Ren v. Leon’s Furniture, 2011 HRTO 1676

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wei Huan (Joyce) Ren

Complainant

-and-

Leon’s Furniture Limited, Paul Bansal, Ravi Xavier,

Rick Studley, and Lynne Van Opynen

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: September 9, 2011

Citation: 2011 HRTO 1676

Indexed as: Ren v. Leon’s Furniture

Appearances

Wei Huan (Joyce) Ren, Complainant ) Cecil Norman, Representative, and

) Munyonzwe Hamalengwa, Counsel )

Leon’s Furniture Limited, Paul Bansal, ) Trevor Lawson and

Ravi Xavier, Rick Studley and ) Kate McNeill, Counsel

Lynn Van Opynen, Respondents )

1This Decision arises from a Complaint filed by Joyce Ren (“complainant”) against Leon’s Furniture Limited (“corporate respondent”) and four individual employees of the corporate respondent (“individual respondents”). The complainant alleges that her right to equal treatment with respect to employment without discrimination because of race, colour and sex, her right to be free from harassment in the workplace because of sex and her right to claim and enforce her rights without reprisal have been infringed by the respondents contrary to ss.5, 7(2) and 8 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Complaint was referred to the Tribunal by the Ontario Human Rights Commission (“Commission”) prior to the substantial amendments to the Code, which came into force on June 30, 2008.

OVERVIEW OF THE ALLEGATIONS AND RESPONSE

2The complainant self-identifies as a young woman of Asian decent. She commenced employment with the corporate respondent as a sales associate in the electronics department at the Mississauga store on November 18, 2002. The complainant was transferred in March 2004 to appliances. The context for the vast majority of her allegations is the approximately four-month period from the time of her transfer to her date of termination, July 6, 2004.

3The complainant alleges that during this period of time she was the subject of inappropriate sexual comments and conduct by two of her co-workers in appliances, Rick Studley and Paul Bansal. She alleges that she was propositioned by both Mr. Studley and Mr. Bansal; however, she has not asserted “sexual solicitation” in the legal sense as it is articulated in s.7(3) of the Code. Neither co-worker is alleged by the complainant to be a person in a position to confer, grant or deny a benefit or advancement as those words are used in s.7(3). The complainant also alleges that she was subject to a derogatory sexual comment by her supervisor, Lynne Van Opynen, at a restaurant during a party given for James Barnett when he was transferred in June 2004 to the corporate respondent’s Kitchener store.

4The complainant also alleges discrimination on the basis of race and colour, although she did not differentiate between the two grounds in her testimony or submissions. She testified that she was disciplined for issues related to personal hygiene by her supervisor, Mr. Barnett, and the General Manager, Ravi Xavier. She also alleges that she was told she could not bring her food into the workplace because it “smelled” and she was prohibited from speaking to her customers in Cantonese.

5The complainant alleges that shortly before she was terminated, she disclosed her allegations of sexual harassment to Ms. Van Opynen and then again during her termination meeting with the store manager, Mr. Xavier. The complainant alleges that she was terminated by Mr. Xavier in an effort to avoid dealing with her allegations.

6The complainant further alleges that she disclosed her allegations to the corporate respondent’s area manager, Dave McLeod. On the day following her termination, the complainant waited in the parking lot until Mr. McLeod arrived for work. The complainant alleges that she did not advise Mr. McLeod of her termination but asked him to look into the allegations of harassment and discrimination that she allegedly disclosed to Mr. Xavier. She testified that she could not remember whether or not Mr. McLeod ever contacted her following that discussion, although Mr. McLeod recalled telephoning the complainant to advise her that he thought the termination was well-supported.

7In August 2004, the complainant wrote to the president of the corporate respondent setting out her allegations, which all parties agree is the first time she had done so in writing. She received a response from counsel for the corporate respondent, following which, in September 2004, she filed her intake form with the Commission to initiate the complaint process.

8The corporate respondent is a retailer of furniture, electronics and appliances. The respondents denied the complainant’s allegations. The respondents denied that many of the incidents described by the complainant ever occurred, that certain experiences were taken out of context or exaggerated and denied that the complainant ever reported her allegations to anyone before her letter to the president in August 2004. The respondent alleged that the complainant’s employment was terminated after a long series of performance issues, which were brought to her attention but not resolved. The complainant received five written warnings, a suspension and a warning from Mr. McLeod that her employment was in jeopardy in less than two years of employment. The performance issues arose, in the corporate respondent’s opinion, from the complainant’s inability to respect the codes of conduct established for the sales force.

PROCEDURAL ISSUES

9The Commission was initially a party to this proceeding but withdrew prior to the commencement of the hearing.

10The complainant participated in the hearing in English but also had the assistance of a Cantonese interpreter, Nancy Wong, on whom she relied when necessary.

11An order excluding witnesses was made on the consent of the parties at the commencement of the hearing.

PARTIES AND WITNESSES

12The Tribunal heard testimony from the complainant as well as one witness in support of her case, a former co-worker named Eugene Martin Konopinski.

