during the period that she was off on medical leave. The Local’s explanation for this is that, while the applicant’s terms of employment included benefits, these benefits did not include paid medical leave. In contrast, the Local states that Ms. Kiewning as President was entitled to paid medical leave as a consequence of the Local’s by-laws. The Local also states that, at this time, it consulted legal counsel in relation to the issue of paying Ms. Kiewning while she was off on medical leave, and was directed by legal counsel to do so. I note that since the time of the events at issue in the proceeding, there is ongoing litigation between Ms. Kiewning and the Local, which is why these parties had separate representation at the hearing.
53At times when it was thought that Ms. Kiewning might be returning to work, the applicant requested that Mr. Smith be present in the Local office for the full week. Mr. Smith was not prepared to do this, and only agreed to be present for the first day. Ultimately, this was never an issue, as Ms. Kiewning did not in fact return.
54Following her second period of extended medical leave, the applicant resigned her position as Administrative Assistant in July 2007 and re-located with Mr. Mihalik to another city.
Allegations against Ms. Kiewning
55The applicant alleges that she experienced harassment in employment by Ms. Kiewning because of “marital status”, in that she was harassed because of her personal relationship with Mr. Mihalik. In my prior Interim Decision in this matter, 2009 HRTO 491, I already have addressed the question on a preliminary basis as to whether the nature of the personal relationship between the applicant and Mr. Mihalik meets the definition of “marital status” in the Code. In light of my disposition on the issue of whether the applicant experienced harassment by Ms. Kiewning, it is not necessary for me to address this issue further.
56There is no doubt that the discovery by Ms. Kiewning of the personal relationship between the applicant and Mr. Mihalik was a source of tension and strain in the Local office. Given that Mr. Mihalik was a former President and at the relevant time a National Representative with whom Ms. Kiewning had significant issues, I do not find this to be surprising. I have found that the knowledge of this personal relationship was the reason for Ms. Kiewning to request that the applicant locate her terms of employment on October 30, 2006, was the basis upon which Ms. Kiewning began communicating with the applicant more formally through the use of memos, and was a reason for the strain in the inter-personal relationship between Ms. Kiewning and the applicant during this period of time.
57However, it is a separate question as to whether this amounts to “harassment” within the meaning of the Code. “Harassment” is defined in s. 10 of the Code to mean “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Caselaw has established that harassment involves both a subjective element, that the comments or conduct are “vexatious” from the perspective of the applicant, and an objective element, that the comments or conduct are known or ought reasonably to be known to the respondent to be unwelcome.
58In this case, there is no question that the applicant found Ms. Kiewning’s conduct to be vexatious. The question for me is whether, from an objective perspective, Ms. Kiewning knew or ought reasonably to have known that her conduct was unwelcome. I find that this objective component of the test for harassment has not been satisfied. From an objective perspective, wanting to review the applicant’s terms of employment in light of knowledge of a personal relationship with the National Representative and former President was in my view a reasonable and appropriate step for Ms. Kiewning to want to take, in order to clarify with the applicant Ms. Kiewning’s own role as President and the applicant’s direct superior and the circumstances in which it was appropriate to involve or share information with Mr. Mihalik as National Representative.
59With regard to the memos, from an objective perspective I do not find that it is inappropriate for a supervisor to engage in this kind of formal communication on work-related issues. Whether a supervisor chooses to communicate with an employee by means of verbal communication, e-mail, sticky note or memo, in my view, is up to the supervisor. While the applicant may have perceived that she was being documented so that a case could be built against her for future disciplinary action, this in fact did not transpire. The only memo that could be regarded as disciplinary in nature is the November 24, 2007 memo that I have characterized as a warning letter, which stemmed from the applicant’s own inappropriate conduct in responding to the November 5, 2007 memos by copying the entire executive committee.
60I also do not find it inappropriate for Ms. Kiewning to have involved a member of the executive committee to address her issues with the applicant on November 27, 2007. This was the mechanism for addressing such issues which was expressly set out in the applicant’s terms of employment. From an objective perspective, I cannot find that it is harassment for a supervisor to utilize a mechanism for resolving issues which exists to be utilized in the very circumstances which presented themselves in the Local office at that time.
61Nor do I find that Ms. Kiewning’s decision to keep the Local office open over the Christmas period was harassment or discrimination. The evidence does not establish that it was Ms. Kiewning’s practice as President to close the Local office over the Christmas period, and there were legitimate business reasons for keeping the office open at that time given the ongoing collective agreement negotiations.
