HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Maurer
Applicant
-and-
Metroland Media Group Inc. c.o.b. as The Hamilton Spectator,
Communications, Energy and Paperworkers’ Union of Canada,
Local 87-M (Southern Ontario Newsmedia Guild)
and Paul Morse
Respondents
DECISION
Adjudicator: Sherry Liang
Indexed as: Mauer v. Metroland Media Group
AppearanceS BY
Elizabeth Maurer, Applicant ) Self-represented
Metroland Media Group Inc. c.o.b. as )
The Hamilton Spectator, Respondent ) Jason Green, Counsel
Communications, Energy and Paperworkers’ )
Union of Canada, Local 87-M ) Mandy Wojcik, Counsel
(Southern Ontario Newsmedia Guild) )
and Paul Morse, Respondents )
1This is an Application filed on August 8, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
2The applicant alleges that her former employer, Metroland Media Group Inc. c.o.b. as The Hamilton Spectator (the “Spectator” or the “company”), violated the Code when it failed to properly respond to her complaints of sexual harassment by a co-worker. The applicant also alleges that her union, the Communications, Energy and Paperworkers’ Union of Canada, Local 87-M (Southern Ontario Newsmedia Guild) (the “union”) and a union representative, Paul Morse, also violated the Code in the manner in which they represented her. The applicant was permitted to amend her Application to include an allegation that following the filing of the Application, her employment was terminated by the Spectator as a reprisal for seeking to enforce her rights under the Code.
3The Tribunal heard the evidence of the applicant, who was cross-examined by counsel for the Spectator and the union. At the conclusion of the applicant’s evidence, counsel for the Spectator and the union requested that the Tribunal dismiss the Application, on the basis that the applicant has not met the burden to establish a prima facie violation of the Code.
4For the reasons that follow, the Application is dismissed.
BACKGROUND – THE LEGAL ISSUES
5Before turning to the evidence, I will review the legal framework for this decision.
6Section 5(1) of the Code provides that every person has a right to equal treatment with respect to employment without discrimination on the basis of enumerated grounds, including gender. Section 6 guarantees the right to equal treatment with respect to membership in a trade union. Section 7(2) provides that every employee has a right to freedom from sexual harassment in the workplace by the employer, an agent of the employer or a co-worker. Finally, section 8 gives every person the right to claim or enforce his rights under the Code without fear of reprisal.
7It is well established in the Tribunal’s jurisprudence that included in the right to employment without discrimination or sexual harassment is a duty on an employer to investigate a complaint of discrimination or sexual harassment. It has been said that the duty to investigate is a ‘means’ by which the employer ensures that it is achieving the Code-mandated ‘ends’ of operating in a discrimination-free environment and providing its employees with a safe work environment: Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30. The employer’s duty to investigate is held to a standard of reasonableness, not correctness or perfection.
8Some of the factors the Tribunal considers in determining the reasonableness of an employer’s response are:
Whether an employer acts promptly in dealing with a harassment complaint;
Whether an employer demonstrates awareness that sexual harassment is prohibited conduct and must be dealt with seriously;
Whether an employer has a complaint mechanism for dealing with such complaints;
Whether an employer takes steps to ensure a healthy work environment and communicates its actions to a complainant.
See Laskowska, above, and Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789.
9These factors are not mandatory elements that must be strictly followed in each case, but matters to be considered in assessing whether, as a whole, an employer’s response was reasonable. Having regard to the above factors, in order to establish that the company violated the Code, the applicant must show that once it became aware of her complaints of sexual harassment by a co-worker, it failed to take reasonable steps to investigate and address her complaints.
10The applicant has also alleged that the union violated her right to be free of discrimination or sexual harassment, in the manner in which it represented her interests following her complaints. In order to establish that the union violated the Code, the applicant must show that its actions or inactions as her bargaining agent amounted to unequal treatment of her on the basis of her gender.
11In order to prove reprisal, the applicant must establish that the company engaged in an action, or threat, which was intended as retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate: Noble v. York University, 2010 HRTO 878.
12The onus of proving discrimination rests with the applicant. The Supreme Court of Canada has described this onus:
The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer. Ontario Human Rights Commission v. Simpson-Sears Limited, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28.