13The Tribunal also heard testimony from the individual respondents and a number of witnesses in the support of the case for the respondents. I have set out below the names and basic information associated with the witnesses who are mentioned in this Decision:

Respondents

1. Paul Bansal is a sales associate in appliances. He had no supervisory authority over the complainant. Mr. Bansal is accused of sexual harassment;

2. Rick Studley is a sales associate in appliances. He had no supervisory authority over the complainant. Mr. Studley is accused of sexual harassment;

3. Ravi Xavier was the General Manager at the Mississauga store and worked with the complainant from January 26, 2004, until her termination on July 6, 2004. He has since become the General Manager of the Brampton store. He reported to the Area Supervisor, Dave McLeod, and carried out the complainant’s termination. He is also accused of racial discrimination;

4. Lynne Van Opynen was the Assistant Manager and reported to Mr. Xavier at the time of the complainant’s termination. She is no longer with the corporate respondent. Ms. Van Opynen is accused of failing to act on the complainant’s disclosure that she was experiencing sexual harassment. She is also accused of making a derogatory sexual comment to the complainant during a work-related party.

Other Witnesses

5. James Barnett was a duty manager. He was responsible for some of the written warnings issued to the complainant in respect of her employment. He was promoted to General Manager of the Kitchener store in June 2004 before the complainant was terminated;

6. Dave McLeod was the Area Supervisor who was responsible for a number of stores including the Mississauga store. Mr. McLeod alleges that he issued the complainant a verbal warning that her employment was in jeopardy because of her inability to follow the rules set down for the sales force. The complainant also approached Mr. McLeod the day after her termination and she alleges that she asked him to investigate the disclosures she made to Mr. Xavier;

7. Harvey MacDonald is a sales associate who worked with the complainant, Mr. Bansal and Mr. Studley in appliances. He is still working with the corporate respondent in the Brampton store.

OVERVIEW OF FINDINGS AND LEGAL PRINCIPLES

Applicable Legal Principles

15The Code prohibits discrimination in relation to employment on all the prohibited grounds identified by the complainant. Discrimination is not defined in the Code; however, it has been consistently defined by the Tribunal and the courts in the statutory context to mean adverse treatment on the basis of a prohibited ground (Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143). In this case the question is whether the complainant’s allegations about the way that she was treated at work are credible and in any way connected to her race, colour or sex. The burden is on the complainant to prove these elements on a balance of probabilities. If the complainant meets this burden of proof and the respondent is unable to establish a defence or statutory exemption, the Tribunal will find a breach of the Code and order an appropriate remedy.

16With respect to the allegations of sexual harassment, section 7(2) of the Code provides that every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. Sexual harassment is defined in section 10(1) of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. In Janzen v. Platy Enterprises Ltd. (1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205 (S.C.C.) (“Janzen”), the Supreme Court commented that “…sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being”.

17Section 8 of the Code provides protection against reprisal or threat of reprisal when a person attempts to claim and enforce his or her rights under the Code. The burden is on the complainant to prove that her termination was an intentional act of reprisal against her for attempting to assert her right to be free of harassment and discrimination in the workplace. The burden is therefore on the complainant to prove that she disclosed her allegations to her employer and to point to other evidence from which the Tribunal can draw the inference that it is more likely than not that the termination was an intentional act of reprisal. It is not necessary for the complainant to have filed a complaint or application under the Code nor is there a requirement that the Tribunal find that the respondent did in fact violate the complainant’s right to be free from discrimination (Noble v. York University, 2010 HRTO 878).

18I have provided reasons below for my decision to dismiss the allegations related to sexual harassment, racial discrimination, and reprisal. However, since I have determined that the complainant has not met the legal threshold of proving that she reported her allegations of harassment and discrimination prior to her termination, I have not found it necessary to consider in any detail the sufficiency of the corporate respondent’s investigation, which ensued following her letter to the president in August, 2004.

Overview of Credibility Issues

19Throughout the course of the testimony and in reviewing the documentary evidence, I found that I could not rely on much of the complainant’s evidence. In considering issues of credibility I was guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

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 carries 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 a 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. [emphasis added]

20In Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, the Tribunal stated, at paragraph 54:

Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.

21My overall assessment of the complainant during her testimony is that she was evasive and lacking in candour, prone to exaggeration, inconsistent and openly hostile toward a number of witnesses. The complainant had to be cautioned by the Tribunal a number of times to give a direct answer to the questions she was being asked. At one point, I stopped the proceeding and directed her representative to speak to her about her evasive behaviour in an effort to get her testimony completed. She also had to be directed by the Tribunal to remain silent during the testimony of others because she would attempt to confront them by shouting out that they were “lying” in an angry tone. Ms. Wong, who provided translation, attempted as best she could throughout the hearing to calm the complainant as did her representative, Mr. Norman, who was present throughout the hearing.

22In reviewing the documentary evidence and the testimony of witnesses who I found to be credible, I was unable to determine that the complainant’s oral testimony met the test in Faryna and Visic. For the most part I found the complainant’s interpretation of her experiences at work unreasonable. Since the determination of the allegations contained in the Complaint rest primarily on the credibility of the parties, the evidence presented by the parties and my reasons for these conclusions are set out in detail in this Decision. Of particular note, since credibility is such an integral component of determining this Complaint, I have set out below some evidence, which in itself would not normally be relevant to a finding of discrimination, but is relevant in this case to determinations of credibility.

