HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Angelina Cormier
Applicant
-and-
Caradoc Sands Golf Course Ltd.
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Cormier v. Caradoc Sands Golf Course
APPEARANCES
Angelina Cormier, Applicant ) Self-represented
Caradoc Sands Golf Course Ltd., ) Denton Hackney,
Respondent )
1Angelina Cormier, the applicant, alleges in her Application that Caradoc Sands Golf Course (the “respondent” or “Caradoc Sands”) discriminated against her in employment on the basis of sex contrary to section 5 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant further alleges that she was subject to reprisal or the threat of reprisal by the respondent contrary to section 8 of the Code.
2The applicant alleges that she was sexually harassed by a patron of Caradoc Sands on the evening of July 26, 2008 and that the respondent’s actions contributed to the customer’s inappropriate behaviour on that evening. She further contends that the respondent’s subsequent response to her complaints about the events of July 26 was inappropriate and inadequate and that as a result she continued to be exposed to an unsafe working environment that ultimately led to her having to quit her employment. The respondent argues that the applicant has not shown that the respondent’s actions on that night were inappropriate. The respondent contends that its subsequent response to the events of that evening was reasonable and appropriate under the circumstances.
DECISION
3The Application is dismissed. I do not find the applicant’s allegations in regards to the respondent’s actions on July 26 to be credible and reliable and I prefer the respondent’s account of events. I find the respondent’s subsequent response to be reasonable and in accordance with its obligations under the Code. I have made no findings as to whether the applicant was harassed by the customer in question as this is not an issue I need to determine in this case.
THE EVENTS OF JULY 26, 2008
4The applicant began working for Caradoc Sands in May 2008, primarily as a server in the respondent’s clubhouse. On July 26, 2008 a golf tournament was held at Caradoc Sands followed by a banquet dinner in the clubhouse. One of the applicant’s responsibilities after the dinner was to tend bar and serve drinks. The applicant claims that this included serving drinks to patrons on the patio through a “service window”.
5The applicant testified that later in the evening, when most of the persons attending the dinner had left, a patron, Kevin Kingma, came up to her at the service window to order a drink. She testified that while at the service window Mr. Kingma opened his shirt to flaunt his chest and then asked the applicant if she wished to touch his chest. The applicant testified that she said no thank you but that shortly afterwards Mr. Kingma grabbed her hand and put it on her chest saying that he knew that she wanted to touch his chest. The applicant testified that she believed that Mr. Kingma had been drinking and that she believed that alcohol was, in some measure, a factor in his behaviour. The applicant testified that she did not bring this alleged behaviour to the respondent’s attention on July 26.
6The applicant testified that patrons continued to leave to the point that only a particular few were left, principally a group celebrating the birthday of Denton Hackney, Caradoc Sands’ general manager. Mr. Hackney was sitting at a table on the patio with Mr. Kingma, and their spouses, Tina Hackney and Dana Capra.
7The applicant testified that later in the evening Mr. Hackney came onto the public address (“p.a.”) system to announce that Mr. Kingma would be doing a fashion show. The applicant subsequently testified that Mr. Hackney announced that Mr. Kingma was to “come to women’s lingerie” in a manner that mimicked an announcement over a p.a. system in a department store. The applicant testified that shortly thereafter Mr. Kingma came through the dining room dressed only in a woman’s thong, appearing before Mr. Hackney, Ms. Hackney and Ms. Capra.
8The applicant testified that shortly after this - this was now after midnight - she heard a knock on the service window and peered outside only to see Mr. Kingma completely naked and waving his penis. The applicant testified that she believed that Mr. Kingma’s primary “audience” were persons on the patio but that he had deliberately knocked on the window to get her attention.
9The applicant testified that within 30 seconds of this incident she telephoned her husband to ask what she should do as she felt in shock and was decidedly uncomfortable about the situation. The applicant stated that her husband subsequently called a mutual friend, Constable Keith VanRooyen of the Strathroy Caradoc Police Force for advice. Constable VanRooyen, was on duty at the time and indicated that he would come to the golf club in order to respond to the applicant’s concerns. Constable VanRooyen arrived at the golf club 30-45 minutes later and spoke to the applicant and subsequently to Mr. Hackney. Constable VanRooyen suggested to Mr. Hackney that those remaining at the club should call it a night which they promptly did.
