HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Susan Campe
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Borland Canada Inc., Borland Software Corporation,
David Schmiedendorf and Christopher Corey
Respondents
DECISION
Adjudicator: Brian Eyolfson
Indexed As: Campe v. Borland Canada
AppearanceS BY
Susan Campe, Complainant ) On her own behalf
) Sharon Abrahams,
Ontario Human Rights Commission ) Counsel, and Jason Tam,
) Student-at-law
) Dean T. Palmer and
Borland Canada Inc., Christopher Corey, ) Kate McNeill, Counsel,
and David Schmiedendorf, Respondents ) and Carina Lentsch,
) Student-at-law
) Dean T. Palmer, Kate
Borland Software Corporation, ) McNeill, and Melissa Frugé,
Respondent ) Counsel, and Carina
) Lentsch, Student-at-law
INTRODUCTION
1The complainant, Susan Campe, filed a complaint with the Ontario Human Rights Commission (the “Commission”), dated June 17, 2003 (amended October 12, 2006), alleging discrimination on the basis of sex in employment, and reprisal, contrary to sections 5(1), 8 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Commission referred the complaint to the Tribunal, by letter dated April 30, 2007 (amended May 14, 2007).
The Parties' Positions
2The Commission submits that the complainant was discriminated against on the basis of gender in relation to her compensation while employed with Borland Canada Inc. (“Borland”). More particularly, the Commission submits that the complainant was subjected to discrimination, as of April 1, 2001, when she joined Borland’s Enterprise Sales Group as an Account Executive (“AE”). She experienced further discrimination in the summer of 2001 when Borland hired three new male Business Development Managers (“BDMs”) and Yves Ferland (“Ferland”), who was an AE, became a BDM. The Commission submits that, although the female AEs had different titles, they did the same job as the male BDMs. However; they were not paid the same.
3The Commission submits that the complainant was subjected to discrimination and reprisal by Borland and its president, the personal respondent Christopher Corey (“Corey”), when her employment was terminated after she complained about the gender disparity in pay. In addition, the complainant was subjected to a poisoned work environment, hostile to women, with sexist comments being made by Corey and Borland’s previous president, John Fisher (“Fisher”). The Commission further submits that negative comments made to the complainant by Fisher and the personal respondent, Borland’s controller David Schmiedendorf (“Schmiedendorf”), also resulted in a poisoned work environment based on gender.
4The respondents submit that the Commission and the complainant have failed to prove on a balance of probabilities that the complainant was subjected to differential treatment, or any other form of discrimination, on the basis of gender with respect to her compensation, or that the termination of her employment was the result of reprisal. The respondents deny that they have contravened the Code and submit that the complaint is a retaliatory gesture filed by a former employee, disgruntled that her employment was terminated due to restructuring.
PARTIES' MOTIONS
5In an Interim Decision, 2008 HRTO 17, the Tribunal held that the respondents’ proposed motion to strike certain paragraphs of the complainant’s pleadings, prior to the respondents filing their pleadings, was premature. The respondents filed their pleadings, maintaining their request that the Tribunal strike certain paragraphs of the complainant’s pleadings. By Interim Decision, 2008 HRTO 40, the Tribunal ordered that a portion of one paragraph of the complainant’s pleadings be struck and that the Commission and the complainant provide further particulars with respect to five paragraphs of the complainant’s pleadings.
6On May 26, 2009, after considering the Commission’s motion for production, the Tribunal ordered that the respondents provide the following arguably relevant documents, that existed, to the other parties: copies of all resumes, offers of employment, hiring dates, compensation plans for 2001-2004, and 2003 T4 tax forms for six particular individuals, and the same information and, in addition, job descriptions, for six other individuals; compensation plan for B.D.; and, the complainant’s resume.
WITNESSES
7The complainant and the personal respondent, Corey, gave evidence at the hearing. In addition, the following witnesses gave evidence on behalf of the Commission and the complainant: Ferland, Scott Welch, Robert Doyle, Michael Back, Paula McKay, and Kathy Wise. Fisher testified on behalf of the respondents. The personal respondent, Schmiedendorf, did not attend the hearing. In light of the considerable personal, employment-related information in the evidence, I have referred to the complainant’s coworkers at Borland, who did not testify, by their initials only.
DECISION
8I find that the respondents subjected the complainant to a poisoned environment, when the personal respondent, Schmiedendorf, made inappropriate gender-related comments on one occasion, and discrimination, when she raised allegations of unequal pay based on gender which were not appropriately dealt with, contrary to sections 5(1) and 9 of the Code. I also find that Schmiedendorf’s comments subjected the complainant to a threat of reprisal, contrary to sections 8 and 9 of the Code.
9As a result of the above violations, the corporate respondents and Schmiedendorf are jointly and severally liable to pay the complainant $5,000.00 and the corporate respondents are jointly and severally liable to pay the complainant an additional $5,000.00 in damages. These awards are subject to interest.
ANALYSIS
Relevant Code Provisions
10The relevant provisions of the Code provide as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex.
8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for doing so.
9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
Assessment of Credibility
11Many of the issues addressed in this Decision turn largely on my assessment of the credibility of the complainant, the personal respondent, Corey, and the other witnesses. In assessing credibility, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 356-357:
(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
12I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations as to the manner in which the witnesses gave their evidence.
13More recently, the Tribunal commented that, in addition to the factors and approach highlighted in Faryna, corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have self-interest in testifying for one of the parties, are relevant considerations in assessing credibility. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference – that the party did not call a particular witness because the witness would not have been supportive to that party’s case. See Shah v. George Brown College, 2009 HRTO 920, at para14.
14In assessing the evidence, I am also mindful that the passage of time may have affected the parties’ and witnesses’ recollections and may account for some of the discrepancies in the evidence, as much of the evidence concerns events that occurred approximately six to eight years prior to the hearing. Finally, in addition to the oral evidence of the parties and witnesses, I have considered the extensive documentary evidence submitted at the hearing which has been of assistance.
Background
15Borland is a wholly owned subsidiary of a U.S. corporation, Borland Software Corporation (“Borland U.S.”). Fisher replaced Kevin Cornell as Borland’s president or “country manager” in early 2001. On November 18, 2002, the personal respondent, Corey, replaced Fisher as Borland’s president.
16The complainant testified that she saw a Borland job ad, submitted her resume and was interviewed. She commenced employment with Borland on August 28, 2000, as a Corporate Account Manager, selling software in Borland’s Tools Products Division, and did “outbound” or “outside” sales.
17Borland also had an Enterprise Sales Group tasked with selling different products that the complainant did not sell initially. After Fisher joined, he decided to allow everyone to sell all of Borland’s software products. As a consequence, the complainant’s job changed as of April 1, 2001. She moved upstairs to sit with the Enterprise team as an AE. Her employment was terminated on January 8, 2003.
PowerPoint Presentation and Disclosure of Pay Differences
18The complainant became aware of the salaries of her peers around the first two weeks of February 2002 when a PowerPoint presentation, delivered to Fisher’s boss, Chuck Hickson (“Hickson”), was left on a generally accessible intranet server. She testified that it contained the salaries of the outbound sales people, including base and commission pay at 100% of plan. Her salary was shown at $80,000 base pay and $80,000 commission (at the time, her actual compensation was $70,000/$50,000). She believed all the men’s said $150,000/$150,000, and Ferland’s and B.S.’s (male) were higher. The numbers below her name were so low and she was aghast at seeing this.
19Both Kathy Wise (“Wise”) and Robert Doyle (“Doyle”) testified about the disclosure of the salary information, what in their view were discrepancies between men’s and women’s salaries and the salaries paid to the BDMs as compared to others. The information had a negative impact on employee morale.
20Fisher confirmed he had prepared the presentation for the California head office and described it as a conglomeration of information that did not set out individual salaries. It was the burden total team cost and it might have named the team leader and that team’s cost. He agreed that the presentation caused problems among two or three people but they misconstrued the information. He testified that when he met with the complainant to talk about compensation, it was brought up.
Inappropriate Comments
The Fire Her on the Spot Comment
21The complainant testified that she was absolutely shocked by the PowerPoint presentation but was so busy that quarter that she basically put it out of her mind until March 15, 2002. That day Schmiedendorf came to her office to advise her that her salary was being increased to $80,000.00 base pay/$80,000.00 commission. She testified that this “rang a bell” because she had seen those numbers under her name on the PowerPoint presentation and she pulled it up and showed it to him.
22She told Schmiedendorf that she was really pleased to have her salary raised but it was not fair and comparable amongst her peers and the men in the office. She testified that he was a bit taken aback that she was aware the men’s salaries were so significantly more than hers. While still at her computer, she brought up a website that talked about the law in Ontario and spoke to Schmiedendorf about it being the law in Ontario that women are to be paid the same as men.
23She testified that, at first, he didn’t know what to say to her. As they discussed it, he said to her that she better not talk about this being the law, or ask for fair pay under the law. Schmiedendorf suggested that if they found out in California about her talking like that they would fire her “on the spot”. She testified that she believed he genuinely liked her and felt that he was giving her sound advice.
24In cross-examination, the complainant explained that Schmiedendorf did not really threaten her but told her in a nice way to stop talking about it. His comment was not said in a nasty or threatening way. She felt that he was wearing the human resources “hat”. She disagreed with the suggestion that the discussion was more along the lines that she had just been given a raise and if she complained she was not fairly paid compared to other people, it was not going to go over well. Although the respondents do not agree that Schmiedendorf warned her, the complainant was asked, if he did warn her, was it possible he was really warning her about generally complaining about money, rather than the gender issue. She clearly testified, “No, it was really about the gender issue.”
25She believed Schmiedendorf went directly to speak to Fisher about their conversation. Fisher confirmed that Schmiedendorf told him that the complainant raised pay and that is was a problem for her. Schmiedendorf did not testify.
26The complainant testified that she had a second conversation with Schmiedendorf about equal pay and implored him to assist her to get it fixed. He told her she needed to deal with Fisher.
27Wise testified, on at least four occasions, that she complained to Schmiedendorf about the way a male employee treated her. Her evidence, although it varied somewhat each time, was that he responded in a similar way – that complaints would result in her being “fired”, fired “on the spot” or “fired immediately”. This testimony would appear to support the complainant’s testimony as it is very similar and consistent with her evidence that Schmiedendorf told her when she complained about pay that she would be fired “on the spot.” On the other hand, I have some significant concerns with Wise’s evidence, in light of her obvious antipathy toward the respondents and her close relationship with the complainant, as set out below. In the end it is not necessary for me to rely on Wise’s evidence to determine this issue.