23At the same time I emphasize that my findings should not be taken to be conclusions that the applicant was maliciously pursuing this complaint, although I understand why the individually named respondents conveyed this feeling when they testified about the impact of the complaint on themselves and their families. While there were some points in her evidence where I find that her testimony was not credible, the complainant appeared many times to be sincerely affected to the point of extreme humiliation in describing experiences that she perceived to be harassment and discrimination in the workplace, and particularly the circumstances associated with her termination. There was also some independent evidence from a co-worker named Eugene Konopinski, which did give rise to a concern on my part about Mr. Studley’s conduct toward the complainant. In considering the totality of the evidence, however, I have concluded that the complainant had a tendency to re-cast her experiences so that they took on a much more sinister expression than is actually supported by the evidence.

24The complainant often appeared distressed, cried at times, would suddenly turn angry and was generally having a difficult time coping with the hearing process despite the presence of her representative who was with her throughout the hearing and counsel who was present for parts of the hearing. I did not assess the complainant’s credibility on the basis of the complex emotional responses she exhibited during the hearing. What I was most concerned about in respect of the complainant’s credibility for the purpose of determining whether she established a violation of the Code was her tendency toward exaggeration, her evasiveness, the lack of consistency in her own testimony, her persistent attempts to justify her own conduct and blame others, as well as the lack of congruity between her testimony and the available documentary evidence, the specific examples of which I discuss in greater detail in this Decision.

25There were no concerns about translation difficulties or timing issues. In fact, the complainant was given all the time she needed for translation to ensure that she understood the questions she was being asked and how to address them properly. The complainant testified that she had no difficulty working in English while she was employed by the corporate respondent, but it was perfectly understandable that in the stress and pressure of a hearing the complainant would rely on translation when necessary and she was given every possible opportunity to do so.

26At points in her testimony, the complainant raised the possibility that cultural factors may have caused her co-workers to misinterpret her behaviour. She described, for example, the fact that she speaks quickly, loudly and often in an excited tone as an example of something she would attribute to her cultural background. I have given the complainant’s testimony on this subject careful consideration. However, there is no reasonable basis for attributing the behaviour I observed and the behaviour that is alleged to have caused her termination to differences in cultural backgrounds.

Summary of Findings

27With respect to the complainant’s allegation that her termination was carried out as a reprisal so that the respondents could avoid dealing with her sexual harassment allegations, I find, and discuss further in my Decision, that the termination was well-supported by the documentary evidence produced by the corporate respondent and through the testimony of Mr. Xavier, Mr. Barnett, Ms. Van Opynen and Mr. McLeod. The complainant had been issued five formal, written warnings following on numerous conversations and quarterly reports for a wide range of performance issues and she had received one suspension. The evidence supports the explanation of the respondents that the complainant had been told by the Area Supervisor, Mr. McLeod, that one more incident of misconduct could lead to her termination. In the few days preceding the termination, the complainant was involved in more incidents of the kind that she had been previously disciplined for, which Ms. Van Opynen reported to Mr. Xavier and which caused him to determine that it was the appropriate time to terminate the applicant’s employment with the corporate respondent.

28I have addressed the allegations of harassment and discrimination based on race and colour in more detail later in this Decision. There was very little evidence from the complainant and the other witnesses in relation to these events. All parties agreed that there were a few issues with the complainant’s hygiene, which were addressed with her by Mr. Barnett and Mr. Xavier and remedied by the complainant. There were two other allegations, which involved the smell of the complainant’s food and an alleged prohibition against speaking languages other than English with customers. I have found that none of these allegations support a finding of discrimination on the basis of race or colour.

29With respect to the complainant’s allegations of sexual harassment, there is independent evidence to support some of her allegations that sexually inappropriate conduct may have occurred in the workplace, particularly from the testimony of Mr. Konopinski. Despite this, I cannot find a basis for a breach of the Code in the absence of cogent, reliable evidence from the complainant. The complainant was not able to establish on the balance of probabilities that certain conduct occurred, nor that it was sufficiently serious or repetitive enough to be described as harassment. Because of credibility issues associated with the complainant’s evidence, I could not determine what affect the complainant’s own conduct had on her interactions with Mr. Studley and Mr. Bansal. In short, the complainant failed to establish on the basis of her evidence, the testimony of Mr. Konopinski and the cross-examination of the respondents’ witnesses that the she was subjected to a course of vexatious comment or conduct that was known or ought reasonably to have been known to be unwelcome.