62With regard to the two e-mail communications from Ms. Kiewning to the applicant in mid-December 2006 which were the precipitating cause of the applicant’s express allegation of harassment in her December 14, 2006 e-mail, I do not find anything inappropriate in the directions given to the applicant by Ms. Kiewning. In my view, it is entirely reasonable for an employer to be concerned about an employee copying work-related e-mail to a personal e-mail account. It also is entirely reasonable for an employer to be concerned about an employee making herself available to executive members to deal with work-related issues beyond normal work hours. While I don’t doubt the genuineness of the applicant’s desire to be of assistance to the Local and its executive, she nonetheless is an employee who needs to take direction on this matter from her supervisor, Ms. Kiewning.
63There is no doubt that there was a strained inter-personal relationship between the applicant and Ms. Kiewning during this period of time. As I have said, I do not find this surprising in the circumstances. However, having heard the evidence of both parties, in my view both the applicant and Ms. Kiewning share responsibility for this strained inter-personal relationship. I have no doubt that Ms. Kiewning was more guarded in her communications with the applicant as a result of finding out about her personal relationship with Mr. Mihalik, and that there was less casual and informal communication between the two at this time. At the same time, on the applicant’s own evidence, she avoided making eye contact with Ms. Kiewning and sometimes wouldn’t respond when Ms. Kiewning greeted her in the morning. Nonetheless, in the course of this period, there also was evidence that the applicant and Ms. Kiewning were still able to communicate with each other in an amicable manner. In the end, I find that the strained inter-personal relationship between Ms. Kiewning and the applicant was a shared responsibility and does not satisfy the objective component of the “harassment” definition.
64With regard to the January 5, 2007 incident, the evidence clearly indicates that the applicant was upset that day as a result of her belief that Ms. Kiewning had been involved in Mrs. Mihalik’s actions in speaking to the spouse of another National Representative and accusing the applicant of having had an affair with him. I find that the applicant’s upset contributed to the manner in which she responded to Ms. Kiewning on that day, and that this led to the escalation of the conflict between them. Once again, I find that there was a shared responsibility for this workplace conflict and that the objective component of the “harassment” definition is not satisfied.
65Finally, with regard to the incident on January 17, 2007 when the applicant refused to provide Ms. Kiewning with her paycheque, I find that the underlying cause of this conflict was the applicant’s belief that Mr. Smith’s authorization was required in order to provide the cheque. While this was not correct, I accept that the applicant had a genuine belief at the time that Mr. Smith’s approval was necessary. At the same time, it is entirely understandable to me that Ms. Kiewning as President of the Local would be angry that she was being denied her paycheque by the Local’s Administrative Assistant who reported directly to her. I do not find anything in this incident to support an allegation of harassment against Ms. Kiewning.
66Accordingly, I find that the applicant has not satisfied the objective component of the definition of “harassment” in respect of her allegations against Ms. Kiewning. The Application as against Ms. Kiewning is dismissed.
Allegations against the Local and Mr. Smith
67The applicant alleges that the Local and Mr. Smith failed to take reasonable steps to address the alleged harassment by Ms. Kiewning. The Tribunal’s caselaw indicates that, even if an allegation of harassment or discrimination is not supported at the conclusion of a full hearing, a respondent nonetheless may be found liable if it failed to take reasonable steps to address alleged harassment or discrimination at the time it was reported or came to the respondent’s attention: see Nelson v. Lakehead University, 2008 HRTO 41.
68The evidence indicates that the applicant first expressly raised an allegation of harassment by Ms. Kiewning in her e-mail dated December 14, 2006, which was faxed to Mr. Smith. While there is evidence that the applicant raised concerns about Ms. Kiewning with other Local executive members prior to this, there is no clear evidence that the applicant raised an express allegation that she was experiencing harassment or discrimination nor is there any clear evidence that she was requesting the Local’s assistance prior to December 14, 2006.
69Caselaw has developed at the Tribunal describing six specific factors that will be considered in assessing whether a respondent has taken reasonable steps to respond to an allegation of harassment or discrimination: Abdallah v. Thames Valley District School Board, 2008 HRTO 230; Wall v. Lippe Group, 2008 HRTO 50. In my view, these factors need to be applied flexibly in the specific context of each individual case, and should not be regarded as the equivalent of statutory requirements whereby a failure to satisfy any one of these factors automatically results in a finding of a Code violation. I note that these factors were developed in cases dealing with fairly large and sophisticated corporate respondents, where a higher level of expectation about the ability to respond was appropriate. In contrast, in this case I am confronted with a relatively small union Local with less sophistication and formality in its processes. In my view, it is important and appropriate for me to take this context into account when assessing the respondents’ conduct in response to the applicant’s allegations.
