HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cheryl Popplewell
Applicant
-and-
Canadian Diabetes Association
Respondent
DECISION
Adjudicator: Dale Hewat
Indexed as: Popplewell v. Canadian Diabetes Association
AppearanceS BY
Cheryl Popplewell , Applicant ) Self-represented
Canadian Diabetes Association ) Donna Gallant
Respondent ) Counsel
Introduction
[1] This is an Application filed March 6, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant Cheryl Popplewell self-identifies as a black female. She claims that she was subject to harassment and discrimination over a period of two years and ultimately terminated from her employment as a Telephone Representative for the respondent Canadian Diabetes Association (“the Association”) on August 30, 2007, on the basis of race and colour contrary to sections 5 and 9 of the Code.
[2] With respect to allegations of discrimination the applicant claims the following:
[1] The applicant asserts that after she was transferred to the Canadian Diabetes Niagara Regional Office she was subject to racial discrimination and harassment for a period of two years that escalated between March 2006 and August 2007. Specifically, the applicant claimed that the differential treatment that she was subjected to included receiving six written warnings and three suspensions and by being contacted at home by management in a manner that was harassing and intimidating. In addition, the applicant claimed that discrimination occurred when she was told to seek family counselling and when she was asked repeatedly to come in to the Office for meetings. The applicant states that she was given work assignments that would not generate high productivity levels for her and that other white employees were not treated in the same way as her. In addition, the applicant claimed that complaints by management that her donor telephone messages were not clear were further examples of demeaning and discriminatory behaviour.
[2] The applicant also claims that despite her raising concerns of discrimination with the Association’s Regional Manager, the Area Director and Human Resources she was told that her claims were vexatious and that she was subject to further discipline if she complained again.
3From the applicant’s perspective, while she agreed that behaving disrespectfully in the workplace is unacceptable, she claimed that she did not engage in any of the behaviours that were attributed to her by the Association. The applicant also agreed that it may be appropriate for a supervisor to request to meet with an employee, but in her case, the applicant believed that the meetings were unnecessary and constituted a form of harassment and discrimination because she was contacted at home and believed that other Telephone Representatives were not required to attend the office for meetings.
4The applicant disputes that the termination of her employment on August 30, 2007 was related to insubordination or past poor behaviour issues and instead argues that the real reason for her termination was due to her race and colour.
5The respondents deny that the applicant was subject to discrimination or harassment on the basis of race or colour at any time during her employment. The respondents maintain that the applicant engaged in a course of insubordinate and confrontational behaviour towards her supervisors which necessitated meetings and discussions about the applicant’s performance issues and her allegations of unfair treatment on a more frequent basis than other Telephone Representatives. The respondents assert that it was solely the applicant’s repeated unacceptable workplace behaviour that resulted in the termination of her employment.
DECISION
6The Application is dismissed. What follows are my reasons.
Credibility
7Much of the testimony surrounding the applicant’s discipline record and employment history is disputed. In deciding this Application, it was necessary to assess the credibility of each of the witnesses in order to determine which story makes the most reasonable sense in all of the circumstances. Assessing credibility is not simply an exercise of listening to oral testimony of witnesses and observing their demeanour to decide who appears to be the most truthful. Instead, assessing credibility involves the consideration of a variety of factors.
8In Shah v. George Brown College, 2009 HRTO 920, the Tribunal summarizes its approach to assessing credibility at paragraphs 13 and 14 as follows:
One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
…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.
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 a self-interest in testifying for one of the parties, will be relevant considerations in assessing credibility. Also, in determining whether a party as 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.
9Furthermore, other factors the Tribunal has considered in assessing credibility include the internal consistency of a witness’s evidence, inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witness testified. See Cuglari v. Clubine and Brunet, 2006 HRTO 7.
10Below is a summary of the facts and witnesses’ testimony followed by an analysis of their credibility considering the factors outlined in the Tribunal’s case law that I have cited.