30I note here that with respect to the party which was held for James Barnett at a local restaurant in June 2004, there are allegations made about the conduct of Mr. Studley, Ms. Van Opynen and the complainant. The evidence given on this subject was not particularly helpful to me in determining the issues engaged by this case. Mr. Konopinski testified that he observed Mr. Studley using a balloon in a sexual manner behind the complainant. He also supported the complainant’s evidence that Ms. Van Opynen made the remark that the complainant should give Mr. Barnett a “blow job”. At the same time there were cross-allegations made about the complainant’s conduct at the party, which was described as overtly sexual talk and gestures with balloons. More than one witness testified to observing the complainant conduct herself in this manner. Mr. Barnett, for example, testified that the complainant talked openly with Ms. Van Opynen at the party about her use of “sex toys”. That observation was also recorded in an email he sent to Mr. McLeod in February 2005. Mr. Studley also testified to overhearing that conversation and indicated that Ms. Van Opynen was laughing while the complainant was describing her “sex toys”. Ms. Van Opynen also confirmed that statements made by the complainant. There were no complaints or warnings given to associates arising from this party. The events that took place at the party were never alleged as part of the original Complaint to the Commission nor were they mentioned in the complainant’s letter to the president of the corporate respondent in August 2004. Although this would not strictly prohibit her from raising them before the Tribunal, there is simply insufficient evidence to establish that this work event supports the complainant’s contention that she was subjected to sexual harassment in her workplace.

31These findings, it should be emphasized, are not to suggest that some of the experiences described by the complainant never happened or that she was not genuinely affected by them. I have also taken into consideration her testimony that she was trying to get along and to do her best in a highly competitive sales environment. However, my role is determine whether or not the complainant has met the legal burden to prove a breach of the Code. The complainant painted a picture of a toxic workplace in which she was subjected to a daily barrage of hurtful, humiliating experiences until she was finally terminated for speaking up about them. Mr. Konopinski did not work in appliances and what he observed, he observed from a distance and largely in passing. Although I agree that the description of what he witnessed may have been cause for concern, he did not have an understanding of the full context of the complainant’s experience at work and the complainant’s own evidence on this point was insufficient to support a finding in her favour.

32I now turn to the evidence and more fulsome explanation of my findings. I deal first with the testimony of the complainant and next with the evidence associated with her termination and her allegations of harassment and discrimination.

EVIDENCE AND ANALYSIS

Testimony of the Complainant

33The complainant testified with the assistance of translation. Her testimony was very disjointed and she was asked frequently to repeat or explain her answers. Only a few of those requests were related to moments of confusion which appeared to arise naturally from the translation process. As a result, I have chosen to simply set out the parts of her testimony that actually bear on the legal issues in largely the same chronology and using the complainant’s own words where possible.

34The complainant’s direct examination was relatively short. She was a new immigrant in 2001 and was expecting to have a bright future when she came to Canada. She came to Canada with seven years’ experience as a technical sales representative in China. The job with the corporate respondent was important to her and she believed that she worked hard. She described her working relationship with all of her co-workers while she was in the electronics department as “harmonious”.

35Prior to her move into appliances the complainant had a car accident and found that she could not lift heavy objects or stand for long periods. She understood that she was being transferred to appliances because of this and because she was told by a “manager” that “because the appliances were for home use generally it was better to have a woman in that department as well.”

36The complainant testified that once she was transferred into appliances she did her best to learn from the experience of her co-workers. During those hours when the store was less busy, “they” always talked about topics related to sex. She found this inappropriate and most of the time would just step aside. The complainant worked on commission, so even when topics were unbearable she testified that she had to stay because she had to make a living.

37The complainant testified that Mr. Studley and Mr. Bansal tried to provoke her into talking about her private life by discussing their own. The complainant attempted to avoid these discussions. She testified that “because this is a new workplace for me, the first two months I said nothing and did not give any of my opinion.”

38The complainant described an incident where Mr. Bansal brought pictures into work after a trip from Cuba. He showed the complainant pictures of women he allegedly called his girlfriends. The complainant then testified that Mr. Studley also talked about sex and that he had invited her to go to his trailer.

39The complainant testified that on the day of her termination she was replacing someone on the sales floor and was very busy. At approximately 9:30 in the evening, as the store was closing, Mr. Xavier asked her to go to his office. The complainant testified that Mr. Xavier closed the door behind her and she “felt scared”. She asked Mr. Xavier “do you realize these two men are sexually harassing me? They are lying about me taking customers from them, they took customers from me.” She asked Mr. Xavier to investigate but instead he opened a desk drawer and took out a file of letters and threw them on his table and said “these are warning letters and now you are terminated”.

40The complainant testified that she cried during the termination meeting and described herself as “very scared”. She testified that Mr. Xavier refused to let her explain. He told her to “pack all your belongings and leave this company.” She testified that she was “very helpless and shaken up and almost could not stand on my own feet”. She told Mr. Xavier that she wanted to speak with Dave McLeod because she had been told by other co-workers that if she had a problem she could discuss it with him. She said she would try her best to appeal the decision.

41I note here that despite this knowledge the complainant acknowledged that she did not disclose her allegations of harassment to Mr. McLeod when he met with her days before her termination to tell her that her job was in jeopardy.

42The complainant then testified that she felt helpless but was aware of her employer’s policy called AVAC (Associates Voicing A Concern) which describes the process for raising concerns with management. She testified that she felt her only remaining choice was to set out her concerns in a letter to the company president, which she did in August 2004.