13In the normal course, an applicant will give evidence himself or herself about the conduct alleged to be discriminatory, and may call additional witnesses to testify. If all of the applicant’s evidence, taken together, is insufficient to lead to a finding that a respondent has violated the Code, the Tribunal may decide that it is unnecessary to hear the respondent’s evidence, and dismiss the application. When an applicant has not provided evidence sufficient to establish a prima facie case, it may not be fair, just and expeditious to require a respondent to call evidence in order to refute the applicant’s case: Sosoo v. Winners Merchants, 2010 HRTO 1367.
14In assessing whether an applicant has established a case that the respondent should be required to meet, the Tribunal has recognized that discrimination is often not overt, and, particularly in an employment situation, the employer may have knowledge of facts or possess evidence of discrimination that is not reasonably available to an applicant: Jagait v. IN TECH Risk Management, 2009 HRTO 779. The Tribunal has the discretion to determine the order in which issues will be determined (Rule 1.7(g)), and may choose to hear all the evidence, including that of respondents, before making a decision on whether the applicant has met the onus to establish a prima facie case of discrimination.
15The respondents provided me with certain decisions describing the role of a human rights tribunal when asked to dismiss a case by way of a non-suit motion. See, for instance, Modi v. Paradise Fine Foods Ltd., 2005 HRTO 24 and Ronaldo Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32 (appeal dismissed Filgueira v. Garfield Container Transport Inc. 2006 FC 785). These decisions set out a cautious approach to the weighing and assessment of evidence at this stage. In Modi, the Tribunal adopted the standard articulated in Gerin v. I.M.P. Group Ltd. (No. 1)( 1994), 1994 CanLII 18459 (NS HRC), 24 C.H.R.R. D/449 (N.S. Bd. Inq.), that evidence should only be rejected if the tribunal is “clearly convinced without deep reflection and analysis that it is untrustworthy”.
16The Code has been considerably amended since the above decisions were issued, and the Tribunal given explicit authority to adopt practices and procedures that are alternative to traditional adjudicative or adversarial procedures. This statutory direction is reflected in the Tribunal’s Rules. The applicability of principles and procedures that were developed under the previous statutory framework remains to be determined by the Tribunal on a case-by-case basis. Whether or not it may be seen as a departure from the previous approach, in determining whether an applicant’s evidence is sufficient to establish a prima facie case requiring a response from the respondent, the Tribunal has not hesitated to assess whether that evidence is credible (see Jagait). In Sosoo, the Tribunal analyzed the applicant’s evidence in detail, ultimately concluding that it was not a “complete and sufficient basis upon which to make the factual fndings necessary in order to conclude that the respondent infringed the applicant’s rights under the Code”, regardless of whether the respondent called any evidence. A case that is so lacking in detail or a clear and consistent account of the allegations, such that it does not require a response from a respondent, may be dismissed for no prima facie case. See Chau v. Olymel S.E.C\L.P, 2009 HRTO 1386.
17In the present case, I find that the oral testimony of the applicant, combined with the uncontested documentary evidence, is not complete and sufficient to lead to a finding that the respondents have violated the Code. There is no reasonable basis on which a conclusion in the applicant’s favour could be reached and in these circumstances, I see no reason to require the respondents to respond to the applicant’s case.
THE EVIDENCE
18The applicant began working for the Spectator in November 2007, in a part time position in the mailroom department. She worked on a line feeding material such as TV Guides into a machine which then inserted them into newspapers. She alleges that during the evening shift on March 14, 2008, a co-worker, Mike Boutcher, made certain offensive comments to her. Although the applicant stated that she saw Boutcher as a supervisor, he was actually a linesman. His duties included ensuring that the line ran smoothly, but the applicant knew that he did not have responsibility for such matters as scheduling and assignments. Boutcher and the applicant were both employees covered by collective agreements, in different bargaining units.