The Facts
11The respondent Association is a registered charity engaged in diabetes research, education and advocacy projects to serve the needs of Canadians with diabetes. The Clothesline division is the Association’s clothing and household collection program, which involves the collection of clothing and household items, which are sold to Value Village stores across Canada to raise money for diabetes research, education and advocacy. The applicant started working for the Association’s Clothesline division in the Hamilton Collection Program on June 7, 2001. On May 26, 2004 the applicant was hired as a Telephone Representative (later renamed as a Customer Service Agent) for the Association’s Niagara Collection Program. Between March 2005 and September 2005, the applicant’s supervisor was Kimberley Grace. The respondent Lynn Obermeyer became the Operations Manager for the Niagara Collection Program and the applicant’s supervisor in January 2006.
12As a Telephone Representative, the applicant worked from home. The applicant also was employed with another company during her employment with the Association which enabled her to perform her Telephone Representative duties during the evening or when she was not working at her other job. Her primary responsibilities included the solicitation of donations of clothing and household items through telephone calls to potential donors based on a calling list supplied weekly by her Operations Manager. Like all Telephone Representatives, the applicant’s productivity level was based on how many donation “promises” she received from potential donors and on the number of donations collected for the assigned pick-up route.
The Applicant’s Employment History
13In terms of the applicant’s formal discipline record, most of which the applicant disputes, she received a verbal warning for refusing to follow instructions of her supervising clerk on April 15, 2002 and received an unsatisfactory performance warning dated April 28, 2005 for swearing and disrespectful behaviour, on April 14 and 21, 2005, toward her supervisor at the time, Kimberley Grace. While under the supervision of Ms. Grace, there were continuous concerns about the applicant’s performance and productivity levels. Ms. Grace met with the applicant on at least three separate occasions, none of which were disciplinary, on April 13, May 19 and June 30, 2005 to discuss her performance and to define job expectations. Part of the discussion focussed on how the applicant spoke on the phone to potential donors.
The Applicant’s Discrimination Complaint against Kimberley Grace
14The applicant believed that she was being treated differently by Ms. Grace due to her race. In response to the applicant’s concerns about alleged discrimination and harassment on the basis of race by Ms. Grace, the applicant was requested by the Area Director, Michelle Roberts, on June 16 and again on August 2, 2005 to advise the Association in writing of her complaint by August 5, 2005.
15Notwithstanding this deadline, the applicant submitted a written complaint dated August 26, 2005 that was received by Ms. Roberts on September 6, 2005. The complaint alleged that Ms. Grace engaged in harassing the applicant on the basis of race because of a number of interactions including asking the applicant to take home a heavy bag of magnets to roll, requesting the applicant to come into work for a meeting on April 14, 2005 concerning work performance and attitude, criticizing the applicant’s time sheets and changing the date for the applicant to pick up her work from the office. The applicant also alleged that another employee was not reprimanded for swearing in the office and complained about how she felt that Ms. Grace smirked at her but at the same time complimented her on her progress as a telephone representative.
16On September 15, 2005 the applicant was advised in writing that the Association would be investigating her complaint of discrimination. On October 4, 2005 the applicant was informed in writing that based on the investigation and interviews conducted there was nothing conclusive to warrant a further investigation by the Association and the matter was considered closed.
2006 Suspensions
17In 2006, the applicant was suspended on three occasions all related to insubordinate behaviour. The first of these suspensions was a one day suspension on March 8, 2006 as a result of the applicant’s unacceptable conduct with her supervisor on February 24 and March 1, 2006. On May 24, 2006 the applicant was issued another one day suspension arising from inappropriate behaviour during a call with Lynn Obermeyer on May 11, 2006. In addition, on August 29, 2006 the applicant received a three day suspension as a result of inappropriate behaviour leading up to and during a meeting held on August 26, 2006 with Lynn Obermeyer and the Regional Manager, Sylvia Krampelj.