43The complainant testified about the incidents involving her food, hygiene and language issues. She testified that Mr. Xavier was in his office when he told her to brush her teeth, chew gum and eat her Chinese food at home. He also made a comment to her about not speaking Chinese in front of the customers. The complainant explained that the customers had asked her to speak Chinese. She was on commission and felt it was good service to the customer to speak their language. The complainant testified that she knew it was unfair but did not saying anything about it because she was “pretty new” and so was Mr. Xavier.

44The complainant’s testimony then returned to the allegations of sexual harassment. She testified that “he touched my thighs”. She elaborated that sometimes “we sit at the (sales) post and they talk about sex topics and he would suddenly touch my thigh, on the top going toward the inside”. She testified that this happened at least four or five times. Her reaction was to stand up and walk away. At first she testified that she was not aware if others saw it happening and that “they would do this” when other people were not around.

45The complainant also testified about comments that were made to her about her “appealing legs and buttocks”. She testified that “…he always said so…he just asked me about my legs and buttocks…he would talk to me privately about these two things…because I had been wearing long pants or tight fitted skirt he would say he could imagine that my buttocks and legs were very nice”. Again she indicated that sometimes “we” were alone and then “can’t recall if others were there”, and then “maybe sometimes Paul would be there but not everybody”. The complainant testified that this happened four or five times. In addition, the complainant testified that once or twice “they” said that she was a “very beautiful, attractive, sexual woman”.

46The complainant testified that she was invited by Mr. Studley to his trailer. Her impression of the invitation was that is was for the purpose of being alone with her. The complainant testified that she was invited several times and refused and that Mr. Studley wrote down the trailer number and cell phone and asked her to prepare a sleeping bag.

47She also testified that Mr. Studley spoke to her about the size of men’s penises, another subject which she was not comfortable with. She testified that Mr. Studley said he was a “real man” and “see my fingers and you can see how big I am”.

48The complainant then testified to the specific allegation against Mr. Bansal that he showed her pornographic pictures. She described him as very excited one day when he brought her a newspaper clipping with a front-page headline about a female interviewer who was nude while she was conducting an interview. The complainant testified that Mr. Bansal cut out the picture, showed it to her and other people and clipped it up in one of the staff rooms. She also testified that the pictures of his vacation from Cuba depicting two clothed women were also pornographic.

49Although the complainant denied speaking to either Mr. Bansal or Mr. Studley about her personal life, she testified that Mr. Bansal would ask her about oral sex whenever she discussed her boyfriend with him. She testified that Mr. Bansal shared details about his life including the fact that he had been married several times. She also testified that he asked her if she would like him to massage her breasts. The complainant testified that “I assumed he wanted to have sex with me”. She indicated that she would not reply to his questions but would walk away.

50She testified that Mr. Bansal also touched her hands and thighs on more than five occasions. He would touch her hands and thighs under the table at the sales post and “anytime he had a chance he would touch my hands”. The complainant testified that “at first I thought it was friendly – eventually I figured out it was not so”. The complainant testified that she responded by trying not to sit next to Mr. Bansal.

51At this point in her testimony, the complainant spoke about calling Mr. Bansal at home after her termination. She explained that she simply wanted to tell him that she was no longer working there because he was not at work on the day of her termination. She denied asking Mr. Bansal for anything during the call. This part of her testimony seemed somewhat incongruent with her allegations of harassment against him and she did not attempt to explain why she called him despite those experiences.

52The complainant then testified about her conversation with Lynne Van Opynen on July 4, 2004 (Ms. Van Opynen recalled this meeting taking place on July 3), just prior to being terminated. She testified that because Ms. Van Opynen was a woman manager she trusted her when compared with other co-workers she felt were always taking advantage of her. She also indicated that Ms. Van Opynen had helped her to close sales. The complainant testified that she wanted to speak with Ms. Van Opynen because “these two male co-workers had made up stories about my misconduct behind my back to Lynne”. She wanted to address a recent event where Mr. Studley accused her of taking his client when in fact the person was a “returning client” who had come back into the store looking for her. As the complainant understood it, Mr. Studley had reported her when in fact he had stolen her client. The complainant testified that Ms. Van Opynen came to her and asked her to “back off” – “so I complained that to Lynne that he was harassing me – Lynne said you follow the rules or you will be let go”.

53The parties agree that on July 4, 2004, the complainant came in to work before the store opened for the regular Sunday morning sales meeting. Before the meeting she was sitting at the sales post. She testified that Mr. Bansal came up to her and told her to be careful, that “Rick” had reported her. The complainant responded to Mr. Bansal that “it’s unfair, it’s reprisal” and she began crying at the sales post. Ms. Van Opynen observed the complainant crying and brought her into a room and “talked to me seriously – she asked what happened – I said I want to report to you that they are harassing me, they are making up stories and it is not true – I pointed to the wall where the policy was (AVAC) – I said I want to report this – it is serious – I want you to help me…”. The complainant testified that Ms. Van Opynen told her to stop crying and that if she wanted to make money she needed to work and stop overreacting.