19At the hearing, the applicant stated that one of the comments consisted of asking another male co-worker whether he would like to take the applicant’s “ass to his bedroom and spank it”. This was not how she described this incident to the union or the company subsequently. Nor was this version of the statement contained in the formal complaint that she eventually filed with the company. The incident was described in her formal written complaint of June 4, 2008 as Boutcher telling a co-worker to “grab her ass”. While the difference may seem minor, at various times, the applicant was very adamant about her recollection, but those recollections were themselves not consistent. The relevance of this to my findings is simply that insofar as the applicant’s account to the Tribunal changed at times, so did her account to the company. The company’s response to her complaints must be therefore considered in a context of changing allegations.
20The applicant testified that she was offended by the remark and yelled at Boutcher so loudly that the “colour drained out of his face.” Later in the same shift, she states that she yelled at Boutcher that she needed more TV Guides. He was in a conversation with a female co-worker and yelled back “hey, I’m trying to get laid here.” Later, the applicant found out that the female co-worker was a union steward.
21The applicant had a scheduled performance evaluation on March 19, during her shift. At the end of her performance evaluation, she disclosed these incidents to a supervisor. She testified that when she stated that she didn’t appreciate his comments, the supervisor reacted flippantly to her complaint, stating that it was “too bad” because Boutcher liked her. The applicant indicated that she wished to have someone speak to Boutcher about the matter.
22The supervisor stated that she was going to do Boutcher’s performance evaluation that day as well, and that he could get in trouble for comments like that. She stated that this would be brought to Boutcher’s attention later that same evening.
23The applicant stated that about a week after this, she asked a supervisor not to be assigned to Boutcher’s line. She was told that he would try his best. The applicant felt that the company did not follow through on this commitment, but she stated that there were no incidents between March 14 and April 23. On April 23, in the applicant’s evidence, Boutcher came up to her during work three times and whispered in her ear that he was behind her. He also touched her shoulder at one point. The applicant felt threatened by these incidents.
24Until this, the applicant had raised the matter directly with the company; after this, the applicant began to pursue the matter with the assistance of her union representatives. She met with her union representative and a member of management on May 9, then again on May 27, 28 and June 2.
25Initially, the meetings with the company were in the context of what the parties referred to as an “informal” complaint. The company has a Harassment Policy that outlines management responsibilities with respect to the investigation of allegations of harassment made through a formal complaint, but employees may seek resolution informally before initiating the formal process.
26At this point, the applicant had not yet submitted a written complaint, and the meetings with management and her union were held in an effort to find a resolution without a formal investigation.
27At the meeting of May 27, the applicant raised the issue that despite the earlier assurance that she would not be scheduled with Boutcher, she had not found this assurance followed. The company acknowledged that the practice had not been consistent and that not all of the supervisors responsible for scheduling had been made aware of this request. The applicant was told that an email would be sent to the supervisors to confirm this. The applicant also stated that she wished to have a written apology from Boutcher, to be placed in his employment file.
28On May 28, the applicant set out the three items that she needed in order to resolve her complaint: (1) an assurance that she would not have to work with Boutcher; (2) a written apology from Boutcher, to be placed in his employment file and (3) communication of these to the company’s supervisors. Although, as indicated above, the company was prepared to provide her with the assurance about scheduling, its position on the apology was that it could not compel Boutcher to provide one if he was unwilling.
29On June 4, not satisfied with the handling of her concerns, the applicant made a formal written complaint under the company’s Harassment Policy. In her evidence, the applicant stated that she filed the written complaint because of the failure to obtain an apology.
30Within two days of this written complaint, the company’s Regional Human Resources Manager began interviewing employees about the complaint, including the applicant, Boutcher, and two other individuals named by the applicant as having been present or involved in the incidents. On June 24, the applicant, with her union representative, met with management to discuss the result of its investigation. She was given a letter documenting its findings. The company stated that after speaking with the parties and witnesses, it confirmed that Boutcher had made a comment that he was going to ask a co-worker to “grab her ass”. It could not find evidence that Boutcher had made the “trying to get laid” comment. The company found that Boutcher did touch the applicant’s shoulder on April 23 and indicated that he was “right behind her”, but did not find evidence that he had said this three times into her ear. The company stated that it was a common practice when mailers are required to pass by inserters on the line to get to various hoppers to let someone verbally know they are passing by. Further, the company stated that mailers will touch an elbow or shoulder as they are passing by because inserters are wearing ear protection and may have difficulty hearing someone else. The company thus concluded that the act of touching the applicant’s shoulder and verbally letting her know the he was “right behind her” did occur, but it was not done in a harassing manner.