28The complainant’s evidence of her conversation with Schmiedendorf was detailed and consistent. It was also consistent with the allegations detailed in her 2003 complaint and her other testimony, in particular, that she was afraid her employment would be terminated for raising the issue of pay equity. In the absence of any evidence from Schmiedendorf to refute the complainant’s evidence, I am satisfied the complainant raised concerns with him about the fairness of her compensation, relative to that of the men in the office, and spoke to him about it being the law that women are to be paid the same as men. I also find that Schmiedendorf told her that she better not talk about the law that women are to be paid the same as men, or ask for fair pay under the law, and suggested to her that if they found out in California about her talking like that they would fire her on the spot.
April 2002 Conversation with Fisher
29The complainant testified she had a conversation with Fisher the first week of April 2002. The conversation “started positive” because the Canadian division was reporting excellent numbers and her sales results were “amazing”. Fisher confided that Schmiedendorf had spoken to him about their conversation and they began a conversation about her not being paid equally to the men. She testified that Fisher said she was “making very good money for a woman and most women don’t make what she earned, or something to that effect.” He compared her with a male employee, S.D., who was earning a significantly higher amount than her but because she had outperformed him in the quarter, she was going to take home more money. She testified that at no time did he suggest she wasn’t doing exactly the same job as the men, nor did he suggest fixing her salary to be equal to that of the men. The conversation got slightly aggressive and hostile and they disengaged. She agreed it was tense.
30On cross-examination the complainant testified that she told Fisher she was doing the same job as the men and she deserved to be paid the same as the men. She agreed it was possible she said “guys” instead of “men”. She reiterated that he had said she was making “very good money for a woman”. She added that she told Fisher that, if S.D. had her sales results he would have taken home much more than she had, and it was not fair to pay her less money for doing the same job.
31She later learned that Fisher’s conversation with her was “a lie” because S.D. started in September 2001 and for the quarter in which she had been so successful, S.D. was given a guarantee of 80% commission. She had no such guarantee.
32The complainant testified that she had several other conversations with Fisher about her salary in April, May and June of 2002. She spoke with him about a business issue and then they spoke about her salary. She suggested that he was the father of daughters, and what kind of world did he want for them, and did he not want them to enter the work force and be treated fairly under the law. She testified that he was frustrated with her for asking for the same commission and base pay as the men. One time he said he did not have the budget to change it.
33The complainant testified that she stopped being aggressive about the issue in June 2002, after Wise’s employment was terminated. She was afraid that her employment would be terminated.
34Fisher testified that he knew the complainant had commented on compensation throughout 2001 and 2002 and agreed she complained and talked to him about compensation. He testified that two male employees, B.S. and R.J., did as well. A lot of communication with sales reps is about territories and compensation and complaints about compensation are not unusual. Although Fisher recalled the complainant raising concerns about her compensation, he testified that he could not recall her concerns being related to gender. He thought he would recall if they had been. He denied he was fed up with the complainant complaining and testified he enjoyed working with her.
35Asked specifically if the complainant complained about not being paid as much as the men, Fisher testified that he didn’t recall it framed like that – “the men” – but the “new people”. He wouldn’t have taken it as a “guy/girl thing”. He didn’t recall her stating “why are those men”, but “why are those guys”, implying people.
36Fisher also testified that he couldn’t recall discussing equal pay for work of equal value with the complainant. Asked if he told the complainant that she was making good money he testified that he’s sure he said she was making the most money, other than him, that quarter. He denied telling the complainant she was “making good money for a woman” and testified that he would never say that. He explained he had worked for two women and it was not unusual for him to see women making good money. He testified that people at that level of sales were not making as much money as people more senior. He had B.S. “in the same boat”. B.S. resolved it by deciding to get a job in the U.S. B.S. made the same point that he felt he should be earning more money.
37In my view, whether or not the complainant used the word “men” or “guys” when discussing her pay concerns with Fisher, it would have been reasonable for Fisher to understand that her pay concerns were related to gender. The complainant testified, and I have no reason to doubt, that she raised with Fisher that he was the father of daughters and did he not want them to enter the work force and be treated fairly under the law. Her evidence that she raised gender-related pay concerns with Fisher is also consistent with her evidence as to what she said to Schmiedendorf, in referring to the law requiring equal pay. Fisher did not deny that the complainant raised concerns about pay that were related to gender. Rather, his evidence was that he could not recall her compensation concerns to be related to gender. Whether or not Fisher recalled, at the time of the hearing, that the complainant raised concerns with him about her compensation that were gender-related, I find based on the evidence, that she did raise gender-related compensation concerns with Fisher and that it would have been reasonable for Fisher to understand that her concerns were gender-related.
38I do have concerns, however, with the complainant’s evidence that during one of her conversations with Fisher, he told her she was making very good money for a woman and most women don’t make what she earned, or something to that effect. The complainant was not clear in her evidence as to what Fisher actually said and testified he said “something to that effect”. In her complaint, signed in June 2003, wherein she describes her conversation with Fisher, she alleges that “Fisher responded by pointing out that I was earning more in salary and commission than one particular BDM.” There is no mention of the alleged comment. Fisher was clear in his evidence that he “would never say that.” In the circumstances, and based in particular on the lack of clarity in the complainant’s evidence as to what was actually said by Fisher, I do not accept that Fisher made an inappropriate gender-related comment when discussing the complainant’s pay concerns with her.
Other Inappropriate Comments Related to Gender
39Wise testified that she couldn’t recall comments in the workplace that were untoward towards women. She did testify, however, that she complained to Fisher about the job title being changed to BDM for the men and was basically told that she belonged at home with her son, the same as his wife. She also testified she asked Fisher why the men were making $155,000 when three quarters of them had not brought in one dime of business and this was another time Fisher told her that she belonged at home with her son like his wife. She testified he made the comment a third time when she went back after being off ill in 2002 and was put on notice and told if she didn’t make her quota she was out.
40Fisher testified Wise’s employment was first terminated in 2002 because her sales had been unsatisfactory. It was a difficult move because her husband worked for the company, but “again if you don’t sell”. He denied the decision to terminate Wise’s employment had anything to do with her gender. Wise acknowledged that she didn’t make her quota and was given a severance package which she refused. Fisher told her to take it or leave it and she left it. She sought legal advice on how to ask for a proper severance, but Fisher wasn’t budging so the lawyer contacted Fisher and, in the end, a significant severance was negotiated. Wise agreed it was an unhappy departure.
41Wise returned on contract in 2003 and was “severanced” in 2004. She testified that she was let go after being off work for a few months for stress-related reasons. When she returned, there was another notice for not making her numbers. She testified she was happy to leave because she was walking away from the stress and she worked hard and didn’t get acknowledged for it. She addressed it with Corey over and over again. She testified that Corey “didn’t have the balls” to deal with her directly.
42With respect to Wise’s relationship with the complainant, the complainant testified that Wise is a personal friend of hers, they met at Borland, have been friends since and they’ve helped each other out.
43While Fisher was not asked about the alleged comments concerning Wise belonging at home with her son, I do not accept Wise’s testimony regarding the comments. Her evidence regarding the comments was given in a rather flippant manner. With respect to the context in which the comments were alleged to have been made, Wise’s evidence was significantly lacking in detail. In addition, the comments seem inconsistent with the limited evidence that she did give concerning the context in which the comments were alleged to have been made. Taken together with my concerns about Wise’s obvious antipathy toward the respondents, expressed throughout her evidence, and her close relationship with the complainant, I am not prepared to accept that Fisher suggested she belonged at home with her son.
44Ferland testified that Corey was a “macho man” and every time a woman would walk out and they were left with only the boys, Corey would make bad jokes about women. He didn’t remember the jokes but testified that he remembered Corey saying sexist things about C.G. but he didn’t remember exact words.
45When asked about the general atmosphere with respect to women in the office, Doyle testified that the atmosphere was okay until Corey became manager, after which regular sexist jokes were pretty common. He testified that every Friday they had a meeting between the directors and the managers and one manager, a woman, would come to those meetings once a month. When she was not there, they didn’t discuss business. He testified “it was listening to jokes about asses and boobs and dogs and you name it.” He testified that it was about 75% jokes and 25% business.
46Doyle also testified that Fisher never made inappropriate comments and that Schmiedendorf started making “those comments” once Corey showed up. He was surprised that some people would start making those types of jokes and comments. He explained that Schmiedendorf would laugh at Corey’s jokes and that a lot of guys in those meetings changed behaviour when Corey was around.
47Corey testified that management meetings were irregular when he first joined Borland but Fisher had weekly Friday meetings which continued for some time. He was living in Ottawa and didn’t move to Toronto until the fall of 2003. He worked at home on Mondays and Fridays and was only in Toronto three or four days a week. If he managed to stay in town, he may have attended them or may have joined by phone. He testified that he was not a proponent of management meetings and that some of the meetings wouldn’t have been taken overly seriously because he didn’t think they were of much value.
48When asked if there were any inappropriate comments, jokes or innuendo in those meetings, he answered, “no, not that I recall ever.” In cross-examination, he denied making inappropriate comments about women in the workplace and testified that he did not recall such comments or making such comments at meetings.
49Doyle and Ferland’s employment with Borland did not end amicably and I appreciate that there may be some animosity between these two men and the respondents, particularly Corey. I have taken this into consideration when weighing their evidence. However, I do not believe that both Ferland and Doyle, who were subject to a witness exclusion order, would have entirely fabricated their evidence concerning inappropriate comments made by Corey in the workplace when no women were in attendance. I accept their evidence to a degree and find that sexist remarks were made by Corey at some meetings at Borland. This is not inconsistent with Corey’s evidence that he did not think the meetings were of much value and that some of the meetings would not have been taken overly seriously. This is also consistent with Doyle’s description that not a lot of business was discussed at some meetings.
Poisoned Workplace
50In sum, I have found that Schmiedendorf told the complainant that she better not talk about the law that women are to be paid the same as men and that if they found out in California about her talking like that they would fire her on the spot. However, aside from these inappropriate comments, and Fisher’s alleged inappropriate comment to the complainant which I did not find was made, I heard no other evidence form the complainant concerning inappropriate gender-related comments in the workplace at Borland.