54The complainant then repeated her testimony about her conversation with Ms. Van Opynen: “I told her that they were sexually harassing me – I told Lynne the manager that it is so unfair – I was crying at the time – I couldn’t say that much – I tried to point out one by one…” She repeated that Ms. Van Opynen said “do you want to work? I will send you home if you don’t stop crying…” The complainant testified that she was under the impression that Ms. Van Opynen would set another time to talk further although this appears to be completely incongruent with the description she had just given about Ms. Van Opynen’s response. The complainant testified that “she did not come and speak to me after that.” She concluded this portion of her testimony by saying that she was afraid to be sent home because she had already been sent home once and received a warning letter. She also reinforced that “I clearly said that I want to complain under the policy.”

55The complaint testified that she believed her termination was an act of reprisal for disclosing her allegations of sexual harassment. She repeated that she complained to Mr. Xavier during her termination meeting and asked him to investigate her allegations. She testified that she assumed that Mr. Xavier and Ms. Van Opynen had communicated with one another in advance of the meeting and that Ms. Van Opynen had informed him of her allegations.

56The complainant was asked to speak about the impact of her experiences. She testified that it “affected my whole work life” and that she has to be very cautious now and not treat anyone at work as if they are a friend. She said she felt taken advantage of as a “young, Chinese employee” and that her dignity was “raped by them”. In short, her experience “changed her whole life” and she was hoping to regain her confidence and rebuild her faith in the workplace.

57The complainant testified that she felt she was not properly trained by the corporate respondent to understand experiences of sexual harassment and that since her termination, she has worked for other companies that have raised the issue through videos and training sessions with employees and that by comparison, her training with the corporate respondent had been inadequate.

58The difficulty in assessing the complainant’s testimony at this stage in the evidence is that it lacks specificity and detail and was at times internally inconsistent. She did not provide any details about what she disclosed to Ms. Van Opynen or Mr. Xavier apart from the blanket statement that “they” were harassing her. She admitted speaking to Mr. Bansal about her boyfriend, although she did not say about what, while at the same time testifying that she avoided any discussion of her personal life. She used the word “they” frequently and did not differentiate between Mr. Studley and Mr. Bansal. I also found it difficult to believe that after five years, without any notes made contemporaneously with the events, that the complainant could actually remember what people said verbatim. It is more likely that these statements are impressions she was conveying. However, it was impossible to determine whether the impressions about what people actually said were developed at the time of the events or whether they have developed over time since the events.

59In my view, the complainant made an important point when she asserted that she was trying to make a living and was not counting the incidents she experienced. However, there was no explanation for what caused her to settle on numbers such as four to five incidents or more than five incidents. In addition, the complainant’s call to Paul Bansal just to inform him that she had been terminated was incongruent with the testimony she had given about the predatory nature of Mr. Bansal’s conduct toward her and her feeling that Mr. Bansal and Mr. Studley had lied about her and caused her to get fired.

60The complainant also made it appear as if she deliberately chose to disclose her sexual harassment allegations to Ms. Van Opynen when in fact, on the complainant’s own evidence, the disclosure followed spontaneously on a discussion about a dispute she had with Mr. Studley which was not resolved in her favour. The complainant testified that she chose Ms. Van Opynen because she was a woman and had been supportive of her in the past, but she failed to explain how her experience at the party for James Barnett, where Ms. Van Opynen had allegedly humiliated and upset her to the point that she left the party early, had factored in to her decision to confide in Ms. Van Opynen.

61These issues were not fatal to her credibility, but they did raise significant questions for me about the extent to which I could rely on an accurate re-telling of the complainant’s experiences in the workplace.

62The complainant was cross-examined by counsel for the respondents and the complainant relied on translation when necessary. Again, I have chosen to set out the parts of the cross-examination that bear on the legal issues and the findings associated with the complainant’s credibility in largely the same chronology as the testimony unfolded.

63The complainant testified that Mr. Barnett was one of her supervisors but she denied ever arguing with him. Mr. Barnett testified that she argued frequently with him and other coworkers, that she was easily angered and cried whenever she did not get her way.

64The complainant acknowledged that she received a warning from him about her appearance and explained that she was taking medication which was causing dandruff. She testified that she reported this to Mr. Barnett but that he was still insistent that she “do something about my appearance”. She also admitted to signing rather than contesting the warning letter.

65The complainant and Mr. Barnett worked together until he was transferred to the Kitchener store in June 2004. The complainant was asked whether she ever asked Mr. Barnett for a reference. She said that she could not recall, but she did remember visiting the Kitchener store after her termination “just to say hi to the co-workers”. She denied travelling to Kitchener to speak specifically with Mr. Barnett and testified that she was in Kitchener for another purpose and she decided to drop in to see the co-workers who she claimed had been in training with her. When she was asked who she knew at the Kitchener store, she answered “a Caucasian saleswoman – I can’t recall her name.” She testified that she remembered speaking with both her and Mr. Barnett but did not recall asking for a reference.

66I note here that Mr. Barnett testified to an entirely different version of events. His version of this story is also set out in an email he sent to Dave McLeod in February 2005. He testified that he was aware the complainant had been terminated. She had called him once or twice asking to come visit him at the Kitchener store. He did not want to meet with her because he was not close to her. He testified that she turned up unexpectedly at the Kitchener store sometime in August or September 2004, with a coffee for him. He remembered the visit because the complainant tripped on the carpet and spilled the coffee. He testified that the complainant asked him if he would write a letter of reference for her. He thought this may have taken place in August or September 2004. He told her that he did not feel comfortable giving her a reference because he was not her boss at the time that she was terminated. Mr. Barnett testified that the complainant said nothing to him about coming to see another employee at the store that day.