18As well, the applicant was issued a warning letter on August 2, 2006 for calling potential donors while she was at her other workplace. In most of the disciplinary letters, the applicant was reminded about the Association’s employee behavioural expectations, including a reminder about the Association’s Code of Conduct, and warned on several occasions that continued insubordinate and inappropriate behaviour would result in further discipline up to and including the termination of her employment.
19The only disciplinary letter the applicant signed was the one issued on August 2, 2006 pertaining to contacting donors from another workplace because, despite alleging that she had been permitted to do this in the past, she acknowledged and understood the Association’s rules for contacting donors.
February 24, 2006 and March 1, 2006 Incidents
20According to the applicant’s evidence relating to the February 24, 2006 incident, she claimed that she had called the office to report a donor complaint about an Association driver concerning a missed pick-up, which resulted in her being kept on the phone for an inordinate amount of time by Ms. Obermeyer and then being required to attend at the office for a meeting on March 1, 2006 which she felt was unnecessary given her limited availability. In her initial testimony the applicant disagreed that she hung-up the phone on Ms. Obermeyer but later admitted that she ended the call and said “goodbye”.
21In contrast, Ms. Obermeyer explained that when she received the phone call from the applicant on February 24, 2006, the conversation started off calmly but when Ms. Obermeyer suggested that the driver might not be at fault, the applicant became upset and began yelling at her and eventually hung-up the phone.
22Ms. Obermeyer also explained that she called the applicant again on February 28, 2006 and asked her to come in for a meeting. From Ms. Obermeyer’s viewpoint, the phone call on February 24, 2006 was not productive and she felt that it would be best to meet with the applicant in person, particularly since Ms. Oberymeyer was new to the her role and did not know about the applicant’s history.
23According to Ms. Obermeyer, and confirmed by Ms. Roberts, who also attended the meeting by phone, the purpose of the March 1, 2006 meeting was two-fold; first, to deal with how the applicant spoke to Ms. Obermeyer on the phone during the February 24, 2006 call and, second, to review and promote a team approach among the telephone representatives, drivers and office staff.
24The respondent’s evidence with respect to the March 1, 2006 meeting was in contrast to the applicant’s who stated that she saw no reason why she was required to attend a meeting and who believed that she was being harassed by Ms. Obermeyer. The applicant testified that during the phone call she didn’t perceive her voice to be loud and explained that this was her manner of communicating. Regarding her demeanour in the March 1 meeting, the applicant stated that she was quiet for most of the meeting.
25Ms. Obermeyer stated that while she initially started the March 1, 2006 meeting in a coaching format focussing on teamwork, as soon as concerns about the applicant’s behaviour were raised the applicant interrupted her, became abusive, called her a liar and alleged that it was Ms. Obermeyer who was rude during the February 24th phone-call. Additionally, Ms. Oberymeyer recalled that the applicant stated that, because she is black, she is not permitted to become angry or raise her voice and accused both her and Ms. Roberts of saying “that all black people are stupid”. Both women vehemently deny this accusation.
26Ms. Robert’s notes, taken during the meeting, support Ms. Obermeyer’s version of events. Ms. Obermeyer recalled that she was shocked by the applicant’s behaviour both on February 24 and March 1, 2006 and decided, after having reviewed the applicant’s prior discipline record and seeking advice from the Association’s Human Resources department, to issue a 1 day suspension.
27On March 8, 2006 Ms. Obermeyer and Ms. Roberts (via conference call) met with the applicant to review the decision to issue a 1 day suspension. The meeting was not confrontational and the suspension letter noted that, following the March 1, 2006 meeting, the applicant and Ms. Obermeyer had a constructive conversation about work expectations. The suspension letter also confirmed the applicant’s unacceptable behaviour as well as setting out the Association’s policy with respect to the requirement to “act always with fairness, honesty, integrity, openness and respect towards others”. The applicant was also encouraged to contact a family counselling service to receive confidential counselling information, possibly subsidized by the Association. The date of the suspension letter was originally noted as March 1 but was later corrected and confirmed with the applicant as being March 8, 2006.