10Mr. Kingma testified that he did not ask the applicant to touch his chest or grab her hand to touch his chest. He testified that he did not recall having ordered any drinks through the service window. He testified that he did not have any interaction with the applicant that evening and did not recall what she looked like. He testified that he did not hear Mr. Hackney make any announcement over the p.a. system and denied having appeared in the dining room in women’s underwear.
11Mr. Kingma testified that he had indeed striped naked outside but that this had been done as a joke to celebrate Mr. Hackney’s birthday. He described having taken his clothes outside the clubhouse, having come around the corner of the building, having grabbed a small round metal disc off a table on the patio to hold over his penis and having appeared in this fashion before Mr. Hackney and their two spouses. Mr. Kingma testified that he then climbed on a fence and onto the built in barbecue before he came down in response to a request by Mr. Hackney that he put his clothes back on. Mr. Kingma denied having knocked on the side window or having waved his penis, stating that he had, at all times, kept his penis covered. Mr. Kingma estimated that he had been naked for approximately two minutes. He acknowledged he was drinking but stated that this did not impair his recollection of the evening. Mr. Kingma testified that he has not been back to Caradoc Sands since July 26, 2008.
12Mr. Hackney testified that he did not use the p.a. system to make any comments about Mr. Kingma performing and he denied that Mr. Kingma appeared in the dining room in a women’s thong. Mr. Hackney did not recall anyone using the service window to order drinks that evening which he felt was not unusual since the window is seldom used. He testified that late in the evening Mr. Kingma did appear on the patio from around the corner of the clubhouse naked except for a small round object he was holding to cover his penis. Mr. Hackney stated that he asked Mr. Kingma what he was doing and that Mr. Kingma proceeded to climb a railing and onto a built in barbecue before getting down and getting dressed in response to Mr. Hackney’s request that he put his clothes on.
13I also heard testimony from Tina Hackney, Dana Capra, and Judy Mahovolich, the server who had been serving drinks on the patio as to what they saw that evening. In brief, Tina Hackney and Dana Capra both testified that they were served drinks all evening by Ms. Mahovolich until she left and that after that Ms. Hackney had gone to the bar to get a round of drinks. They testified that they never saw Mr. Kingma go to the service window or any interaction between Mr. Kingma and the applicant. They both testified that Mr. Kingma came around the corner of the clubhouse naked but holding a small disc in front of his penis and that he clambered up onto the fence before being told to get down and dressed by Mr. Hackney. They both denied hearing any announcement on the p.a. system or seeing Mr. Kingma in a thong. Ms. Mahovolich testified that she was the only one who served drinks to the table and that it would have been highly unusual for anyone to use the service window. She testified that she was aware that Ms. Hackney had gone to get one round of drinks. She testified that her shift ended at 11:00 and she was present on the patio until approximately 11:30.
14Constable VanRooyen testified that when he arrived at Caradoc Sands he first met with the applicant who was visibly shaken. He testified that she told him that she was the only server present and had witnessed a patron take his clothes off and dance in front of the service window, shaking his penis. He testified that the applicant had told him that earlier that evening that Mr. Kingma had been aggressive with her. Constable VanRooyen could not recall whether the applicant specifically said Mr. Kingma put her hand on his chest. He testified that the applicant did not mention the incident with Mr. Kingma in a thong. The applicant asked Constable VanRooyen to stay until she was scheduled to leave.
15Constable VanRooyen testified that he did discuss with the applicant her options and that those included pursuing a criminal charge against Mr. Kingma for sexual assault and that she may have civil recourse against Caradoc Sands.
EVENTS FOLLOWING JULY 26, 2008
16The applicant testified that on July 27 she arranged to meet with Mr. Frank Toth, the owner of Caradoc Sands, to speak about what had occurred the night before. The applicant testified that she told Mr. Toth what had happened and that Mr. Toth told her that what had happened was not appropriate and that he would handle matters. A concern of the applicant is that she never again heard directly from Mr. Toth.
17The applicant testified that she met briefly with her immediate supervisor, Ms. Walters, the respondent’s Food and Beverage manager on July 28 and then again on July 31 for a more fulsome meeting. She testified that Ms. Walters asked her about what happened on July 26 (although she seemed to already know some of the details) and then proceeded to emphasize that the applicant should have come to her not Mr. Toth about what happened and that in future the applicant should come to Ms. Walters first. The applicant testified that she raised concerns about her future safety noting that sometimes she is the only staff person left to close the Clubhouse. The applicant testified that Ms. Walters did not apologize to her although she offered some assistance by saying that she was always accessible by telephone and that she would come if needed by the applicant. The applicant stated that she found Ms. Walters’ general response to her anxiety about the events of July 26 and concerns about her ongoing work environment to be inadequate.