51With respect to a poisoned work environment, the Ontario Board of Inquiry commented as follows in Moffatt v. Kinark Child and Family Services (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205:
It is now settled law that discriminatory working conditions can be created by derogatory comments which target a person on the basis of their identification with a prohibited ground of discrimination. Comments which are, for example, racist, sexist, homophobic or mocking of a person’s disabilities, whether written or oral, whether said directly to an employee or behind their back, can be the basis for a finding of employment discrimination. An isolated remark may not, on its own, create a poisoned work environment; each case requires consideration based on all the circumstances, including the nature and frequency of the remarks and the impact on the complainant.
52I am satisfied that Schmiedendorf’s comments to the complainant that she better not talk about the law that women are to be paid the same as men and that if they found out in California about her talking like that they would fire her on the spot, created a poisoned work environment for the complainant based on gender. It is clear from the complainant’s evidence that she had serious concerns about equal pay based on gender. She raised her concerns with Borland’s Controller, Schmiedendorf. Fisher testified that Schmiedendorf had responsibility for payroll and human resources. She testified that she had a second conversation with Schmiedendorf about equal pay and implored him to assist her to get it fixed. He told her she needed to deal with Fisher.
53I find that Schmiedendorf’s comments undoubtedly caused the complainant apprehension over raising concerns about equal pay based on gender. She testified that she stopped being aggressive in her conversations with Fisher in June 2002, after Wise had been terminated as she didn’t want to be unemployed and she was afraid that she would be terminated. She testified that Wise also made a request for equal pay and told her that she talked to Fisher several times. In light of Schmiedendorf’s comments, it would not have been unreasonable for the complainant to believe that Wise’s termination was related to her complaints of equal pay. The complainant described her subsequent conversations with Fisher as mild and cheerful. I am satisfied that Schmiedendorf’s inappropriate comments, made in the context of the complainant raising concerns about gender discrimination, and the “chilling” effect of the comments, created a poisoned environment for the complainant, based on gender, contrary to sections 5(1) and 9 of the Code. I find that the corporate respondents are liable for this violation, in light of section 46.3 of the Code.
Reprisal
54In addition, section 8 of the Code provides that every person “has a right to claim and enforce his or her rights under this Act… without reprisal or threat of reprisal for doing so.” In order to prove a violation of section 8 of the Code, there must be evidence of an actual or threatened prejudicial act. In addition, a nexus must be established between the actual or threatened prejudicial act and the claiming or enforcement of the complainant’s rights under the Code. See Entrop v. Imperial Oil (No. 7), (1995) 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd. Inq.) at para. 37. Further, in Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.), where the issue was whether the termination of the complainant’s employment was a reprisal, the Board of Inquiry held that “the complainant must adduce evidence to show that, on the balance, the respondent intended to retaliate.” On appeal, the Divisional Court held as follows:
Although it is clear that in human rights law generally there is no need to prove an intent to discriminate, we have great difficulty appreciating how there can be breach of section 8 without an intent to perpetrate the prohibited conduct… There is, in our opinion, nothing incorrect or unreasonable about the Board’s finding that the onus was on the appellant to prove an intent on the part of the respondents. (see Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), at para. 11.)
55Following the reasoning of the Board and the Divisional Court in Jones, the Board of Inquiry in Ketola v. Value Propane Inc., 2002 CanLII 46510 (ON H.R.T.), found that threats of criminal prosecution and retribution constituted reprisal within the meaning of the Code.
56In a recent Decision of the Tribunal dealing with reprisal, Noble v. York University, 2010 HRTO 878, the Tribunal commented as follows:
The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation. It protects the integrity of the process before the Tribunal, as well as in other complaint procedures that may be established under human rights policies. An individual need not prove that their rights have in fact been infringed to claim protection of section 8. As the Court has said, “Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.” See: Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), at para. 4.
The Tribunal also held that in proving reprisal, there is no strict requirement that the complainant has filed a complaint or application under the Code. See also Bertrand v. Primary Response, 2010 HRTO 186, at para. 55; Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at para. 36; and Chowdhury v. Windsor Public Library Board (1995), 96 C.L.L.C. (Ont. Bd. Inq.) at para. 230-0004.
57I find that when the complainant spoke to Schmiedendorf about it being the law in Ontario that women are to be paid the same as men, she was claiming rights under the Code. See Nishimura v. Ontario (Human Rights Comm.), (1989) 1989 CanLII 4317 (ON HCJ), 11 C.H.R.R. D/246 (Ont. Div. Ct.) In the circumstances, I also find that when Schmiedendorf told the complainant that she better not talk about the law that women are to be paid the same as men, or ask for fair pay under the law, and suggested to her that if they found out in California about her talking like that they would fire her on the spot, she was subjected to a threat of reprisal for claiming rights under the Code, contrary to sections 8 and 9 of the Code. It is clear that the comments were directly related to the complainant claiming her rights under the Code and it was made very clear that negative consequences would follow from doing this. I am satisfied that the comments were made intentionally to discourage or intimidate the complainant with respect to claiming her rights under the Code and was therefore contrary to sections 8 and 9 of the Code. I find that the personal respondent, Schmiedendorf, and the corporate respondents are jointly and severally liable for this violation, in light of section 46.3 of the Code.
Failure to Investigate Complaints of Discrimination
58The Commission also submits that an employer must respond to complaints of discrimination lodged by its employees and that the failure to do so will itself result in liability under the Code. Human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination in the workplace, and that a failure to do so will itself result in liability under the Code. See Moffatt, supra, at para. 234; Abdallah v. Thames District School Board, 2008 HRTO 230, at paras 87-99.
59In Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44, at para. 160, an Ontario Board of Inquiry identified six elements of a reasonable response:
(i) the response must be prompt;
(ii) there must be corporate awareness that the conduct complained of is prohibited;
(iii) the matter must be dealt with seriously;
(iv) there must be a complaint mechanism in place;
(v) the corporation must act so as to provide a healthy work environment; and
(vi) management must communicate its actions to the complainant.
60It is clear from the evidence that the complainant raised concerns of gender discrimination in pay with Borland’s management. Whether or not there was corporate awareness that the conduct complained of was prohibited, I find that none of the remaining elements above were evident in the response to these concerns. There is no evidence that there was a complaint mechanism in place. It is clear from the evidence that the complainant’s concerns about equal pay were not dealt with seriously and were never appropriately dealt with.
61Although I have found, as set out below, that differences in the complainant’s compensation relative to others were not related to gender, in my view, it was entirely reasonable in the circumstances for the complainant to raise such concerns with her employer. I find that once the complainant raised her concerns about equal pay with Schmiedendorf and Fisher, they had a responsibility to take reasonable and adequate steps to address her concerns. I find that they failed to do so, and that their failure to do so is contrary to sections 5(1) and 9 of the Code. The corporate respondents are liable for this violation, in light of section 46.3 of the Code.
Other Allegations of Differential Treatment
62The complainant submits that account assignments and commission decisions were made in favour of men. In her evidence, however, she testified that when R.S., S.D. and B.D. were hired, there was a sensible geographic reshuffling of accounts. Fisher testified that when R.S. came on, they took away some accounts from everybody, except Ferland because he was out east. He agreed that, typically, with people coming on and leaving accounts were transferred. He testified that whenever an account was taken people would complain.
63Paula McKay, who was in the “admin” department and provided support to the Corporate Sales Team, testified that the female sales representatives did not seem to be given the same respect as their male counterparts. With respect to the transfer of accounts, she provided an example of Wise loosing a large account to a male account rep. However, she also testified that the complainant ended up with an account that had been Ferland’s and it was her second biggest account when she left.
64With respect to the allegation that commission decisions were being made in favour of men, the evidence is quite sparse. Other than two incidents referred to by Wise, concerning accounts that she had worked on, there does not appear to be any other evidence concerning commission decisions being made in favour of men.
65A review of the evidence confirms that there was a lot of shuffling of accounts, particularly when new sales representatives were hired. The evidence shows accounts were transferred between individuals, irrespective of gender. I am not satisfied the evidence shows that account assignments and commission decisions were made in favour of men and, more particularly, I do not find that the complainant was subjected to discrimination in terms of account assignments and commission decisions.
Differential Compensation
Salaries and Commissions
66The base salaries and commission eligibilities of the complainant and her co-workers are, for the most part, set out in the documentary evidence and do not appear to be in dispute. The complainant began at an annual salary of $50,000 and was eligible for an annual commission of $50,000 when she was selling Tools. By email dated June 21, 2001, Fisher confirmed with Schmiedendorf that the complainant’s base salary should be changed to $70,000, retroactive to April 1, 2001, when she joined the Enterprise Sales Group. Her commission eligibility remained at $50,000 annually. Around March 15, 2002 her base salary was increased to $80,000 with an equivalent increase in commissions retroactive to January 1, 2002.
67It appears undisputed that both B.S (male) and M.V. (female) received $80,000/$80,000 throughout their employment with Borland. B.S. was hired at the same time as the complainant but started in the Enterprise group. M.V. joined Borland two weeks after the complainant and worked in Enterprise since September 2000.
68No documents were entered into evidence concerning the compensation of R.J., another male co-worker. However, the respondents indicate in their pleadings and submissions that he received $50,000 in salary and $25,000 in commission eligibility and this does not appear to be disputed. Fisher also testified that R.J.’s total compensation was about $75,000. The Commission submits, however, that R.J.’s job was inside sales and he was junior to B.S. Although no documents were entered into evidence concerning Wise’s compensation, it appears based on the parties’ submissions that, in 2001, her compensation was either $50,000/$50,000 or “50/70”, and, in 2002, her compensation was $70,000/$55,000.
69Ferland started working at Borland in April 1999 as an AE for eastern Canada. His salary was $80,000/$80,000 in U.S. dollars. He testified that he was paid in the range of $115,000 to $125,000 in Canadian dollars. R.S. (male) was hired as a BDM at $125,000/$125,000. Ferland was then also called a BDM and received the same salary as R.S. Both S.D. and B.D. (males) received $125,000/$125,000 as compensation.
The Complainant Joins the Enterprise Sales Group
70The complainant joined the Enterprise group as an AE when Fisher made some changes and formed three sales teams. Fisher testified that he moved Wise from selling services to working with Ferland, the complainant from selling just Tools to work with M.V. and he hired R.J. to work with B.S. The Commission submits that the complainant was not junior to M.V and was doing the same work and selling the same products as Ferland, Wise and B.S. The complainant testified that her compensation should have been the same as M.V.’s when she started in Enterprise.