May 11 2006 and May 24 2006
28On May 11, 2006 the applicant called Ms. Obermeyer regarding her productivity reports and how she believed other Telephone Representatives’ productivity levels were higher than hers. After offering an opportunity to the applicant to come into the office to discuss strategies for improving productivity, Ms. Obermeyer recalled the applicant became accusatory and aggressive about the other representatives and also stated that Ms. Obermeyer gave donor promises to her friends.
29In contrast, the applicant did not recall the details of this telephone conversation and instead thought that she spoke with Ms. Obermeyer at the office and recalled agreeing to the idea of coming into the office at a later date to review calling procedures and recording of promises.
30As a result of this telephone conversation on May 11, 2006, Ms. Obermeyer contacted Sylvia Krampelj, Regional Manager, GTA West, Hamilton and Niagara Business Operations and it was determined that a one day suspension was an appropriate response for the applicant’s conduct. Both Ms. Obermeyer and Ms. Krampelj (by conference call) met with the applicant on May 24, 2006 to issue the suspension letter. The applicant refused to sign the letter and alleged that the she was being called into the office “because she is a black woman who called a white woman to complain”.
31Their recollection of that meeting is that the applicant continued to accuse Ms. Obermeyer of favouritism for other Telephone Representatives. They also stated that the applicant eventually agreed to attend at the office for some guidance and assistance with her work which occurred with positive results on May 30, 2006. As well on June 9, 2006 Ms. Obermeyer and the applicant had another positive conversation regarding suggestions for improving productivity levels.
The Applicant’s Discrimination Complaint against Lynn Obermeyer
32Ms. Kramelj also followed up with the applicant about her allegation that she was being discriminated against because of colour by Ms. Obermeyer and asked the applicant to submit a complaint in writing, which the applicant did on June 12, 2006. In that complaint the applicant also included a previous similar complaint that she had raised with respect to her previous supervisor Kimberley Grace.
33Ms. Kramelj conducted an investigation which included speaking with two other staff members who, according to the applicant, believed they were being also being treated differently than new employees by Ms. Obermeyer. Based on her investigation, Ms. Kramelj discovered that Ms. Obermeyer needed to work on providing equal attention to all staff and to focus on professionalism in the office by reducing sharing her personal information. However, Ms. Kramelj was not satisfied that any of the staff, including the applicant, were being treated differently because of race or colour. A letter, dated August 25, 2006, was sent to the applicant confirming that there was nothing conclusive to warrant further investigation and that the matter was closed. The applicant was also reminded that this was the second complaint filed against different managers within one year based on similar accusations and that if another claim is filed that proves to be unsubstantiated, the Association may consider such claim vexatious and subject to discipline.
34During their discussion about the applicant’s claim of racial discrimination, it came to Ms. Kramelj’s attention that the applicant had been making calls to donors from her other place of work. While the applicant testified that she had been permitted to do this in the past by a previous manager, Ms. Kramelj explained that calling donors from another place of work was against the Association’s rules. Ms. Kramelj called and left messages for the applicant at her home on June 26 and 27, 2006 concerning this matter. When the applicant did not respond, Ms. Kramelj sent her a letter requesting that she contact her. The two finally spoke over the phone on July 21, 2006, confirmed by the August 2, 2006 warning letter, in which the applicant was advised that she was not permitted to call donors from her other place of employment.
Events Leading up to the August 29, 2006 Three Day Suspension
35On June 16, 2006 when the applicant called Ms. Obermeyer to ask why she had so few call sheets compared to other Telephone Representatives she described a scenario that Ms. Obermeyer found to be threatening. In that scenario, Ms. Obermeyer recalled the applicant stating the following to her:
suppose my son was in Hamilton walking down the street, and just suppose your daughter was walking across the street, and just suppose a man came up and attacked your daughter and killed her and just suppose my son just stood there and watched because a white woman had suspended his mother?