31The company indicated that it would be taking action with respect to the first incident that it concluded did amount to personal harassment. It also indicated to her at the meeting that it would undertake to ensure that she was not scheduled on the same line as Boutcher and advise its supervisors of this. The applicant was not satisfied with this and stated that she wished to have a guarantee that she would never be in the same building at the same time as Boutcher. The company stated that such a guarantee was not operationally possible, as there may be emergency reasons that would require Boutcher to attend to her line.
32The applicant and her union representative requested that the company’s assurances about scheduling be put in writing, and the company followed up with a letter dated July 9, 2008. The letter stated that the company would make every possible attempt to not schedule her and Boutcher on the same line. It stated that it could not absolutely guarantee that Boutcher may not have to come over to a line she was working on for a pertinent or emergency production situation, but it would not purposely schedule them together on the same line.
33At the hearing, the applicant acknowledged receiving the letter, but stated that “this is not what I asked for”. At one point in the hearing, when asked why the letter was insufficient, she stated that she did not ever want to work when Boutcher was in the same building. At another point in her evidence, she stated that the letter was not sufficient because she did not believe that the company would follow through on its assurance.
34It appears that over time, certain events took on greater prominence in the applicant’s mind than they had initially. At the hearing, one of her main allegations of harassment was that Boutcher had tried to trip her while she was working. According to the applicant, Boutcher lay down on the ground in front of her, creating a tripping hazard for her. She felt that he was retaliating against her for having made a complaint about the March 14 incidents. Later, this was one of the reasons that the applicant refused to return to work unless she was guaranteed she would never have to be in the same building at the same time as Boutcher.
35The applicant testified that she had told the company about this sometime before June 2, 2008 but this allegation is absent from her written complaint to the company of June 4. She also did not mention it to her union representative when she met with him on May 27 and then again to draft her written complaint. The applicant states that the same type of incident occurred once again after June 24, but she never raised it with the company.
36Although it is not clear when she raised the first tripping incident with the company, the applicant stated that the company’s response to her was that it was likely that Boutcher was reaching under machinery for inserts.
37The applicant also stated at the hearing that she felt that she was experiencing other retaliation for having made a harassment complaint. She referred to receiving criticism of her work from other linesmen (who she took to be Boutcher’s friends). Again, this is not mentioned in her written complaint to the company and based on her evidence, it does not appear that she provided any details beyond this general statement.
38The applicant testified at the hearing that there were times when she felt that Boutcher was near her line without a legitimate reason. She also alleged that Boutcher embarrassed her on at least one occasion when her line was shut down and he refused to attend her line. She testified that she raised this during a phone conversation with the company’s human resources manager, who responded that it was likely that Boutcher had acted in that way because he had been instructed not to have contact with her.
39Over the course of these months, the applicant also raised two additional allegations about Boutcher’s interactions with other female employees, based on what she had been told by others, and the company conducted further interviews with other employees in response to these.
40As is apparent, over the course of time, during meetings or conversations, the applicant raised additional complaints about Boutcher beyond those contained in her written complaint. The company responded to those complaints as they arose, by either discussing them with the applicant or interviewing additional employees. Some of these additional complaints were not seen as warranting further investigation.
ANALYSIS – WHETHER THE COMPANY VIOLATED THE CODE
41One of the reasons the applicant felt that the company had not responded appropriately to her complaints was her belief that it had not followed its own Harassment Policy. She felt the company had not made any efforts to determine all of the employees who were on her shift on March 14, 2008, the date of the initial incidents. She also stated that the company had not made adequate efforts to follow through on its early assurances that it would attempt to schedule her so that she did not work together with Boutcher. She stated that it did not follow through on some of her allegations, such as her belief that she was experiencing retaliation in the workplace. At the time she left the workplace, she had taken the position that the company was under an obligation to guarantee that she would never be in the same building as Boutcher at the same time. She also wished to see Boutcher receive discipline and indeed, felt he should be discharged.