18Ms. Walters’ account of her meetings with the applicant is decidedly different. Ms. Walters testified that she had been told by Mr. Hackney on July 27 of the events of the previous night and that he had asked her to make sure the applicant was alright. Ms. Walters testified that she wanted to set up a formal meeting to do this but that she met briefly with the applicant on Tuesday, July 28 at which time the applicant told her that Ms. Walters would not believe what happened to her on Saturday night in a manner that Ms. Walters interpreted as “gossipy” and less anxious. Ms. Walters testified that at her formal meeting with the applicant on July 31 she asked the applicant to recount her story of what had happened on July 26. Ms. Walters recalls the applicant telling her of the encounter with Mr. Kingma and the “chest incident”, of Mr. Kingma running around naked and fondling his penis in front of the service window and the applicant describing feeling uncomfortable and needing to call her husband. Ms. Walters stated she did not recall any reference to the incident with Mr. Kingma wearing a thong.
19Ms. Waters testified that after hearing this account she apologized on behalf of the club for whatever discomfort the applicant may have felt on July 26. She testified that she asked the applicant if there was anything further the club could do in regards to July 26 and that the applicant remained silent and provided no response. Ms. Walters testified that she repeatedly emphasized that she was always available as the applicant’s immediate supervisor and could be contacted by the applicant if the applicant had any further issues or difficulties.
20Ms. Walters testified that she had a follow up meeting with Mr. Hackney and Mr. Toth on August 4 at which time they reviewed the information Ms. Walters had gathered about the evening of July 26. She testified that it was decided that the respondent did have the right mechanism in place for any future issues that might arise which was the respondent’s workplace harassment policy which sets out a protocol for employees to come forward with complaints regarding harassment or discrimination. The workplace harassment policy is part of the respondent’s orientation package that is provided to and discussed with all new employees (as had been done with the applicant). Ms. Walters testified that the respondent was not investigating or following up on any of the specific events of July 26 as it had been taken out of their hands by the fact that the applicant had gone to the police.
21Mr. Hackney testified that Mr. Toth had come to him on July 27 upset that there had been an incident in which the police had to come to the club. Mr. Hackney testified that he advised Mr. Toth that he would ask Ms. Walters to meet with the applicant and that they would handle the situation the best they could. Mr. Hackney testified that he believed that the police were going to investigate the alleged actions of Mr. Kingma on the night of July 26 but that he did want to make sure the applicant was alright and asked Ms. Walters to meet with the applicant. He testified that Ms. Walters later told him that at the July 30 meeting she had discussed with the applicant what had happened on July 26, had apologised on behalf of the club and had asked if there was anything the applicant wanted done to which the applicant said no.
22Mr. Hackney testified that no special measures were implemented as a result of the meeting between the applicant and Ms. Walters on July 31 and that the expectation was that, in future, the applicant would come to Ms. Walters, her immediate supervisor, if she had any further difficulties. Mr. Hackney also testified that he formally met with Ms. Walters and Mr. Toth on August 4 to review the applicant’s situation at which time Ms. Walters indicated that she felt matters had been resolved and no further action by the respondent was needed.
23Mr. Hackney testified that after the incident of July 26 he did go to each individual staff member to remind them of the respondent’s workplace harassment policy and that if they remembered what to do if harassed. The protocol under the policy is for employees to immediately report harassment to their supervisor “with details of the situation so that proper action may be taken”.
24The applicant testified that within one or two weeks of July 26 she went to visit a lawyer to discuss her possible legal options including whether she should press criminal charges against Mr. Kingma or take legal action against Caradoc Sands. She testified that in light of her contemplating legal action her lawyer advised her not to discuss matters with Caradoc Sands and to record any actions they might take. The applicant testified that she decided that she would not pursue criminal charges. She testified about wanting to be kind of heart, of not wanting Mr. Kingma to have problems and to pay for a mistake he made while drunk for the rest of his life.
25The applicant testified that she also determined by the time she went to visit her lawyer that she no longer wanted to work for the respondent. The applicant did continue to work for Caradoc until September 7, 2008. The applicant testified that there were no further incidents of harassment after July 26, 2008.
ANALYSIS
26The principal issues I must determine are:
Is the respondent responsible, in some manner, for the alleged harassment on July 26?