36During her testimony, the applicant did not agree with the specific wording noted by Ms. Obermeyer but agreed that she used a hypothetical example without suggesting that the girl killed in the scenario was Ms. Obermeyer’s daughter. The applicant explained that she did not view her comments as threatening. Rather, the applicant explained that she was trying to convey to Ms. Obermeyer how a child whose parent has been subject to discrimination on the basis of colour or race might be affected and do nothing to save the child of the perpetrator of the discriminatory conduct.
37During July 2006, there were three donor complaints about the applicant’s phone messages and concerns by Ms. Obermeyer about what she considered to be a rude note on the applicant’s time sheets. In addition, according to Ms. Obermeyer, the applicant demonstrated aggressive behaviour on July 28, 2006 when Ms. Obermeyer contacted her to ask if the applicant would be available to come into the office to meet to discuss some work performance concerns. During the conversation on July 28, 2006 Ms. Obermeyer recalled that the applicant yelled at her, told her to do “whatever’, accused her of harassing her and hung up the phone on her. It was not disputed that the applicant called Ms. Obermeyer back on July 31, 2006 and agreed to attend a meeting on August 2, 2006.
38The applicant met with Ms. Obermeyer and Ms. Krampelj on August 2, 2006. The purpose of that meeting was to review and seek an explanation from the applicant about the performance issues that had arisen in late June and July 2006. Both Ms. Obermeyer and Ms. Krampelj, recalled that during the meeting the applicant spoke to them in a derogatory fashion and was uncooperative. When told about donor complaints regarding the applicant’s garbled telephone messages, the applicant explained that one of the potential donors was “deaf” and also said that any problems with the clarity of her voice was due to the type of headset she had been using.
39As a result of the applicant’s behaviour in the meeting and some of the events leading up to the meeting, including the comments made to Ms. Obermeyer on June 16, 2006 and the fact that the applicant hung up the phone on Ms. Obermeyer on July 28, 2006, a three day suspension was issued to the applicant on August 29, 2006.
August 29 to December 2006
40For the period between August 29, 2006 until December 6, 2006 there were no significant issues involving the applicant and Ms. Obermeyer believed that things were improving. On December 6, 2006 the applicant called Ms. Obermeyer and briefly conveyed concerns about her low productivity levels. According to Ms. Obermeyer, the applicant alleged that office staff was manipulating the system of assigning potential donor contacts and promises. At the conclusion of the December 6, 2006 phone-call, Ms. Obermeyer asked the applicant to contact her when the applicant had more time to review details about her specific concerns.
41On February 2, 2007 Ms. Obermeyer wrote to the applicant to again remind her that she would be available to speak with the applicant about her productivity concerns, that there was an open door policy, and gave the applicant a deadline of February 16, 2007 to respond.
42Ms. Obermeyer met with the applicant on February 19, 2007 to discuss her 2006 job performance evaluation and it was at this meeting that the two discussed the applicant’s job productivity concerns. Ms. Obermeyer recalled that in the job evaluation, it was noted that the applicant required improvement in job productivity, team work and professionalism, the last of which had shown some recent improvement.
43As a result of her discussion with the applicant and follow-up with the Human Resources department and Michelle Roberts, Ms. Obermeyer decided that she would conduct an investigation into the applicant’s productivity levels compared to the other Telephone Representatives in her division. The applicant was advised that Ms. Obermeyer would investigate the applicant’s concerns regarding how her donor promises were being recorded.
44Ms. Obermeyer testified that she conducted a detailed investigation of the applicant’s concerns in which she interviewed other employees using four routes that the applicant had been assigned in 2006 and 2007 and compared the call sheets that her and the other Telephone Representatives had submitted. Ms. Obermeyer then reviewed the donor promises recorded by each Telephone Representative, including the applicant, and compared whether the call sheets were accurately recorded. In addition, Ms. Obermeyer reviewed each of the driver’s route sheets which confirmed donation pick-ups in comparison to the donor promises that had been submitted by the Telephone Representatives.