71The complainant described selling Enterprise as a tough job. She continued to sell a lot of Tools. She sold Enterprise before, but selling Borland’s Enterprise products was new to her. One of the big differences between selling Tools and Enterprise products is that when selling a tool, you are selling a product that can be used by a single individual. If an organization is looking at putting tools on the computer of a single individual, it had a price point between $500 and $5,000. It’s a quick decision and a short selling cycle, totally different from the Enterprise products which are platform products for a company to deploy software programs on. With Enterprise, the decision would be made company wide, it was a bigger decision and it was a lot more difficult to find clients not already committed to Borland’s competitors, or to present compelling reasons to switch to Borland’s products. Typically, it was an almost eighteen month to two year selling cycle. She agreed that in software sales, at Borland, there was a relatively high turnover rate.
72There is some dispute in the evidence as to whether or not, when the teams were formed, the complainant was junior to M.V. I heard a lot of evidence about the respective roles within the teams and the approaches to sales taken by the three teams. The complainant testified that she had the same job as B.S. and Ferland. She also testified that Fisher asked her to partner with M.V., that she was never junior to M.V. and that she and M.V. reported directly to Fisher. She testified that when M.V.’s employment was terminated, her job did not change. She continued to work on most of the accounts they had worked on together and passed some accounts to new hires.
73In my view, whether or not all of the teams formed by Fisher had individuals designated as either “senior” or “junior” is of little assistance. The evidence indicates that each team was somewhat different in terms of the focus of the individuals. Whether or not the complainant was recognized as a “junior” person on her team, it is clear from the evidence that M.V. had more experience than the complainant in Enterprise sales with Borland. The complainant did testify that Fisher asked her to partner with M.V. to assist with some sales efforts M.V. had underway. Also, according to the evidence of both the complainant and Fisher, after she joined the Enterprise group, she continued to sell a lot of Tools. Fisher testified that he thought M.V. focussed on some of the large accounts. He also explained that the industry perceived Enterprise products as being more strategic than the Tools side of the business.
74With respect to the factors that go into setting compensation for sales people, Fisher referred to factors including available budget, experience, quota and what they have done in the past for the company, and at other companies, and market conditions in terms of what you have to pay someone when hiring. He also referred to what people have earned in the past, who they are selling to, their sales process and methodology, and the reputation of the company they are working for.
75Fisher testified that, Ferland, who was in Montreal, was the senior rep and would have been earning the most. Ferland was paid more than B.S. because he had their largest accounts, he had a track record of selling Enterprise products and he had large Telecom accounts. He also had more tenure than B.S., M.V. and the complainant, but not Wise. Fisher explained that time with the company, the companies being sold to, and quotas were all things that would have come into play.
76When asked why B.S. and M.V. were paid more than the complainant, Fisher testified that when he inherited them, their compensation was already hierarchical and B.S. and M.V. had a more Enterprise-type of sales background. The complainant acknowledged that one reason for her difference in salary, relative to M.V. in 2001, could be that individuals entering the company in Enterprise start higher than if promoted internally. However, she also testified that it could be that Fisher discriminated and the previous president didn’t.
77With respect to the Commission’s and the complainant’s submission that the complainant was doing the same work and selling the same products as the other AEs, the evidence indicates that, insofar as Fisher created three sales teams that could sell both Enterprise and Tools products, the AEs were tasked with the same job (although R.J. was inside sales). However, the evidence also indicates that there were differences in terms of the size and type of accounts that each individual was focussed on and in terms of the products being sold. Furthermore, the evidence indicates that the AEs had varying levels of tenure and experience with Borland, including varying levels of experience selling the preferred Enterprise products.
78The respondents submit, in their pleadings and final written submissions, that the quotas in 2001 were four million for Ferland and Wise, 2.7 million for B.S. and R.J., and 2.3 million for M.V. and the complainant. The Commission and the complainant do not appear to dispute this, however, other than documentary evidence indicating that the complainant’s quota was $750,000 for the second and third quarters and either $750,000 or $250,000 for the fourth quarter of 2001, there is no other evidence before me with respect to quotas for 2001. Ferland testified that he always had the highest quota in Canada and I accept that his quota was higher than the complainant’s in 2001.
79While, for the most part, I found the complainant testified in a forthright manner, there were a couple of areas of her evidence where this was not the case. In cross-examination, the complainant was asked if everyone on the Corporate Sales Team should have the same base salary, commission and quota. I found her responses to be quite evasive. She was also asked if factors including seniority with Borland, level of education and relationships with companies such that one has the ability to bring in customers, might affect compensation. Again, I found the complainant to be evasive and, in my view, her reluctance to acknowledge that there might be factors that affect levels of compensation seemed unreasonable.
80The onus of proof in human rights proceedings, as determined by the Supreme Court of Canada, has been summarized by the Tribunal as follows:
The Supreme Court of Canada has held that the initial onus of proof to establish a human rights complaint belongs to a complainant, who must establish a prima facie case of discrimination. Such a prima facie case is one that is based on the allegations made, and if believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent. The onus of proof falls to the complainant to prove the case on a balance of probabilities. Once the prima facie case has been established, then the burden shifts to the respondent to provide some evidence that the allegations made did not occur or that they did not constitute discrimination. (See Pleasant v. Mainline Manufacturing & Installing Inc., 2005 HRTO 34, at para. 208, citing Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Limited, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 558.
81Based on all the evidence, I am not satisfied that the Commission and the complainant have established a prima facie case of discrimination based on gender in terms of the complainant’s compensation when she joined the Enterprise Sales Group at Borland in 2001, particularly in light of her lesser experience selling Enterprise products for Borland relative to individuals such as Ferland, M.V. and B.S. In addition to the complainant’s level of experience, she was not hired directly into Enterprise sales with Borland. She only began selling Enterprise products as an AE, as a result of some reorganization by Fisher, but continued to sell a lot of Tools. She was provided with a $20,000 increase in compensation relative to her change in position.
82I am also satisfied that the respondents have provided a reasonable non-discriminatory explanation for the differences in compensation. The evidence indicates that there were a number of factors that influenced the complainant’s compensation plan at the time, including experience, tenure with Borland, size and types of accounts, product focus, and quota, and that gender was not one of them.
Hiring BDMs
83The Commission also submits that the complainant was subjected to discrimination with respect to compensation in the summer of 2001 when Borland hired three new male BDMs, R.S., S.D. and B.D., and Ferland became a BDM. None of the female employees were given this title or the comparable pay increase.
84The complainant testified that, in her view, she should have been afforded the exact same compensation plan and opportunity that the three new male hires and Ferland had. She testified that M.V., B.S., Wise and her all did the same job as the BDMs and there was absolutely no difference in the job they were asked to do.
85The Commission and the complainant also allege discrimination in that R.S., S.D. and B.D. were guaranteed 100% commissions for the first quarter of employment and 80% for the second quarter, even if they did not sell anything, which is a benefit the complainant did not get. This was consistent with Borland’s offer letters to R.S., S.D. and B.D., dated June 1, September 21, and September 25, 2001, respectively.
86The evidence indicates that M.V.’s employment was terminated in 2001. It appears undisputed, based on the evidence of the complainant, Fisher, and Wise, that the termination of M.V.’s employment was performance related. In May 2002, B.S. accepted a transfer to Atlanta effective June 10, 2002, where his salary was $85,000/$85,000 in U.S. dollars. Just prior to B.S. leaving, J.M. (male) was hired to replace him, and it appears undisputed that he was also offered $125,000/$125,000. J.M. then left to go to another employer and T.S. (male) was hired with a compensation plan of $115,000/$115,000. Wise’s employment was terminated at the end of June or the beginning of July 2002.
87The evidence indicates that, on or about March 15, 2002 the complainant’s compensation was raised to $80,000/$80,000, retroactive to January 1, 2002. As such, she was earning the same as B.S., at the time, and what M.V. had earned. The complainant testified that with a compensation plan of $80,000/$80,000, she earned significantly more than $160,000, but was denied what the men could have earned. In 2002, she had the second highest pay, even though her compensation plan was less, because she outperformed.
88Fisher testified that they increased the complainant’s compensation to be even with B.S.’s because he was happy with the job she had done. She was close to bringing in a big deal with the federal government and he thought the company had been working on it for years and the complainant was the key reason why they won the deal. He also testified, and it appears undisputed, that her salary was made retroactive at the end of April 2002, but not her commission, as she was into accelerators and the increased quota with the new plan would have penalized her in terms of commissions. She was allowed to retain the accelerators for that quarter. He thought she was their highest paid employee for that quarter, besides him.
89After B.S. was transferred and Wise’s employment was terminated, with respect to outside sales people in the Enterprise group, four men, Ferland, R.S., S.D. and B.D., had compensation plans of $125,000/$125,000 and one male, T.S., had a compensation plan of $115,000/$115,000. The only female, the complainant, had a compensation plan of $80,000/$80,000. In addition, an offer of employment, dated January 6, 2003, was made to B.T. (male), with a compensation plan of $125,000/$125,000.
90In my view, the Commission and the complainant have presented sufficient evidence that, absent a reasonable non-discriminatory explanation from the respondents, a finding of discrimination based on gender could be made, in terms of the complainant’s compensation as of the hiring of the male BDMs and throughout the remainder of the complainant’s employment. However, for the reasons that follow, I am satisfied that the respondents have provided a reasonable non-discriminatory explanation for differences in compensation during this time period.
91The complainant testified that her quota was 2.5 million and the quota of the three men, R.S., S.D, and B.D, was 2.45 million, $50,000 less than her quota. She submits that they all started within six months of each other and, in the second quarter of 2002, their quotas were the same: $550,000. She described these three men as her most comparable peers.
92Fisher testified that the quota of the sales people compensated at $125,000.00/$125,000.00 ended up at $750,000 or $850,000 (quarterly) and the complainant’s would have been less. He also explained that their quota was going to be three million plus (annually), but they had a step quota. It was going to be less for the first two or three quarters. In the fourth quarter of 2002, R.S., S.D., B.D., and Ferland had the highest quotas ($850,000). B.S.’s quota (with R.J.) was $850,000 for the first two quarters of 2002. T.S. went right to $750,000. He testified that the intent was that their quotas would be in the three millions and that corporate wanted him to get the senior reps, Ferland, B.D., S.D. and R.S., up to four million.
93The documentary evidence is consistent with Fisher’s explanation. While the complainant had the same quarterly quota as R.S., B.D. and S.D. in the second quarter of 2002, Ferland’s was $850,000. The quotas for R.S., S.D. and B.D. increased in each quarter of 2002, from $300,000, to $550,000, to $750,000, to $850,000. Based on a quarterly quota of $850,000, an annual quota would be 3.4 million.