67This testimony did have an impact on my view of the complainant’s credibility. Mr. Barnett’s testimony was consistent with the notes he made shortly after the complainant’s visit to the store. The complainant could not recall the name of the person she had gone out of her way to visit at the Kitchener store nor did she recall why she was in Kitchener. I would not have found anything problematic about the complainant seeking a reference from Mr. Barnett and it was not obvious to me why she would attempt to cover up such an innocuous event. However, I concluded after hearing the testimony of both the complainant and Mr. Barnett in relation to this event that the complainant was being less than candid in her testimony.

68On cross-examination, the complainant confirmed that she understood the rules in the employee manual that associates must follow in approaching customers and the importance of adhering to those rules at all times. She confirmed that she understood the importance of never arguing about the application of the rules in front of a customer and that she could be disciplined if she engaged in such conduct.

69The complainant also acknowledged that she had read the sections of the employee manual entitled “Workplace Harassment” and “Associates Voicing Concern” prior to her termination. The complainant testified that she could not remember how long before her termination she read the AVAC policy, but she “followed it” in the sense that she had spoken with two managers and then sent her letter to the company president.

70The complainant was then asked about the timeframe of her disclosure to Ms. Van Opynen and specifically whether it came after the dispute with Mr. Studley. Despite the fact that she testified in chief that she disclosed her allegations of harassment during the same conversation in which she was attempting to get Ms. Van Opynen to see her side of the dispute with Mr. Studley over the returning customer, she responded “if you are asking about the time frame, I cannot remember….”

71The complainant acknowledged that while she was in electronics she had some limited direct contact with both Mr. Studley and Mr. Bansal, who were in appliances, and that their conversations were all work-related. The three employees would also be present together every week for Sunday sales meetings. There are no allegations against either Mr. Studley or Mr. Bansal arising out of these interactions.

72The complainant was challenged on her assertion that she worked harmoniously with her co-workers in electronics. Counsel for the respondents suggested that there were arguments over the issue of splitting sales, to which the complainant responded “yes”. And then she testified that there was only one argument over a commission and that it lead to a disciplinary letter – otherwise she worked harmoniously with her co-workers in electronics.

73The complainant denied that she was loud and easily angered when issues arose with co-workers on the sales floor. However, she admitted that on multiple occasions she had to be told to calm down and she explained that it was her habit to speak louder because of her Chinese heritage.

74She also admitted that she often cried on the sales floor if a dispute was not resolved in her favour. This she put down to her “natural human nature”.

75Mr. Barnett testified that the complainant’s relationships with her co-workers in electronics were not harmonious. He issued three written warnings to the complainant, which are discussed in more detail below. He testified that the complainant’s move to appliances was initiated by him in order to give the complainant the opportunity to improve her professionalism and skills by working with more experienced co-workers in appliances.

76The complainant was asked on cross-examination to address three written warnings she received related to her performance in electronics. The first warning was dated May 3, 2003, and notes that the complainant was “neglecting customers” and “dealing with too many customers at once”. There is also a notation that the complainant told a customer she was “new” as an excuse for a mistake that was made despite having been on the job for six months. Although she admitted signing the warning rather than challenging it, she maintained in her testimony that the warning was issued unfairly. She felt that her manager had refused to listen to her side of the story and that it was another co-worker who was to blame for the conflict with the customer. She did, however, testify that she had made an excuse because she wanted to calm the customer down and “save the sale for Leon’s”. The complainant could not recall her exact words but she concluded with “it is not a bad excuse – I was doing it to save the sale.” The warning notes that any future issues will result in suspension or review of employment.

77I had significant concerns about this statement by the complainant that she considered it permissible to make an excuse to a customer in order to save a sale. This is also an example of the complainant’s tendency throughout her testimony to dispute disciplinary incidents which she accepted at the time. She also demonstrated here and at other points in her testimony a propensity to blame others for the circumstances which brought about the warning in the first place.

78The next written warning was dated May 22, 2003. The warning is for failing for follow the instruction given to her by the store manager. The complainant testified that she could not really remember what the discipline was related to. Although she testified that she could “barely remember” she still cast blame on the customer she was dealing with for not telling her that he had made a TV and DVD purchase the day before with a co-worker named Dean.

79The complainant was cross-examined in relation to a document she filed entitled “Quarterly Review Comments by Managers”. There are comments for each quarter for 2003, all authored by Mr. Barnett, praising her performance and pointing out areas for improvement. The fourth quarter comments document concerns about the complainant’s cancellation rate, the fact that she is arriving late for mandatory sales meetings and not always on time for the start of her shifts. There are also concerns raised about her manner of dress and hair, dandruff on her jacket and complaints about her breath. Mr. Barnett also notes that the complainant is very disorganized at times and easily angered and the complainant is advised that a warning will be issued in relation to these issues.