42At the end of the day, even on the applicant’s evidence alone, it is clear that both the company and the union took many steps to respond to the applicant’s concerns. Initially, her complaint was about the incidents of March 14 and then later, about the incidents of April 23. The applicant raised the matter informally with her supervisor after March 19, without requesting more than that someone speak to Boutcher. A week or so later, she approached another supervisor and asked not to be scheduled on the same line as Boutcher. It was not until after April 23 that the applicant, through her union, began to press the company to respond more concretely, which led to a number of meetings over the course of the next month.
43When the applicant was not satisfied with the informal resolution, and decided to make a written complaint, the company began a formal investigation almost immediately. It investigated the incidents as documented in her written complaint and interviewed the key employees involved. It found one allegation substantiated and the others not. On the evidence before me, I find no basis for a conclusion that the resolution that the company offered as a result of its investigation was inadequate to address her complaint of sexual harassment.
44The evidence does not support the applicant’s position that the company’s response violated its obligations under the Code or even that it failed to comply with its Harassment Policy. Even on her evidence, the company responded when she raised her concerns, seeking informal resolution when she began raising the issue informally, and initiating a formal investigation when the applicant decided to make a written complaint. Despite the applicant’s insistence that the company had not complied with its Harassment Policy, I see no basis for such a conclusion. The company was not required under its policy to interview every person who was working on her shift, when it was clear who the central persons involved were. The company was not required to dismiss Boutcher, as the applicant believed.
45As the applicant continued to raise new issues, the company responded to them. When she made additional allegations against Boutcher, even when they did not involve the applicant directly, the company considered them and addressed them. The fact that the company concluded without further investigation that there were reasonable explanations for some of the issues she raised does not lead to the conclusion that it failed in its obligations to address her complaints. That the applicant did not agree with the ultimate resolution proposed by the company is also not a basis for finding that the company violated the Code.
46The applicant also took issue with the fact that although the company stated in the June 24 letter that action would be taken with respect to the incident it found substantiated, it did not wish to disclose what disciplinary action it intended to take. In fact, that day, the company issued a “verbal warning” letter to Boutcher in response to this incident. The applicant felt this refusal to tell her about the specific discipline imposed was in contravention of the company’s policy which states that “any recommendations or actions that arise as a result of the complaint will be provided to the appropriate parties.” The company’s policy does not require it to disclose disciplinary action against another employee and its refusal to do so does not support the applicant’s position that the company failed to adequately address her complaint of sexual harassment.
47At several points in the applicant’s evidence, she made assertions about remarks or responses of various company managers and supervisors to her complaints, stating that one or two of them “laughed at her”, that the company told her that it “could not control” Boutcher, and that the company told her that Boutcher was a “thirty-year employee”. It became apparent over the course of her evidence that the applicant took certain events out of context, ascribing a significance to them that was far greater than was warranted. The comment about the company not “controlling” Boutcher, for example, was made during the course of a discussion about why the company could not compel him to provide an apology against his will. The applicant took the comment, however, to mean that the company was acknowledging that Boutcher was “out of control.”
48Even if I accept that on one or two occasions (the applicant’s evidence was not consistent on this), someone from the company laughed during a discussion about her complaints, it does not lead me to conclude that the company did not take her concerns seriously. The applicant provided no context for this evidence and no details about the surrounding discussions. Given the other ways in which the applicant misinterpreted events or conversations, or amplified their significance, I cannot give this evidence any weight.
49In sum, on the basis of the applicant’s evidence, and even without hearing the evidence of the company, I am not convinced that the applicant has shown a complete and sufficient basis for a finding it has violated the Code. Having regard to the factors described in Laskowska above and other decisions of the Tribunal, there is no basis for finding that the company failed to take reasonable steps to investigate and address her concerns.
EVIDENCE – THE REPRISAL ALLEGATION
50The applicant worked another four to six shifts after June 24, but then decided not to return to work. She states that the reason was that there was one occasion at work when her line broke and it was Boutcher’s job to fix it and he refused to do it because the applicant was there. She stated that it was then that she decided to go on a “leave of absence.” She called in sick, and got a doctor’s note after the third day. The note, which was faxed to the company on July 28, states that the applicant was “under considerable stress at work and is requesting a leave of absence from this job due to this stress. She feels that she cannot return to work in the presence of one of her supervisors.”