Has the respondent complied with its obligations under the Code to respond to an allegation of harassment made by an employee?
Is the respondent responsible, in some manner, for the alleged harassment on July 26?
27At the hearing both the applicant and respondent were keen to lead evidence and made submissions on the issue of whether Mr. Kingma harassed the applicant on July 26. However, it is important for the parties to understand that the determination I must make as to whether there has been a violation of the Code is in relation to the actions of the named respondent, Caradoc Sands, not Mr. Kingma, a customer of the respondent who is not a party to the Application.
28In considering the respondent’s actions of July 26 the issue is whether the respondent encouraged or condoned conduct that should be known to be inappropriate or unwelcome in the workplace. Did Mr. Hackney invite Mr. Kingma over the p.a. system to come to a fashion show or “to the lingerie department” after which Mr. Kingma appeared in the clubhouse dressed only in woman’s underwear? Did Mr. Hackney encourage Mr. Kingma in some fashion when he appeared naked on the patio? These are important questions because, if I was to find that Mr. Hackney did, in some manner, encourage or facilitate Mr. Kingma’s actions during the evening of July 26, I could potentially further find that the respondent had some responsibility for creating a situation in which an employee had to contend with unwanted sexual actions in the workplace. This would be a violation of the Code.
29However, I am satisfied that Mr. Hackney did not encourage or condone Mr. Kingma’s behaviour on July 26. I prefer the testimony of Mr. Hackney, and three further witnesses, that he did not encourage Mr. Kingma to appear in a woman’s thong to the testimony of the applicant. I accept the testimony of Mr. Hackney and these three further witnesses that Mr. Kingma, on his own initiative, appeared naked on the patio after which Mr. Hackney asked him to stop and to put his clothes back on.
30These findings do involve assessments of the credibility of the witnesses. In determining credibility, I follow the Tribunal’s usual practice of relying on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour 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 is reasonable in that place and in those conditions…
31The applicant’s allegation that Mr. Hackney appeared on the p.a. system to invite Mr. Kingma to a fashion show or to “women’s lingerie” does not appear in the Application, it was first raised at the hearing. The Application only refers to the allegation that Mr. Kingma appeared, at one point, on July 26 in a women’s thong. Mr. Hackney, Mr. Kingma, Ms. Hackney and Ms. Capra all testified that Mr. Kingma did not appear at any point in the evening of July 26 in women’s underwear. The testimony of these four witnesses on this point was adamant. However, more important for me was the testimony of these witnesses about Mr. Hackney and the use of the p.a. system during the evening of July 26. These witnesses could not have had foreknowledge of the applicant’s evidence that Mr. Hackney had used the p.a. system apparently to encourage Mr. Kingma. Significantly these witnesses provided highly consistent answers to initial questions about whether the p.a. system had been used and whether Mr. Hackney had used the p.a. at all. In the end all four witnesses testified that Mr. Hackney had not called for Mr. Kingma over the p.a. system.
32I recognize the close personal relationships of these four witnesses and so their collective testimony, while highly consistent, was hardly decisive evidence. Of further importance was the testimony of Constable VanRooyen and Ms. Walters who both clearly stated that the applicant had not identified the incident of Mr. Hackney’s announcement and Mr. Kingma’s appearance in a thong when they respectively met with the applicant on July 26 and on July 31.
33By contrast, I had concerns with the applicant’s testimony. There was an inconsistency in her testimony in that she initially testified that Mr. Hackney had simply announced over the p.a. system that there was to be a fashion show and her later testimony that Mr. Hackney explicitly invited Mr. Kingma to “the lingerie department”. A more troubling aspect of her account was her contention that Mr. Kingma paraded through the clubhouse and in front of Mr. Hackney, Ms. Hackney and Ms. Capra. This is at odds with the testimony, including from the applicant, that this party of four had spent the evening at a table on the patio.
34In the final analysis, I am of the view that the applicant has failed to meet the onus on her to provide credible and reliable evidence to show that Mr. Hackney encouraged Mr. Kingma over the p.a. system. I am of the further view that there is no evidence to indicate that Mr. Hackney encouraged Mr. Kingma when he appeared naked on the patio. I am satisfied that Mr. Hackney did direct Mr. Kingma to stop and to put his clothes back on after appearing on the patio. This was the consistent testimony of Mr. Hackney, Mr. Kingma, Ms. Hackney and Ms. Capra. Importantly Mr. Hackney, Ms. Hackney and Ms. Capra all credibly testified that they were embarrassed by Mr. Kingma’s behaviour and keen for it to end.