94The complainant testified that once Fisher said that he would offer her what the men got if she outperformed them by one million dollars (if her quota was raised from 2.5 to 3.5 million). Although Fisher didn’t remember making such a comment to the complainant, it would have been consistent with his evidence regarding the quota expectations of the three new hires and Ferland.
95While the complainant, R.S., B.D. and S.D had the same quotas in the second quarter of 2002, the evidence indicates that the quota expectations of R.S., B.D., S.D and Ferland were significantly higher than the complainant’s. After the second quarter of 2002, the complainant’s assertion that she had the same quota as R.S., B.D and S.D is not supported by the evidence.
96Fisher testified that he was given a mandate to get some senior sales people. They had more senior sales people in the U.S., carrying bigger quotas and earning more, and they wanted the Canadian sales force to look more like the U.S. He testified that their focus was to go after larger accounts, sell more Enterprise business and he had a recruiter look for people who would “fit the bill”. He testified that, with Enterprise sales, you look at people that have been involved in complex sales cycles, selling to many people in long sales cycles, with high value products and services.
97With respect to setting compensation, Fisher also testified that to lure someone away, you need to give them some incentive to move. He referred to getting lots of feedback from recruiters, who tend to have a better “finger on the pulse” as to what the job market is, and also from people in corporate and human resources as to what people in the U.S were earning, which was typically a lot higher than in Canada.
98The first hired was R.S. He had good Enterprise and Tools experience and a lot of success selling services. Fisher testified that R.S. had “the complete package”. In terms of R.S.’s pay, he testified that they looked at the market and the package relevant to the level of experience and it was $250,000, not far off from Ferland. R.S. had more sales experience, was more senior and a more seasoned sales person but he hadn’t been with the company, whereas Ferland had been with the company for over two years. He testified that R.S. had good success, made a lot of money, and he would put him as the most senior of all the sales people he brought on. He was put on compensation that was relative to the U.S. senior sales reps and on par with Ferland who had been their senior sales rep at the time.
99They continued to hire and wanted to expand west, so Fisher hired B.D. in Vancouver who he described as a very senior guy who was really well known. He had worked for a company selling Enterprise solutions, big dollar systems, and he had managed a sales force. He didn’t think any female candidates were presented to him.
100When asked why B.D. was paid more than the others, aside from Ferland and R.S., Fisher testified that, for the same reasons R.S. was hired at that level. What he was earning, the nature of the position - to grow the western market, what he had done, and the companies he had worked for, were all factors that came into play.
101He testified that next, he brought on S.D. and he was hired at BDM level for the same or similar reasons R.S. and B.D. were hired. He had been a sales manager and had success. Again, he didn’t believe any women were presented to him by the recruiter. He testified that S.D. was getting more than the complainant or B.S. because of his experience and the market, where they had to pay him to get him, what he had earned, and all of the same factors that were in place with B.D. and R.S.
102Fisher testified that J.M. was brought on board in 2002 but he had been working on another opportunity at the same time as a country manager, which paid more, and he didn’t know if he worked a day. They replaced him with his second choice, T.S.
103J.M.’s compensation plan was also to be $125,000.00/$125,000.00. Fisher testified that the market was very competitive at the time for good people. J.M. had managed a group and had been very successful. T.S. had the experience but didn’t have as strong a sales background as J.M. who would have been more senior to the group he just hired. Although Fisher thought that T.S.’s compensation was the same, it appears from his offer letter that it was set at $115,000/$115,000.
104Fisher testified that he thought he granted the complainant two increases, one in 2001 and one in 2002. When asked if he felt she was paid at the appropriate level he testified that you get paid where the market is and he thought she wasn’t in his mind at the same level as the senior guys, nor was B.S. He thought she made more commissions than they did, certainly in the first quarter, but he couldn’t say subsequent or prior to that as he couldn’t remember the details. He testified that there were different times when the complainant would have commented on money in 2001 and 2002 and he thought he had addressed those issues as best he could and put the complainant at the right level in 2002, which was the equivalent to B.S.
105The complainant testified that she did the same job and sold the same products as the BDMs. The respondents, on the other hand, submit that, while all members of the Corporate Sales Team were charged with the general task of selling Borland products, in no way did this mean that they were all doing the same work.
106The evidence does indicate that the outside sales representatives were focussed on different types of accounts and different territories. For example, Ferland had large Telco accounts. When asked where they got accounts for the new hires, Fisher testified that with B.D. it was geography (Western Canada) and in the case of S.D. they focused him on a vertical or specific industry. Corey testified that the big banks were T.S.’s territory. It appears that the complainant had a significant amount of work with the federal public sector.
107I accept that when the complainant first joined the Enterprise group there were differences in terms of the size and type of accounts that each individual focussed on and in terms of the products being sold, and that these were some of the factors that could justify the complainant’s compensation plan at the time. However, moving forward in time, into the latter part of 2001 and into 2002, although there is evidence that the sales representatives were focussed on different sectors and geographic regions, there does not appear to be any evidence before me explaining how this might justify differences in compensation, other than perhaps the focus on different sectors.
108However, I accept Fisher’s evidence that he had a mandate to hire some senior sales people, similar to the more senior sales people in the U.S. that would carry larger quotas, and this is what he did. I have also reviewed the resumes of R.S., B.D. and S.D. that were entered into evidence at the hearing and I accept Fisher’s evidence regarding their senior sales experience.
109The complainant referred to her resume. Prior to Borland, she was at SoftArc Inc. from 1994 to 1999. She sold an Enterprise server for them. Prior to that, she had a one year job with Context Associated. While this was sales, it was not technical sales. Prior to that, she worked at Apple Canada for ten years and had various jobs there. She agreed in cross-examination that for a chunk of time she was dealing with tax and duty issues at Apple. Before going to Borland, she took a course, specific to selling application servers, from IBM. With respect to education, she testified that she completed grade 12, took some university courses, but hadn’t completed any degrees
110After her employment was terminated, she focused her job search on selling within the technology field but did not secure such employment. She testified that it might have been that her resume was weak and there were a lot of candidates in the arena in that marketplace.
111Scott Welch (“Welch”) was the CEO of SoftArc Inc., where the complainant was employed prior to Borland, from 1994 to 1999. SoftArc built an email and communications product and had a broad range of customers, from small businesses to major government entities and corporations. He explained that with large corporations, the sales cycle would be longer, such as several months, often with in-person meetings and they would be spending a $100,000 to a million dollars. He testified that the complainant was one of three or four sales people who were fairly senior, although she wasn’t a sales manager. He described her as an excellent and respected employee in the elite group of sales representatives. She started out on the phones and by the end she dealt with their two biggest customers. He was sure she was worth a million dollars in sales in the last couple of years. He also testified that selling the SoftArc product and selling development platforms at Borland involved a similar level of complexity.
112While I accept Welch’s evidence concerning the complainant’s success and experience at SoftArc Inc, I found the complainant’s reluctance to acknowledge in cross-examination that other members of the sales team, including S.D., R.S., and B.D., might have brought more experience to the table in terms of Enterprise sales to be rather unreasonable, in the face of the documentary evidence detailing their significant experience. Also, although she acknowledged that Ferland had a stronger resume than hers, she was quite evasive and reluctant to answer whether or not B.T. had a stronger resume than hers to sell Enterprise. She ultimately testified that she didn’t know.
113I agree with the respondents’ submission that there were legitimate grounds for differentiation between members of the sales team in 2001 and 2002, including but not limited to tenure, Enterprise and business solutions sales experience and success, customer contacts, reputation and desirability in the industry from a hiring perspective, and the level of compensation required to induce a candidate to join Borland. In my view, it is clear from the evidence that the new hires, specifically R.S., B.D and S.D, had much more experience selling Enterprise and business solutions than did the complainant. They were hired as senior sales people, with a focus to go after larger accounts and sell more Enterprise business. As set out above, although their quotas were ramped, the evidence indicates that they were ultimately expected to target 3.4 million on an annual basis by the fourth quarter of 2002, a significantly larger quota than the complainant’s. I also do not find that providing the new hires with commission guarantees in their initial quarters resulted in discrimination against the complainant, in light of the senior Enterprise sales positions they were being hired directly into.
114Ferland had the same quota that was expected of the three new hires ($850,000 quarterly) and had more experience selling Enterprise products than the complainant. When asked if there was anything about Ferland that would justify a different compensation strategy, the complainant acknowledged that he had been there longer and had some seniority, although, to her knowledge, Borland didn’t have a policy that recognized seniority as a reason for different compensation. She also acknowledged that Ferland had a higher quota. I am satisfied, based on the evidence, that Ferland had a senior level of experience, nearly comparable to the three new hires. He also had tenure, a track record with Borland, and a higher quota, thereby justifying his higher compensation, relative to the complainant in the 2001 to 2002 time period.
115Consistent with Fisher’s evidence, it appears from J.M.’s resume that he is a very senior sales person and had been in sales manager positions since the late 1980s to 2001. I was not provided with a resume for T.S., who was hired in place of J.M. but with a slightly lower compensation plan of $115,000/$115,000.
116B.T. was hired by Corey. His offer letter, dated January 6, 2003, indicates a compensation plan of $125,000/$125,000. It appears from his resume, which was also entered as an exhibit at the hearing, that he held positions as a senior account executive from the mid-1990s and as a senior account manager beginning in 2001. As such, it appears that his experience was at a somewhat higher level than that of B.S.’s, but not as senior and extensive as that of R.S., B.D. and S.D. Corey testified, however, that B.T. was a successful sales rep with Borland’s number one competitor, so that would get him a lot of attention, he had a lot of experience with large accounts and his resume mapped very well to what they needed to do.
117Corey was asked what factors would go into setting B.T.’s compensation and explained “market value”; he was making this amount or exceeding it in his role at Borland’s competitor. Corey also testified that really good people make a lot of money and if you wanted to get them you had to pay. He explained that he was not going to see a 50% increase staying at his previous employment. Borland wanted him and he negotiated an attractive pay package. When he was promoted by Borland, he saw no increase in salary or compensation. The factors he identified included, what one was paid previously, how much does their current employer want to keep them and how badly did you want them.