45After completing the investigation, Ms. Obermeyer did not find any evidence to suggest that anyone was misallocating the applicant’s promises and in fact found that in some cases the applicant’s pick-ups were a higher percentage compared to other telephone representatives in some cases and in other cases were lower.
46Ms. Obermeyer met with the applicant on May 2, 2007 to review and discuss the findings of her investigation. She testified that after she explained in detail how she performed the investigation to the applicant and explained her findings, the applicant told her she didn’t believe the documentation, that the investigation meant nothing to her and that the “drivers lie” and it effects her work. Ms. Obermeyer advised the applicant, which was followed up in writing on May 14, 2007, that the investigation was closed but advised the applicant to record any future concerns and inform her immediately.
Termination of Employment
47In August 2007, the Association issued a new job description to all of the Telephone Representatives across Canada, which reflected the change in title to Customer Service Agent. Aside from the change in title, there were no significant changes in the job description and the productivity expectations remained the same at a rate of 6.5 promises per hour. It was not disputed that the applicant returned the job description unsigned along with a number of handwritten comments explaining why she refused to sign and how the Association treated her unfairly. To address the applicant’s concerns Ms. Obermeyer decided that she wanted to meet with her and called the applicant on August 23, 2007 to arrange a meeting for August 30, 2007.
48According to Ms. Obermeyer, when she called the applicant on August 23, 2007 the applicant advised that she required at least two weeks notice for a meeting and that the applicant was very confrontational during the conversation. Nevertheless, Ms. Obermeyer advised that she would contact human resources about rescheduling the meeting and would get back to the applicant.
49However, before Ms. Obermeyer had a chance to determine whether she would defer the August 30, 2007 meeting, the applicant called back. Ms. Obermeyer recalled that the applicant spoke in an accusatory manner alleging that she was called into a meeting because she is black (“the nigger who speaks up”) and yelled at Ms. Obermeyer calling her “two-faced” and referring to both her and Ms. Krampelj as “little jokers”. Ms. Obermeyer also recounted how the applicant also warned Ms. Obermeyer that any wrong doing against the applicant will be “brought upon “her children.
50Following this conversation, Ms. Obermeyer contacted the Human Resources department to seek advice about the applicant’s behaviour. During that afternoon, the applicant called the Association’s office at least four times, which she admitted to in her testimony. According to notes taken at that time, the applicant threatened to keep calling until Ms. Obermeyer stopped harassing her and said that she wanted to speak to Ms. Obermeyer about how she “treats the niggers around here”. Ms. Obermeyer also recalled that at least one of the office staff members was visibly shaken and upset by the applicant’s behaviour.
51After considering the manner in which the applicant had spoken to her and other staff, the reminders to speak and behave in a respectful manner, her prior discipline record and the applicant’s continued abusive actions, Ms. Obermeyer decided that it was necessary to terminate the applicant’s employment.
52Ms. Obermeyer testified that she had planned to present the termination letter during the August 30, 2007 meeting. She sent a letter on August 23, 2007 advising the applicant that she was required to attend a mandatory meeting on August 30, 2007. The applicant did not attend the meeting on August 30, 2007 and the applicant’s letter of termination was sent to her that day.
53The applicant argued that the Association should have changed the date of the meeting since she wasn’t available to attend on August 30, 2007. However, Ms. Obermeyer explained that the decision to terminate the applicant’s employment was not as a result of her failure to attend the meeting on August 30, 2007, but rather due to her continuing pattern of unacceptable behaviour despite the Association’s efforts to re-direct the applicant not only through progressive discipline but also by coaching and responding to the applicant’s concerns by fully investigating her complaints.