35In my view there was a celebration of Mr. Hackney’s birthday which got out of hand when Mr. Kingma appeared on the patio in the nude. It was acknowledged that drinking contributed to this behaviour. I do not accept that Mr. Hackney contributed to Mr. Kingma’s behaviour by encouraging him to earlier take his clothes off and appear in women’s underwear.
36The allegation that Mr. Kingma may have grabbed the applicant’s hand to touch his chest or deliberately played with his penis in front of her are clearly serious allegations but I have not made findings as to whether these actions took place as I do not need to in order to determine whether the respondent’s actions on July 26 violated the Code. In this regard I agree with the Tribunal’s determination in Laskowski v Marineland of Canada Inc. 2005 HRTO 30. Laskowski, is a Tribunal case similar to the case before me in that a non-party to the complaint, the brother of the owner and president of the corporate respondent, was alleged to have sexually harassed an employee of the corporate respondent. In Laskowski the Tribunal helpfully stated:
any findings and conclusions made against a non-party [should] not be “tantamount” to findings of guilt” and [should] only be made if “reasonably necessary to make adverse findings against the [non-party] solely to explain findings and conclusions against the respondent. They should not be articulated in terms of violations of the Code and only as reasonably necessary part of the narrative set out to explain its findings and conclusions against the respondent.
Has the respondent complied with its obligations under the Code to respond to an allegation of harassment made by an employee?
37The Tribunal has held that a respondent has a duty to investigate complaints of discrimination or harassment; that the duty to investigate is the means by which an employer ensures that it is achieving the Code mandated responsibility of operating a discrimination free environment (see Laskowski, para 53). A failure to take reasonable steps to address allegations of discrimination may result in an employer being held liable for violating the Code (see Moffatt v. Kinark Child and Family Services, [1998] O.H.R.B.I.D. No. 19, para 234). The Tribunal has further held that such a duty extends to incidents of discrimination or harassment involving a respondent’s customers (see Laskowski para 57).
38I follow the Tribunal’s practice of relying on the decision in Wall v. University of Waterloo (1990), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 to assess the reasonableness of how an employer investigates or responds to an alleged act of harassment. The Decision in Wall stresses that a response must be prompt and recognize that the conduct complained of is prohibited. It states that the complaint must be dealt with seriously, that an employer must act to provide a healthy work environment and must have a complaints mechanism in place. Wall further stresses that it is important that an employer communicate its actions to the person who complained.
39I am satisfied that Caradoc Sands’ response to the applicant was prompt with a suitable recognition of the importance of responding quickly. On July 27, the same day the applicant came forward to express her concerns to Mr. Toth, the owner of Caradoc Sands, Mr. Toth met with Mr. Hackney and meetings were subsequently arranged between the applicant and her direct supervisor for July 28 and more formally for July 31. It appears a management meeting involving Mr. Toth, Mr. Hackney and Ms. Walters to review the applicant’s concerns and the respondent’s actions was held shortly thereafter, on August 4.
40I am satisfied that the respondent was clearly aware that harassment is a prohibited action under the Code and that the harassment of staff by customers can be an issue that warrants action. The respondent’s orientation package for staff, which was before me, explicitly refers to the Code and an employee’s right to be free from discrimination. The respondent’s workplace harassment policy that forms part of the orientation package, states that Caradoc Sands will “not tolerate any form of harassment and will take all steps necessary to ensure employees are not subject to harassment or discrimination be it from other employees, managers, customers or any contacts made in the course of their duties” and that “an employee shall contact their supervisor immediately with details of the situation so that proper action may be taken”. Both Mr. Hackney and Ms. Walters spoke about their general awareness and concern about employees being exposed to customers who may have been drinking especially given the fact that they have a large male clientele and a mostly young female wait staff.
41I am further satisfied that the respondent treated the applicant’s concerns about July 26 as serious. Caradoc Sands responded quickly and saw that it was important to formally discuss with the applicant about what had happened. However, I am of the view that the respondent determined, at some point, that their response was not going to involve an investigation to determine what had exactly happened on July 26, to determine whether Mr. Kingma had harassed the applicant. This is a significant issue. In most instances one might reasonably expect that an employer, responding to an allegation of discriminatory treatment or harassment brought forward by an employee, would wish to determine whether this discriminatory treatment or harassment took place in order to decide further appropriate actions.