118The complainant was hired in August 2000 to sell Tools products for Borland, with a compensation package of $50,000/$50,000. Effective April 1, 2001, she joined the Enterprise Sales Group as an AE and began selling Enterprise products as well as Tools and her compensation was adjusted to $70,000/$50,000. In March 2002, her compensation was increased to $80,000/$80,000, retroactive to January 1, 2002. This was the same compensation plan that M.V. and B.S, who were hired directly into Enterprise sales around the same time that the complainant was initially hired to sell Tools, maintained throughout their employment with Borland. Consequently, prior to B.S. transferring to the U.S. in 2002, the complainant and B.S. had the same compensation plan. It appears from B.S.’s resume that he had somewhat greater experience than the complainant as an AE in direct software sales since the mid-1990s; however, consistent with the evidence of Fisher, he was not at the same level as R.S., B.D. and S.D. Corey also testified that, although the complainant was paid the same as B.S., he thought his resume was stronger. He testified that there is a reality that sometimes you need to “jump ship” and move to a different company to increase salary and that he would be an example of that as well.
119In my view, the evidence indicates that there were a number of factors explaining the differences in compensation between the complainant and the other members of the Corporate Sales Team and I do not find that gender was one of them. Based on the evidence before me, I am unable to find that the complainant was subjected to discrimination on the basis of gender in relation to her compensation while employed with Borland.
Termination of Employment
120The Commission submits that the complainant’s employment was terminated as further discrimination and/or as a reprisal for asserting her rights under the Code, contrary to section 8 of the Code.
121The complainant’s employment was terminated on January 8, 2003. She testified that Corey had just returned from a meeting in California with management and she had a meeting with him. She was hoping the purpose of the meeting was to get the 2003 sales agreement executed. Instead, Corey handed her a termination letter and Schmiedendorf escorted her out of the building. The reason given in the letter was that her position was being restructured. She testified that it didn’t make sense to her because she had worked so hard and had done so well for Borland in 2002.
122The respondents submit that the basis for the decision to terminate the complainant’s employment was founded solely on legitimate, intervening business considerations driven by the transformation that Borland and its sales force was undergoing at the time.
Reprisal
123In order to establish a prima facie case of reprisal, the Commission and the complainant must establish a nexus between the alleged act of reprisal, the termination of the complainant’s employment, and the complainant claiming or enforcing her rights under the Code, and also that there was an “intent to perpetrate the prohibited conduct”. See Entrop, supra, and Jones, (Ont. Sup. Ct.), supra.
124I have already found that when the complainant spoke to Schmiedendorf about the law that women are to be paid the same as men, she was claiming rights under the Code. In addition, I conclude that when she raised gender-related concerns about her compensation with Fisher, she was claiming rights under the Code. Given my findings with respect to the complainant’s discussions with Schmiedendorf and Fisher, I have carefully scrutinized the respondent’s explanation for the decision to terminate the complainant’s employment.
125Corey was primarily responsible for the decision with feedback from his CEO. He explained that he reported to Hickson, who reported to the CEO, and that Hickson would have known about it. He also testified that he quite likely discussed the complainant’s termination with Schmiedendorf around the same time.
126The complainant testified that her last aggressive conversation with Fisher about pay equity was in June 2002, but they also talked briefly in September when he told her he was working on budgets for the next year. She also testified she spoke with Fisher shortly after Corey was hired and Fisher advised her that she had been discussed at an off-site meeting, with Corey, Fisher and Hickson, and Corey knew about her requests to have her pay increased. She testified that Fisher assured her that Corey knew all about her request for pay equity and she “kept her head down” on the issue.
127Corey was asked if the complainant told him she was making less than male BDMs and he said that he didn’t know that. He testified that he assumed he had a conversation with Fisher about everybody, but he did not recall the complainant complaining about how much money she was making. Asked if the complainant was asking for a raise to be paid the same as the men, he testified that the complainant did not ask him for a raise and that he was only aware of that after the fact. He testified that he had no awareness of her pay or others’ pay at the time. He denied discussing her complaints about compensation with Schmiedendorf or Fisher prior to terminating her employment.
128Fisher confirmed that when Corey came on board there were a number of conversations with him. Fisher couldn’t recall pay issues coming up with Corey, but testified that he would have talked over any issues, including any pay issues, he thought were there. He had addressed the complainant’s pay issues the first quarter of 2002 and he couldn’t recall if they had another pay issue with the complainant. He testified that he would have gone through, in working with Corey, an exchange of information on each individual.
129I do have difficulty with some of Corey’s evidence related to compensation. Corey testified, on more than one occasion, that he was not even aware of the complainant’s compensation at the time he made the decision to terminate her employment and he didn’t know what anybody was making. He claimed that only after the decision to terminate was made and it was necessary to calculate severance, would he become aware of what an individual was earning.
130In my view, Corey’s evidence that he didn’t know what anybody was making is simply not reasonable in the circumstances and appears inconsistent with his evidence as a whole. When Corey was asked how he decided how many sales people were needed in Toronto, he responded that this depended on how many sales people you can pay. He also testified that his compensation was based on a revenue to cost ratio.
131In addition Corey testified that he hired R.K., in March 2003, at what he thought he was worth and found out later that it was closer to the complainant. On the other hand, he also testified that R.K. was paid $90,000/$90,000 and that the complainant’s compensation was probably some representation for R.K. I find Corey’s evidence to be inconsistent on this point as well. In my view, it is more likely than not that Corey was aware of the compensation of his Enterprise sales team and would have been aware of the complainant’s compensation plan prior to terminating her employment.
132However, the fact that Corey knew the complainant’s salary does not necessarily mean that Corey also knew the complainant had complained about gender disparity in her pay prior to the termination of her employment. While the complainant testified that Fisher assured her that Corey knew all about her request for pay equity, Corey specifically denied knowing this or having these discussions. Fisher’s evidence was that he couldn’t recall pay issues coming up in conversations with Corey, but that he would have talked over any pay issues he thought were there. However, he essentially couldn’t recall if there was a pay issue with the complainant at the time. He was not specifically asked, and did not deny, assuring the complainant that Corey knew all about her request for pay equity. Although, even if Fisher did provide such an assurance to the complainant, it also does not necessarily follow that Fisher actually made Corey aware that the complainant had concerns about compensation that were related to gender.
133Based on the evidence, I am not satisfied that Corey was aware that the complainant had concerns regarding her pay and, in particular, that she had gender-related concerns about pay, prior to terminating her employment. Even if Corey was aware the complainant had concerns regarding her pay that were related to gender, in my view, there is insufficient evidence to draw an inference that the termination of the complainant’s employment was a reprisal for claiming rights pursuant to the Code. Although I have found that Schmiedendorf subjected the complainant to a threat of reprisal, this occurred in early 2002. The complainant testified that her last aggressive conversation with Fisher about equal pay was in June 2002, and she described her subsequent conversations with him as mild and cheerful. Corey was ultimately responsible for terminating the complainant’s employment and he did not replace Fisher until November 2002. The complainant testified that, by this time, she “kept her head down on the issue”, and she did not raise the issue with Corey.
134In my view, there is insufficient evidence to establish that the termination of the complainant’s employment by Corey was related to her raising concerns about pay equity, or in any way intended as a reprisal for raising such concerns. In any event, as set out below, I find that the respondents have established a reasonable non-discriminatory explanation for the termination of the complainant’s employment.
Discrimination
135The evidence indicates that when the complainant’s employment was terminated, she was the only female sales representative in the Enterprise group. She was replaced by a man. With respect to her performance, the complainant testified that her sales were better than everyone else’s in the first quarter of 2002. She had the second highest pay in 2002, even though her compensation plan was less, because she outperformed. She also testified that she had absolutely no negative performance issues discussed with her whatsoever, and it didn’t make sense to her that a company would terminate its “number one” representative.
136In cross-examination, she testified that in 2002 she had the number one sales. She also testified that on the day her employment was terminated, a customer had confirmed that they had over half a million dollars in purchase orders coming over the next couple of days and, based on disclosure, it was the largest Enterprise sale of 2003. It was a sale that she worked on over a long period of time.
137Fisher testified that the complainant’s compensation was increased in 2002 because he was happy with the job she had done. He agreed that, in 2002, she was making 95.6% of quota. Under his tenure, she was a great sales person. He agreed she outsold everyone else, in terms of percentage of quota, and was the top sales person relative to quota. Fisher’s evidence is consistent with the documentary evidence which indicates that the complainant had the highest percentage of quota in 2002, whereas Ferland had slightly higher actual sales (although Wise may have contributed to that as she was teamed with Ferland for part of 2002).
138Fisher also testified that he didn’t think he would have terminated the complainant’s employment. She met what he measured as acceptable performance. I am mindful that Corey testified that he replaced Fisher, that Fisher took on a junior role and then he terminated Fisher, however, I did not detect that Fisher held any animosity towards the respondents.
139Corey also agreed the complainant was making 95.6% of her quota in 2002 and S.D. was making 21.5%. He agreed he would have known this before the complainant was terminated.
140The evidence is clear that the complainant had performed well in terms of sales relative to her quota and her peers. At the time her employment was terminated, she was the only female sales representative in the Enterprise Sales Group, along with five men. Corey, who was responsible for the complainant’s termination, I have found made inappropriate remarks about women at meetings. Having regard to the evidence and the overall context, it is my view that a finding of discrimination based on gender could be made, with respect to the termination of the complainant’s employment, in the absence of a reasonable non-discriminatory explanation from the respondents. However, I am satisfied that the respondents have established a reasonable non-discriminatory explanation for the termination of the complainant’s employment.
141Corey testified that his job was to transform the organization to allow it to take advantage of the acquisitions of Starbase and Togethersoft. He explained that Borland’s business and markets were changing and a strategic decision was made to get ahead of the curve.
142He testified that he came from Rational, which was later acquired by IBM. He was recruited by a headhunter. He explained that Borland wanted to replicate the Rational model, to emulate the whole value propositions towards business solutions, instead of boxed product, and the company had a lot of work to do to reinvent itself. The products Borland was acquiring were sold to development directors, or higher; the objective was to get as high as possible. It was a much more profitable space. He explained that Borland made the acquisitions because the CEO at the time believed moving into software business management would be the next wave of the company’s success. Borland had an objective to compete one-to-one with Rational.
143Corey testified that his marching orders were to determine how to best equip the organization for the new position that Borland wanted to have in the marketplace - how to best compete and win against Rational. He was given latitude to the point where his boss at the time said if you want to “blow up” the whole organization, go ahead. His boss’s view was that there wasn’t anybody in the organization who was qualified or worth keeping. Corey didn’t share that opinion but testified that, over time, maybe his boss was right. Corey was to make changes quickly and transform the organization.