51The applicant stated that she had initially intended to follow the company’s internal appeals process for appealing the results of its investigation, but after consulting with a lawyer, decided to file this Application instead.
52The applicant stated that although she provided this doctor’s note, and had initially called in sick, she was not off work because she was sick. She did not seek or send in any medical documentation to support her absence from work after she sent the note of July 28, although she did tell the company that she had a doctor’s appointment on September 15. The applicant stated that she had decided to take a leave of absence until she felt able to return to work with the guarantee that she would not have to work with Boutcher. She did not believe that the company would follow through on the assurances in its letter of July 9. Her intent was to find other work while her Application was proceeding, and in fact she found part-time employment elsewhere starting in October 2008.
53The applicant did not respond to attempts by the company to contact her in the months of August and September. In early October, the applicant contacted the company asking for a Record of Employment. She informed the company that she would not be returning to work until Boutcher was out of the workplace and that she felt it was dangerous.
54In early November, she phoned the company to ask for her outstanding vacation pay. The company sent her a letter in response stating that she had not been paid her outstanding vacation pay because it did not understand that she was terminating her employment. It stated that if she did not intend to terminate her employment, the company required updated medical information from her to substantiate her continued absence from work.
55The applicant viewed this letter as a threat, and connected it to the fact that a mediation had been scheduled on her Application for November. She made it known to the company that she viewed it as a threat and, as well, that she was not on a medical leave of absence. She left several voice mail messages with the company in response to its letter, stating: she was on a “leave of absence”, that she did intend to come back to work but not before her human rights application was settled, and if the company wanted a doctor’s note she would get a doctor’s note.
56In response, the company sent her a letter advising that while her intentions were not entirely clear, it appeared that she wished to remain on a leave of absence pending resolution of her human rights application. It stated that she had never been approved for a leave for such a purpose, nor would the company grant such a leave. The company stated that she was initially approved to be off work on sick leave but had not provided sufficient medical documentation to substantiate an ongoing leave. The company enclosed a copy of a medical form that it required her doctor to complete.
57The applicant responded by advising the company that she had a doctor’s appointment for January 20 and would not be able to provide documentation until after that. She did not send in the medical form and by letter dated February 3, 2009, the company again requested medical support for her absence.
58In the absence of a response from the applicant, the company sent her a further letter dated March 23, 2009, indicating that if she did not provide the requested documentation by March 27, her employment would be in jeopardy. The applicant did not respond, and by letter dated April 17, 2009, the company advised her that her employment was terminated as a result of her failure to comply with its requests for updated medical documentation to substantiate a continued medical leave.
59The applicant’s explanation for not providing any medical documentation was that she was not sick, and as well that it was on the direction of her lawyer.
REPRISAL
60I find that the applicant has not provided evidence that is complete and sufficient to lead to a conclusion that her dismissal was intended as retaliation for claiming and enforcing her rights under the Code. I note that an individual need not prove that their rights have in fact been infringed to claim protection of section 8. My finding that the applicant has not established a prima facie case of a violation of her rights under the Code does not preclude her from establishing that her rights under section 8 have been violated. However, I find no basis in the evidence for a claim of reprisal here.
61On the applicant’s own evidence, she left work on a leave of absence which she initially called a “sick leave”. She provided a doctor’s note which the company accepted. However, the applicant later expressed the position that she was on a “leave of absence” pending resolution of her human rights claim, rather than a medical absence. The company made it clear that unless she had medical documentation, she would be considered as being on an unauthorized leave. The applicant responded by suggesting that she intended to provide medical documentation, but then took no steps to do so. She did not respond to the company’s letters and warnings that her employment would be in jeopardy unless she provided support for her absence.