Analysis
54In Iqbal v. Inscape Corp. 2009 HRTO 1189, at paragraph 1, the Tribunal states what must be considered in the determination of whether discrimination was a factor in a termination of employment:
My task in resolving this Application is not to decide whether the respondent had just cause to terminate the employment of the applicant…the issue is whether the applicant has met his burden of proof to show, on a balance of probabilities, that one of the prohibited grounds was a factor in the respondent’s actions.
55Similarly, the Tribunal had noted in Mayta v. Canada Lands, 2009 HRTO 1613, at paragraphs 29 and 30 that it is not necessary to decide the merits of each event of misconduct relied upon by the employer and that instead it is sufficient to consider whether the employer’s purported reason, is the true reason for dismissal and not a pretext.
56The Tribunal’s jurisprudence has articulated the requirements for a finding of harassment, as follows:
a course of vexatious behaviour;
by an employer, employer’s agent or a fellow employee;
that is known or ought reasonably to be known to be unwelcome; and
is based on a protected ground under the Code
See Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd.Inq.).
57The term “vexatious” clearly imports a subjective element into the definition of harassment. The comment or conduct must be annoying, distressing or agitating to the person complaining. See Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd.Inq.). It has also been said that conduct is vexatious where the complainant finds the comments and conduct worrisome, discomfiting and demeaning. See Saunders v. Morsal Developments Ltd. (August 23, 1995), No. 718 (Ont. Bd.Inq.).
58In addition to considering whether the harasser knew his or her behaviour was unwelcome, human rights tribunals also consider the perspective of the person alleging harassment when assessing whether a harasser ought reasonably to have known that the comments or conduct at issue was unwelcome. For example, it has been held that whether the harasser ought to have known the behaviour was unwelcome depends on whether a reasonable person in the position of the person alleging harassment would find such conduct to be unwelcome and, if so, whether reasonable people in the respondent's position would know that to be the case. See Ghosh v. Domglas (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.).
59Protest or objection to the allegedly harassing conduct is not a precondition to a finding of harassment. See Howard v. deRuiter, 2004 HRTO 8. In Simpson v. Consumers’ Association of Canada 2001 CanLII 23994 (ON C.A.), (2001), 57 O.R. (3d) 351 (C.A.); leave to appeal refused [2002] S.C.C.A. No. 83, it was noted that because of the power imbalance in the supervisor/employee relationship and the perceived consequences of objecting to his supervisor's behaviour, an employee may go along with unwelcome conduct. In Bell v. Korczak (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont. Bd.Inq.), the continued willingness of the complainant to work was found not to constitute acceptance of the impugned conduct.
60The applicant has not meet the burden of proof to establish that she was harassed or discriminated against in employment on the basis of race or colour. Having reviewed the testimony and witness statements of each of the witnesses, I have concluded that the applicant’s recollection of her interaction with management is not credible. The applicant repeatedly denied that she engaged in any of the conduct experienced by her supervisors. In contrast, the respondent’s witnesses’ testimony, confirmed by detailed contemporaneous notes of most meetings or conversations with the applicant, describe a pattern of insubordinate behaviour that each person experienced in her interaction with the applicant. The notes and letters of discipline revealed that on each of the occasions where she was called into the office to discuss concerns about her work performance the applicant was not cooperative, interrupted and even made comments that reasonably could be interpreted as threatening toward Ms. Obermeyer. The applicant’s denial that she hung up the phone on Ms. Obermeyer also was not credible because she displayed inconsistency in her evidence first denying that she hung up the phone and then subsequently admitting that she said “goodbye”.
61Based on the evidence before me, it was clear that, throughout her employment as a Telephone Representative, there were repeated concerns about the applicant’s job performance beginning in 2002 and then again in 2005 and 2006. These were addressed by her supervisors, Kimberley Grace and Lynn Obermeyer, and by senior managers including Michelle Roberts and Sylvia Kremplj in consultation with the Human Resources department through progressive discipline, meetings, coaching and training.