144With respect to sales people when he joined Borland, Corey testified that, in Montreal, there was M.S. (male), who came from Togethersoft, and Ferland. In Toronto there was Michael Back (“Back”) from Togethersoft, S.D., T.S., R.S., and the complainant, who supported the federal government remotely and had some accounts in Toronto. B.D. was in Vancouver. There were also two inside sales people.
145He testified that he had interaction with all of them because the objective was to assess who would move forward and who would be dismissed; they had more people than territories. In terms of how he assessed, he testified that he had conversations about their backgrounds, territories, accounts, forecasts, and pipelines.
146When asked what he did in terms of who stayed and who went, he testified that he considered who he believed was going to provide the greatest amount of upside in staying and who was the least amount of risk if they were terminated and he had to terminate some people. He explained that the business reality of any acquisition is that top line revenue usually drops by 30%, so you need to address the cost curve.
147The first person he dismissed was Back and doing so was arguably a risk as he was from Togethersoft and was one of the few individuals who had knowledge of the new products. Back confirmed that, for Togethersoft, he had been responsible for regional sales, including Enterprise sales, in eastern Canada, not including Ottawa. They were acquired by Borland on January 15, 2003, and on the same day he received notice from Borland that his employment was terminated.
148Corey testified that the other piece was to have localities. He determined that the public sector was going to be pursued. Rational had been doing seven or eight million dollars with the federal public sector and Borland had been doing about 1.5 million. He explained that both Borland and Rational were involved with a large account with the federal government going back to 1999. The complainant was involved with the deal for Borland, and picked up about a million dollars in business, and Rational picked up about three to five million dollars.
149He testified that he looked at locality, backgrounds, pipelines, who would be the least risky to terminate and the most opportunistic to keep from a business perspective. He described it as a bit of a science and a bit of an art. With respect to “risky”, he explained that if you looked at someone’s pipeline and it looked significant, you would want to close that business and not terminate that person because they would have a relationship with the client. If the business was further along, it would be low risk because each deal has a lifespan. Once you have it “in the bag”, the deal is confirmed, so it’s low risk to remove that person.
150Corey testified that he and the complainant had a number of conversations about the territory in Ottawa and that it was under serviced as there was nobody local. He testified that his view still is that if you are going to pursue that public sector market, you need someone there daily. He believed the complainant shared that view and agreed that the way to go would be to have somebody local in Ottawa.
151Corey recalled one conversation with the complainant in the office, when he spoke to everybody about their territories, and testified that they made one trip together to Ottawa to see one of the clients where they would have talked about the client and the market space.
152When asked, with respect to Toronto and Ottawa, who was in contention to stay, Corey testified that the complainant was in contention to go because of her inability to be local in the Ottawa territory. They needed someone local and the complainant was unable to relocate. He testified that the complainant was very forthright about the need to have someone local in Ottawa and that would not be her. She would not or could not move to Ottawa. She believed there was enough business for her in Toronto. In his opinion, 80% of her territory was disappearing; 80% of her territory she was unwilling or unable to pursue directly.
153In cross-examination, Corey confirmed that the complainant’s employment was terminated because he wanted somebody in Ottawa. He had discussions with the complainant about her availability and flexibility to move. He testified that this was probably in early November, probably when meeting with the federal government, and also in the context of presenting her with her severance package. The complainant told him that the territory needed representation in order to grow. He didn’t suggest it to her; she said it was needed and he supported her in that. The decision was also supported by the fact that their major competitor had a major footprint there.
154Corey testified that a very small portion of the complainant’s territory involved Toronto and in his opinion most of her territory was in Ottawa – all departments of the federal government. When asked about the Ontario government, he testified that it was his view that opportunity was available in Ottawa and there wasn’t opportunity with the Ontario government.
155When asked about a third discussion, concerning his desire for the complainant to move to Ottawa, he testified she said she had no desire or ability to move to Ottawa and, at that point, he said he had no choice but to present a termination package to her. He testified that a termination is costly for a number of reasons and the lower risk proposition would have been for the complainant to take the position in Ottawa. At that point, if she said “yes”, they would have had a discussion about it. He would have been unwilling to have not made it an ultimatum for her continued employment.
156He was asked about his witness statement from the Commission’s investigation, signed by him on June 23, 2006, wherein it states, “She said that we needed someone local in Ottawa, and confirmed that she wasn’t able to move… she had the opportunity to relocate…” When asked if he said if you don’t relocate, you’ll be terminated, he said, “No.” His statement also states, “Before I handed Susan the termination documentation, I reconfirmed that she did not wish to relocate to the Ottawa territory.”
157He also testified that he asked her if she was willing or able to go to Ottawa; he never offered it, not specifically. He testified the question was are you willing and able to go to Ottawa and the response was always negative.
158The complainant, on the other hand, testified that, in December 2002, an ad in the Ottawa Citizen came to her attention when she received a call from an individual asking her if Borland was a good place to work. She was kind of surprised that Borland was advertising in a newspaper for a job that she was doing but she wasn’t overly upset or worried about it. To her, it just meant that Borland was growing and their internal communication was poor.
159The ad ran on Sunday, December 15, 2002, and she spoke to Corey on the first business day that he was available. The complainant testified that at no time during the course of her conversation with Corey did they discuss her moving to Ottawa. She testified that the main purpose of speaking to him was to lobby to keep a federal government client. She testified that there was precedent for this as Ferland kept a customer in Saskatchewan even though the territory went to B.D.
160The complainant testified that she was not given any sort of indication or warning that her job was going to be terminated and she was shocked. She also testified that she was never asked or offered to relocate to Ottawa. On the other hand, she did not testify that she would have relocated to Ottawa if it had been asked of her or offered. Her evidence was that, even with hiring in Ottawa, there was no reason she couldn’t be deployed doing work in Toronto and she believed there was enough work for her in the GTA, although she lobbied to keep a federal government client. She also testified she was still maintaining accounts in Manitoba and the Maritimes. They had just secured a contract in Ontario and she had been talking to various Ontario government ministries. She testified about opportunities with two other organizations. She also testified that, after her employment was terminated, she wasn’t interested in applying in Ottawa and didn’t apply for any jobs in Ottawa because she didn’t want to live there.
161Corey was asked about the letter to B.T. engaging his service. The letter is dated January 6, 2003, and it appears to be signed by B.T. on January 7, 2003. The complainant’s termination letter is dated January 8, 2003. When asked if the deal had already been made with B.T., prior to giving the complainant her termination letter, he stated that it appears so, but he testified that it was not too late to rescind the offer letter. He testified that his intent was to give the complainant an opportunity to retain the position and, had she decided to relocate, they could have rescinded the offer to B.T. He denied that it would have cost the company money to rescind the offer to B.T. as, during the first 90 days, B.T. would have been on probation.
162In my view, Corey’s evidence that he gave the complainant an opportunity to stay on by agreeing to relocate to Ottawa before he terminated her employment on January 8, 2003, is simply not in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in” the circumstances. Corey acknowledged, and the documentary evidence confirms, that B.T. was already hired for the Ottawa position, prior to the date on which the complainant’s employment was terminated. In my view, Corey’s evidence that it should not have been an issue if the complainant decided she wanted to stay, and they could have rescinded the offer to B.T., is simply not reasonable and credible.
163When asked if he put the ad for the Ottawa position in the newspaper, Corey testified that he requested that through a third party recruiter. He testified that he told the recruiter to build a list of possible candidates for the Ottawa territory and that they have to live in the greater Ottawa area. It was a requirement. He denied that it was not a genuine search. He testified that the recruiter ran the ad. He testified that he always uses a recruiter and he didn’t ask a recruiter to run the ad; he asked the recruiter to locate candidates in the Ottawa area.
164I have difficulty with Corey’s evidence that he had a recruiter build a list of possible candidates and that the recruiter ran the newspaper ad. As submitted by the Commission, the ad which was entered as an exhibit, asks that applicants forward their applications to “mlyn-ferster@borland.com”. It appears from another exhibit titled “BORLAND/INPRISE CORPORTION E-MAIL DIRECTORY” that “mlyn-ferster@inprise.com” is the “Assistant to the President”. There was also evidence that Borland was previously known as “Inprise Corporation”. He testified that he didn’t recall who the person was that signed B.T. up for the new position. In my view, it is more likely than not that Corey did not have a third party recruiter compile a list of possible candidates for the Ottawa territory when he hired B.T.
165Corey testified that B.T. had worked for him. B.T. was an AE with Rational and access to B.T. gave them access to their competitor. He worked with B.T. for approximately two years and he knew him. B.T. was successful and had a lot of experience with large accounts. Corey testified that B.T. started with a 3.5 million dollar quota, based exclusively on the federal government.
166Ferland testified that B.T. was Corey’s friend and that whether or not Corey needed a representative in Ottawa, he wanted to get his friend on board. Doyle testified that when the complainant was fired he was shocked and they soon found out why – to get replaced by one of Corey’s buddies in Ottawa, B.T. When asked if there was anything that led him to believe that Corey and B.T. were buddies, he testified, “all those jokes that they were making together”. He testified that “they were buddies, very good buddies.” When asked if he ended up with his old buddy, Corey didn’t deny it.
167In my view, given this evidence, it is more likely than not that Corey hired B.T. for the Ottawa territory because he knew B.T. and had previously worked with him. I have already indicated that it appears from B.T.’s resume that his experience was at a somewhat higher level than that of B.S’s, but not as senior and extensive as that of R.S., B.D. and S.D. It appears from the evidence that B.T. had attractive qualifications for the Ottawa position.
168As to whether or not the complainant was ever asked or offered to relocate to Ottawa, considering the problems I have identified with Corey’s evidence in relation to the termination of the complainant’s employment and the hiring of B.T., I prefer the evidence of the complainant that she was never asked or offered to relocate to Ottawa. However, based on the evidence of the complainant and Corey, it is possible that Corey ascertained that the complainant was not interested in relocating to Ottawa, and I accept that they agreed that adding a local sales representative in Ottawa made business sense. The complainant testified that she spoke to Corey about the ad in the newspaper; he said they were adding a representative in Ottawa and she didn’t think that was a bad idea. She thought it was a good business decision. She and Ferland were both traveling to Ottawa for their accounts and S.D. started to travel to Ottawa for some of his corporate accounts. She testified that it made sense to grow the business in this fashion.