62Nothing in the applicant’s evidence or in any of the material disclosed by the company gives rise to any inference that its actions were motivated by a desire to retaliate against the applicant for having filed this Application, or for having made her complaints about Boutcher. The fact that the company treated her absence as an unauthorized leave of absence is not evidence, in and of itself, of a reprisal. Even after the applicant filed this Application, there is nothing in the Code that precluded the company from following its normal processes in dealing with an absentee employee. On these facts, there was no reasonable basis for the applicant’s view that it was “dangerous” for her to return to work, and that she was entitled to remain off work until the disposition of her Application. On these facts, the applicant was not dismissed because she filed this Application; she was dismissed because she was absent from work without authorization.
THE ALLEGATIONS AGAINST THE UNION AND PAUL MORSE
63The applicant was accompanied by union representatives for most of her meetings with the company. Initially, when her concerns came to light, the vice-chair of her bargaining unit, Gillian Surette-Robinson, spoke with the union steward representing Boutcher (he was in a different bargaining unit). When this did not resolve the applicant’s concerns, Surette-Robinson helped her set up meetings with management. When that did not result in resolution, the unit chair, Paul Morse became involved and attended further meetings with her. When the applicant decided she wished to file a formal written complaint, Morse helped her with the drafting.
64After the June 24 meeting, the applicant did not seek the union’s help. She left a voice message with the company’s human resources manager on July 4 stating that she intended to appeal its findings, but did not follow up with either the company or the union. After the union heard that she had stopped attending work, Morse left a voice message for her inquiring about her and reminding her that she was required to provide the company with medical documentation to explain her absence. The applicant did not respond to the message and made no efforts to contact the union again.
65The applicant stated that she felt the union’s job was done, since the union could not get her what she wanted. She also testified that she sought legal advice at the time she filed her Application, and that after that, she felt she was done with the union.
66Her Application, filed in August 2008, named the union as a respondent. The union retained counsel, and when the company sent the letter in November which the applicant took as a threat, she contacted the union’s counsel, who forwarded her correspondence to the union. There is no evidence about the contents of this correspondence, but she did not contact the union again.
67In her evidence, when asked if she felt that Surette-Robinson had done anything inappropriate in her representation of her, the applicant replied no, although she also stated that she felt Surette-Robinson had said nothing during one meeting when a member of management laughed at her. When asked about Morse, the personal respondent, the applicant stated that he had re-written her written complaint after she had finished typing it, and taken out a description of one of the witnesses as a “union steward”. The applicant felt this was an important detail. She did not raise this with Morse at the time, but made a point of it at the hearing. When she learned that this witness did not corroborate her account of this incident during the company’s investigation, she took this as a lack of support from the union. She took Morse’s removal of the title “union steward” from the witness as additional evidence of that lack of support.
68In her evidence, she described her discussions with the union, its representation of her at the various meetings with management, its assistance with the drafting of the written complaint, and its advice to her throughout. The applicant acknowledged that they assisted her throughout, and that ultimately, it could not dictate to the company what it should do. She agreed that although she wanted the union to push harder, it was the company’s decision what action to take on her complaint.
69I find that the applicant’s evidence does not provide a complete and sufficient basis on which to find that the union violated the Code in its representation of her. There is simply no basis on which to find that the union discriminated against the applicant on the basis of her gender, or gave her concerns less weight or took them less seriously because they were sexual harassment allegations. Even on the applicant’s own evidence, the union devoted much time and thought to its representation of her throughout the process of dealing with her complaints in the workplace. Even if the applicant’s evidence about specific instances where she had concerns about the union’s conduct is true, they are isolated and ultimately inconsequential events in the context of the union’s actions as a whole.
70Although it was not specifically put forward as part of her complaint against the union, I have considered whether the events after the applicant left the workplace could establish any liability under the Code against the union. I find that they cannot. The union was aware that the applicant was refusing to return to the workplace. Morse tried to contact her and advise her about her obligations to provide substantiation for her absence. The applicant did not return his call, and did not seek the union’s assistance again apart from the one correspondence to union counsel. There is no basis in any of the applicant’s evidence about these events for a finding that the union discriminated against the applicant in its representation of her.
71In the result, the Application is dismissed.
Dated at Toronto, this 7th day of October, 2010.
“Signed by”
Sherry Liang
Vice-chair