70The evidence indicates that Mr. Smith did respond promptly to the applicant, by contacting her by telephone shortly after receiving her fax. It is noteworthy that, in the communication that was faxed to Mr. Smith, the only specific incidents raised by the applicant were the two e-mails she had received from Ms. Kiewning in mid-December 2006, both of which I have found to be reasonable and appropriate. In my view, this provides context for Mr. Smith’s evidence that he didn’t see how receiving memos from Ms. Kiewning could amount to harassment. It also is noteworthy that while the December 14, 2006 communication uses the term “harassment”, no specific allegation is raised that this alleged harassment was related to any ground protected under the Code. At this time, I find that the applicant did not make it clear to Mr. Smith or the Local that she was alleging that she was experiencing harassment because of “marital status” due to her personal relationship with Mr. Mihalik, and that this allegation was not made clear to the Local until the January 19, 2007 meeting.
71Mr. Smith’s initial response to the applicant also needs to be considered in light of the fact that Ms. Kiewning was on vacation at the time and was not returning until January 2007. In this context, and without any specific information from the applicant to support greater urgency to the situation, it is my view that it was not unreasonable for Mr. Smith to advise the applicant to await Ms. Kiewning’s return in January 2007 and get back in touch with him if the problem still persisted.
72I already have addressed above the applicant’s position that the Local responded much more quickly to Ms. Kiewning’s complaint. Clearly, the Local did respond quickly, convening a special executive meeting within days. However, the circumstances reported by Ms. Kiewning supported the urgency of addressing the situation. Ms. Kiewning had reported the involvement of the police to address alleged threats from the Local’s National Representative and had been in hospital as a result of the January 5, 2007 incident. In my view, this provides a legitimate explanation for the quick response of the Local following the January 5, 2007 incident.
73Even then, however, I do not find that the evidence supports that the January 5, 2007 incident became the Local’s sole focus. Rather, it is clear from the correspondence sent out by the Local on January 9, 2007 and from the questions asked at the January 19, 2007 meeting that the Local was addressing not only the complaint by Ms. Kiewning against the applicant, but also the complaint by the applicant against Ms. Kiewning. I have found that at the January 19, 2007 meeting, the applicant was afforded an opportunity to raise her allegations against Ms. Kiewning. While the applicant may not have felt able to fully express herself at that time because she was legitimately upset, this does not mean that the Local can be held responsible for failing to address concerns that were not clearly articulated by her.
74In any event, I find that, after meeting with both parties and hearing from both that they believed they were able to continue to work together in a professional manner, it is my view that the Local responded appropriately expressing a desire to create an office protocol and by keeping the committee established by the executive in place to address any further issues. As indicated above, as part of this response, I do not find that it was unreasonable or inappropriate for the Local to require the applicant to sign new conditions of employment which set out expectations for her conduct in the workplace and which incorporated the new mechanism for any further issues to be brought to the committee.
75There are two areas where the Local is open to criticism under the factors identified in Wall and Abdallah. First, Mr. Smith candidly acknowledged that he was not aware that treating someone differently because of a conjugal relationship with a specific person could constitute harassment or discrimination because of marital status in violation of the Code. Nonetheless, I find that the Local operated from the understanding that the applicant’s personal relationship with Mr. Mihalik was none of its business, except to the extent that it interfered with the operation of the Local office. I find that this understanding sufficiently encapsulates the law in this area for the purpose of this decision.
76Second, the Local did not, at that time, have an express policy for dealing with human rights issues. Nonetheless, I find that the Local did adopt a reasonable process to respond to the allegations raised, by establishing a committee, by meeting with both parties, by affording each party an opportunity to raise their concerns, and by making recommendations and taking steps to address the situation as they understood it at the time.
77Accordingly, I find that the Local and Mr. Smith did not fail in their obligation to take reasonable steps to address the allegation of harassment that was raised by the applicant.
78With regard to the applicant’s allegation that she was denied paid medical leave, there is no evidence to support that this constitutes discrimination because of marital status or any other violation of the Code. The simple fact is that paid medical leave was not part of the terms and conditions of the applicant’s employment with the Local as Administrative Assistant. The fact that different terms and conditions may apply to the President which caused the Local to determine that Ms. Kiewning was entitled to paid medical leave does not amount to discrimination in violation of the Code
79For all of these reasons, the Application is also dismissed as against the respondent Local and Mr. Smith.
Dated at Toronto, this 7th day of October, 2009.
“Signed by”
Mark Hart
Vice-chair