169The Tribunal’s jurisdiction is to determine if the termination of the complainant’s employment was discriminatory pursuant to the Code, and not whether it was otherwise unfair. There appears to be no disagreement that hiring a sales representative in the Ottawa area made sense. Corey testified that 80% or 90% of the complainant’s territory was in Ottawa. He denied that it would not have made a difference if he asked someone else in Toronto to relocate to Ottawa as he would have created two disrupted territories. When asked if he did disrupt the complainant’s territory in Toronto, he said that he considered it to be about 10%.
170In reply evidence, the complainant referred to a document that set out her accounts and revenue for 2002. It appears from the evidence that, although Corey’s assessment of the amount of the complainant’s territory that was Ottawa may be somewhat exaggerated, it is clear that she held a large portion of accounts in the Ottawa area that were almost exclusively with the federal public sector. It is also clear that the majority of her revenue was with the federal public sector in the Ottawa area.
171Corey also testified that they needed sales people who could compete aggressively with Rational and sell into the new market space. When asked how the complainant stacked up on that measure, he said it was hard for him to say definitively. She was a good performer on paper but her background prior to Borland was not as strong as her peers in terms of the products she sold and her tenure in a sales role.
172With respect to the complainant’s resume, Corey testified that her experience at Apple was in administration and not sales related. Her experience at Context had no relevance to what Borland was trying to get to but her experience at SoftArc would have some as would her Borland experience.
173Corey also testified that the complainant had been successful at Borland in “legacy”, but the legacy products that had been the majority of their business had an “end of life”. There was an expectation that those products would have almost no market value, would be shelved and there would be a need for a new product. The complainant had done quite well selling those products. While some others had struggled more, they had backgrounds selling complex products, had been in senior roles, and had good business acumen. So, while they didn’t make the transition to box products, he expected that. If he was hiring new, they would definitely be on the list.
174Corey also testified that his compensation was based on a revenue to cost ratio. So, if he believed that the complainant was in the best position to earn, that would have been better for him, and to retain her would have been more financially appropriate.
175Corey testified that R.S. had a pretty strong background and resume. He ran his own services company that delivered Rational services so he had a great background in the market space they were moving into, his performance was middle of pack and he had a solid pipeline.
176Corey testified that R.S. and the complainant had solid pipelines but when he excluded the large federal government deal from the complainant, she too was mid-performance. He testified that about 50% of her overall sales performance was the one transaction. When asked why remove that out of the equation, he explained that it was an Ottawa account with old product. It was an old account, one transaction with the government, and it wasn’t local. Their competitor was local. Having worked for that competitor, he knew the value of being local.
177He testified that T.S. had a background from IBM so he probably had the most depth of understanding of their competitor because IBM acquired Rational. He described his performance as “middle of the pack”. The big banks were his territory, so he had relationships in the banking sector that would have been difficult and taken time to replicate.
178Corey acknowledged the complainant was making 95.6% of quota and S.D. was making 21.5%, and agreed he would have known this before the complainant was terminated. With respect to S.D.’s resume, Corey testified that he had a lot of senior experience as a country manager and senior manager. He testified that S.D.’s performance was poor but he stayed “by the skin of his teeth” because he had a couple of large deals in his pipeline that Corey wanted to close and they were strategic accounts. One did close but S.D. acknowledged that his contribution to the closing of that deal was not significant and agreed he probably didn’t have the right skills to remain with the organization. He was terminated about three months after the complainant. He was informed around the same time the complainant was terminated, that if he didn’t perform he would be terminated. He was informed that he was being retained for 90 days to complete that business.
179Corey testified that the complainant provided him with the least risk to terminate based on her inability to pursue Ottawa and be local in Ottawa. He explained that he associated the ability to pursue with being located in Ottawa. He testified that the federal government is a huge client and most businesses invest multiple people to pursue it locally or hire a lobbyist. It’s about being there and understanding them and it’s a big marketplace, in his opinion, 90% of that territory. With respect to R.S., T.S. and S.D., he testified that their account roster was virtually exclusively Toronto. He believed S.D. had one or two small accounts in Ottawa.
180He was asked how he decided how many sales people were needed in Toronto. He testified that it’s not a hard science but, typically, you determine your historical run rate of business and how many sales people you can pay and try to estimate future business. He testified that the rule of thumb is probably one sales person for two or three million dollars in revenue and they had thirteen million. He kept two people in Montreal and one in Vancouver. He testified that its cost prohibitive to fly and Toronto supported three representatives. Rational had five representatives in the area and they were not going to overtake them. He testified that, in hindsight, it probably should have been two but he was hopeful they would grow more quickly than they did.
181I do have some concerns that in his evidence concerning the complainant’s performance and qualifications, Corey may have provided an unduly negative or undervalued assessment. However, to the extent that his evidence in this regard may be a pretext, I find that it is a pretext to the reason why the complainant’s employment was terminated, which was that Corey wanted to hire B.T. for a position in Ottawa, and the complainant was the only individual on the sales team who held a large number of Ottawa area accounts, and not because of gender.
182Corey testified that he terminated probably ten, or in excess of ten people, including a couple of technical sales managers, a couple of AEs, and some support staff as well. There was a lot of turnover. It appears from the evidence that, in addition to the complainant, Back, and S.D., Corey terminated Doyle and Ferland at the end of 2003. He also testified that R.K., who was hired to replace S.D., didn’t work out. He also terminated Fisher’s employment. Fisher testified that he left Borland in March 2003. Corey testified that he left Borland in 2006 when he was fired. He testified that it did not have anything to do with any kind of discrimination.
183He testified that of those fired, two were women – the complainant and his assistant. He hired one woman, Wise. She was rehired, originally in a contract position to sell training packages. Her salary was $37,500/$37,500 and she was the highest or second highest inside sales person and the other two were male. Corey testified that when he rehired Wise and when she moved into a new position from contract, she negotiated her salary with him, so she was paid a slight premium over her peers.
184When asked what significance, if any, did gender play in his decision to terminate the complainant, Corey answered, “none whatsoever.”
185Ferland testified that he had many meetings with Corey and, in January 2003, he remembers Corey telling him that he could have kept the complainant as he had eight positions. Corey testified that was false and he did not recall any conversation with Ferland. They didn’t have a positive relationship so he would never have discussed anything operational with him and they didn’t have eight positions. They rotated one person twice but that was it. He agreed that, in theory, he could have rehired the complainant. The evidence indicates that after the complainant’s employment was terminated, there were seven outside sales representatives through much of 2003: three in Toronto, two in Quebec, and one each in Ottawa and Vancouver.
186In sum, it was accepted by the parties that it made business sense to have a sales representative local in Ottawa. The evidence also indicates that a large portion of the complainant’s accounts were federal public sector accounts in the Ottawa area that generated the majority of her revenue. The evidence shows that Corey hired one of his former colleagues, B.T., from Borland’s competitor, who lived in the Ottawa area, to take over the Ottawa accounts. In my view, having considered all of the evidence, I find that the complainant’s employment was terminated so that B.T. could take over her accounts in the Ottawa area. In my view, it was the fact that the complainant was the sales representative who held most of the Ottawa accounts that led to the termination of her employment, and not her gender.
187I am alive to the concern that a male supervisor’s decision to select a former male colleague and/or friend for a job may be infused by gender discrimination. As such, I have carefully considered whether the termination of the complainant’s employment in order for a male supervisor to hire a former male colleague and/or friend amounts to discrimination based on gender. I do not doubt that in some situations it could; however, based on the circumstances of this case and after a thorough assessment of the evidence, on a balance of probabilities, I conclude that it does not. I find that the respondents have provided a non-discriminatory explanation for the termination of the complainant’s employment and I do not find that the complainant was subjected to discrimination on the basis of gender, or reprisal, when her employment was terminated.
REMEDY
188The Tribunal’s remedial powers are set out in section 45.2(1) of the Code, which provides, among other things, the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and the power to direct any party to do anything to promote compliance with the Code.
189Prior to section 45.2(1) of the Code coming into force, the Tribunal had identified the relevant criteria to be used in assessing the appropriate quantum of general damages to compensate for the infringement of rights enumerated in the Code which have an intrinsic value and for mental anguish. See Sanford v. Koop, 2005 HRTO 53). Although the remedial provisions of the Code no longer refer to “mental anguish”, the Tribunal has found the criteria developed in previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect (see S.H. v. M(…) Painting, 2009 HRTO 595 and Hughes v. 1308581 Ontario, 2009 HRTO 341). The Divisional Court, in ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425, held that the following are among the factors that Tribunals should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.
190I have found that the complainant was subjected to a threat of reprisal and a poisoned environment, contrary to sections 5(1), 8 and 9 of the Code. I have also found that the respondents failed to adequately and appropriately investigate the complainant’s allegations of discrimination in the workplace, contrary to sections 5(1) and 9 of the Code. The complainant testified that she believed she was discriminated against on the basis of pay. When she raised this with Schmiedendorf, she was subjected to a threat of reprisal. She also had a number of conversations with Fisher wherein she raised her concerns about equal pay which she described as hostile, tense and aggressive. She stopped being aggressive in June 2002, after Wise had been terminated as she didn’t want to be unemployed. She was afraid that her employment would be terminated which, in the circumstances, was not an unreasonable concern.
191In the circumstances, I find that a total award of $10,000 is appropriate as compensation for the impact of the discrimination, and threat of reprisal, on the complainant’s dignity, feelings and self-respect. I find that the personal respondent, Schmiedendorf, and the corporate respondents are jointly and severally liable for $5,000 and the corporate respondents are jointly and severally liable for an additional $5,000.
192Pre-judgment and post-judgment interest is ordered. Pre-judgment interest will run from January 8, 2003, the date the complainant’s employment with the respondents ended. Post-judgment interest is payable in accordance with the Courts of Justice Act and should run from 30 days from the date of this Decision.
ORDER
193Accordingly, the Tribunal orders as follows:
- within 30 days of the date of this Order:
a. the personal respondent, Schmiedendorf, and the corporate respondents, Borland and Borland U.S., are jointly and severally liable to pay the complainant $5,000 as compensation;
b. the corporate respondents, Borland and Borland U.S., are jointly and severally liable to pay the complainant an additional $5,000 as compensation;
c. pre-judgment interest is payable on the above amounts from January 8, 2003, to the date of this Decision, in accordance with the Courts of Justice Act.
- Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.
Dated at Toronto, this 4th day of June, 2010.
"Signed By"
Brian Eyolfson
Vice-chair