42However, I am of the view that there is a reasonable explanation for why the respondent in the case before me did not proceed with a full investigation. I am satisfied that the respondent believed that there was likely to be a police investigation of what took place given Constable VanRooyen appeared on July 26 in response to the applicant’s complaint about Mr. Kingma’s alleged behaviour. Both Mr. Hackney and Ms. Walters testified that they did not see a role for the respondent in further responding to the incident of July 26 in view of the police involvement. The fact that the allegations focussed on a customer rather than an employee of the respondent also explains, in my view, the willingness of the respondent to defer to the police. It must be noted that the respondent made an assumption that the police would be playing a further investigative role but I find that, under the circumstances, this was not an unreasonable assumption.
43Given the expected police involvement, I find it understandable and reasonable that the respondent turned the focus of its response from a possible investigation to how to manage any future concerns the applicant might have about her working conditions. I am satisfied that this is what Ms. Walters did in her meeting with the applicant on July 31.
44It is relevant to note Ms. Walters also testified that the applicant did not communicate an interest in the respondent taking any specific action in regards to July 26 during their meeting on July 31 which is why, according to Ms. Walters, the meeting then focused on what should happen in the future if the applicant encountered a problem in the workplace. I find Ms. Walters credible in her description of what took place in her meetings with the applicant including on this issue of the applicant failing to identify an interest in a further response to the specific events of July 26. Ms. Walters was forthright and detailed in recalling these meetings and her evidence was persuasive.
45I have also considered the fact that there was some evidence to suggest that the respondent made an early assessment that the applicant’s allegations were less serious, that Mr. Kingma’s actions, at least when he was naked on the patio, were directed to others and did not constitute harassment of the applicant. The respondent certainly argued at the hearing that it was not likely that the applicant was harassed. The issue here is whether the respondent chose not to conduct an investigation because it thought the applicant’s allegations were without merit. I am satisfied that this was not the case for while the respondent may have doubted the strengths of the applicant’s case it was, in my view, also clearly of the opinion that the matter was in the hands of the police.
46I am satisfied that the respondent did act to promote a healthy environment for the applicant following July 26 by meeting with her and confirming the protocol for the applicant to come forward in future if she ever had issues with discrimination or harassment. The applicant did express a concern about working on her own to Ms. Walters. Ms. Walters testified that she communicated the general availability of the applicant’s supervisor or other managers or the owner Mr. Toth (who lives next door to the golf course) if called as a means to respond to this concern; a fact that the applicant acknowledged. The applicant testified that there she experienced no further incidents of harassment or discrimination or incidents that gave rise to concerns about her personal safety after July 26.
47The applicant failed, in my view, to communicate at the hearing how her work environment was unsafe following July 26. It may be that the applicant was anxious as a result of the events of July 26 and disappointed with her meeting of July 31 but there was no evidence that she ever had problems with her work conditions after July 26 or that she ever expressed concerns about her work conditions after July 31. I am not satisfied that the applicant has explained why the respondent’s actions or inactions led her to having to quit her job.
48I do think there is an issue of a lack of communication. Mr. Toth never directly responded to the applicant after July 27. It does not appear there was much, if any, communication after July 31 including after August 4 when the Caradoc Sands’ management concluded that their response had been appropriate and there were no further issues. I am of the view that the respondent could have done a better job particularly given that the applicant had expressed certain anxieties about working. However, it was also open to the applicant to communicate any further concerns that she might have had. She did not.
49Based on the reasons set out above I am satisfied that the respondent did reasonably exercise its duty under the Code to respond to the concern raised by the applicant about July 26 primarily by reinforcing its commitment to its workplace harassment policy and its availability, if needed, to support the applicant in relation to any possible further incidents . It is significant that the applicant encountered no further issues of harassment or discrimination or identified safety issues while employed by the respondent and voiced no further concerns. I do not see how the applicant’s decision to quit can be related to the respondent’s response to her complaint.
50The applicant’s allegation of reprisal was not pursued at the hearing. It would appear that it was made in relation to the respondent’s failure to appropriately respond to the applicant’s complaints about the events of July 26. As I have found that the respondent met its obligations under the Code in relation to its response I find that there is no violation under section 8 of the Code.
51This Application is dismissed.
Dated at Toronto, this 26th day of February, 2010.
“signed by”
Eric Whist
Vice-chair