62While the applicant found it offensive that the respondent encouraged her to seek professional help through a family counselling agency in the March 8, 2006 suspension letter, I agree with the respondent that this was an attempt, like they do in similar circumstances, to provide assistance to an employee who displays confrontational behaviour in the workplace.
63I also do not find that discussing concerns about how the applicant left messages for donors was a form of discrimination. In her position, the applicant was required to articulate specific information to donors and needed to do so in a clear and concise manner. Instead of taking the constructive criticism the applicant blamed miscommunication on the headset equipment she was using or on the ability of the donor to understand her. I find that the respondent brought donor complaints to the applicant’s attention and offered advice on how to improve not only in terms of her messages but also with respect to strategies for increasing the number of donor promises she received. There was no credible evidence to support that anyone at the Association spoke to the applicant in a demeaning manner.
64The respondent also encouraged the applicant to formally raise her complaints of discrimination in writing and did follow-up by investigating the complaints. On the basis of the testimony and documentation, I agree that the respondent took the applicant’s concerns seriously and acted upon them within a reasonable time-frame.
65The evidence does not support the applicant’s contention that she was told her claims were vexatious and that she would be subject to further discipline if she complained again. Rather what was established is that given the findings of the two human rights claims raised in one year against Ms. Grace and Ms. Obermeyer, the applicant was advised that if she raised a further complaint that was found to be unsubstantiated, she might be subject to further discipline for vexatious conduct. In the circumstances, this warning cannot be reasonably interpreted as being told that her claims of discrimination were vexatious, as alleged by the applicant.
66As well, Ms. Obermeyer, with senior management’s approval, thoroughly investigated and analyzed the applicant’s concerns about her low productivity levels in 2007, the results of which did not prove any differential treatment of the applicant or that the applicant’s record of receiving donor promises was lower than other Telephone Representatives.
67I also do not find that the applicant has shown that any of the conduct she attributed to Ms. Grace, Ms. Obermeyer and Ms. Kampelj was a form of racial discrimination or harassment. The evidence does not establish any connection between requiring the applicant to attend the office for meetings about her performance or otherwise or being contacted at home was a form of harassment or discrimination based on race.
68Nor did the evidence demonstrate conduct that could be reasonable viewed as vexatious toward the applicant. What the evidence showed was that the applicant exhibited work performance and attitude problems that resulted in management determining that it was necessary to meet with her in person. For example, Ms. Obermeyer explained that because of the confrontational and unproductive telephone conversation on February 24, 2006 she felt that it would be beneficial to meet with the applicant and had hoped that the March 1, 2006 meeting would be used as a coaching opportunity for the applicant. Ms. Kampelj’s phone calls related to speaking to the applicant about calling donors from her other place of work which was a serious matter to the respondent. Since the applicant worked from home, it also was not unreasonable for her to be contacted there by management. I find that the Association did not contact the applicant excessively at home and that there were legitimate non-discriminatory work-related reasons to contact the applicant and to require her to attend meetings at the office.
69Examining the applicant’s employment history, it is evident that despite the letters of warning and suspensions, the applicant was given a number of chances to improve and was supported by her managers in terms of offering advice, spending time with the applicant reviewing procedure and strategies to improve productivity. Even as late as August 2007, Ms. Obermeyer was willing to meet with the applicant to discuss concerns about the new job description for Telephone Representatives and attempted to arrange a meeting for August 30, 2007. The final telephone conversation between the applicant and Ms. Obermeyer on August 23, 2007 together with the multiple phone calls by the applicant later that day demonstrated behaviour that was unacceptable to the Association. I find that the decision to terminate the applicant’s employment was therefore made due to a history of insubordinate conduct and based entirely on non-discriminatory reasons.
48Accordingly, the Application is dismissed.
Dated at Toronto, this 18th day of January, 2011.
“Signed by”
Dale Hewat
Member