80The warning that followed the Quarterly Review was dated February 2, 2004. The letter contains the following text:

Joyce has been late for Sunday meetings, her regular shifts, her delivered average for the quarter (Oct 1^st to Dec 31^st) was $34,475 below the average, her dress code is at times bad (dandruff on jacket), hygiene bad (breath) she appears angered at times, 46% cancellations.

81Again, the warning was signed by the complainant. She testified that she could recall only one time when she was late for a Sunday meeting and she testified that she had called in to advise her employer in advance. Again, this testimony was consistent with the complainant’s tendency to minimize her own behaviour. She could not remember being late for regularly scheduled shifts; however, after some questioning, she finally did acknowledge that if she signed the warning letter she must have been admitting that her employer was correct.

82The complainant testified that she had dandruff on her jacket as a result of medication she was taking. She stated in cross-examination that she could not remember if she explained her medical condition to Mr. Barnett when he issued the warning despite testifying in direct examination that she had informed Mr. Barnett. Mr. Barnett testified that the complaint never advised him of any medical condition, which may have caused the personal hygiene issues he noted in the warning.

83The next warning is dated March 18, 2004, the fourth warning received by the complainant in 10 months of employment. The text of the letter reads as follows:

Explain Details: Joyce did not explain properly to her customer that their delivery would not be coming after 3:30, customer was expecting after 3:30

Improvement Required: Joyce must not make customer have hope that their delivery would come at the time they expect

Disciplinary Action: written warning, sent home for remainder of the day

84Again the complainant testified that while she signed the warning letter and did not challenge it at the time, it was the customer who had misunderstood. This was the last warning issued to the complainant while she was working in electronics.

85The next warning was dated April 18, 2004, when the complainant was working in appliances. The text reads as follows:

Explain Details: Joyce showed up late again for the Sunday meeting. We have discussed her being late on at least 2 separate occasions. Joyce had been warned the next time she was late she will be sent home

Improvement Required: Joyce must come to work on time

Disciplinary Action to be taken: written warning, 1 day suspension, next time longer suspension or possible review of employment

86The complainant admitted that she had been late and did not challenge the warning.

87The complainant was then questioned on what the respondents regarded as the three events that preceded her termination, the first of which involved a dispute with Rick Studley on July 3, 2004, about a returning customer. The complainant could not recall Ms. Van Opynen calling her into an office that day and telling her that she had broken the rules. She also could not recall that Ms. Van Opynen told her that she would be reporting her misconduct to Mr. Xavier.

88The complainant testified that she did recall a conversation with Ms. Van Opynen the next day during which she was upset and crying and claiming that the company was being unfair to her and that she was being punished. The complainant added: “I also did tell her about the harassment and reprisal…”

89She recounted, as she had in her examination-in-chief, that Ms. Van Opynen asked to speak with her because she crying and upset at the sales post. She was asked why she was crying and she responded, “because I felt it was very unfair,” and she admitted that part of the reason was that she was upset that Mr. Studley had reported her the day before.

90And then the complainant testified that “all of a sudden all of the thoughts came back to me in that moment maybe this is about me refusing his sexual advances. That this was a reprisal…” She expressed her concern that “Rick and Lynn always were whispering with each other…they were whispering behind my back…and they just made decisions about me and I felt discriminated against.” When she was asked when she observed the two whispering she responded that she could not recall a specific time but that they were always talking to each other. Eventually the complainant was forced to admit that she had never overheard their conversations and did not know what they were talking about.

91The complainant was asked in cross-examination about the second of three incidents which preceded her termination. At some point in early July 2004, the complainant is alleged to have told a customer that a refrigerator was in stock and that it would be delivered on a specific date. When it was not delivered on time, she is alleged to have gone to the customer’s house and told the customer that she was a new immigrant and that if they reported her she would be fired.

92The complainant denied this allegation. The complainant explained that she attempted to contact the customer by telephone to explain the stock issue but the phone was not in order. She went to the customer’s house, which was brand new. The customer was not at home and she left a note informing the customer that she could resolve the problem the next day when she was back to work. To be fair to the complainant, there was never any testimony in relation to this issue which would have established that the complainant made the comment about her immigration status.

93The last incident also involved allegations that the complainant told a customer that the Mississauga store would arrange for stock when Ms. Van Opynen had just told her that there was no stock available. The complainant testified that she was warned in general not to promise stock where it could not be delivered and considered this a “kindly reminder or general instruction”. She did not recall Ms. Van Opynen telling her that she intended to speak with Mr. Xavier about the incident. Again, the complainant explained this incident by testifying that the customer had lied to Ms. Van Opynen and told her that the complainant had promised stock when she had not.

94The complainant was questioned about a meeting which took place between herself, Ms. Van Opynen and the Area Supervisor, Mr. McLeod, prior to the three incidents that preceded her termination. The complainant testified that she could not recall the meeting. She said “I only heard from Lynne that I needed to be careful”.

95The complainant was then asked questions in relation to her termination meeting with Mr. Xavier on July 6, 2004. She acknowledged on cross-examination that during the meeting Mr. Xavier showed her the warning letters and told her that he had received an email from Mr. McLeod saying that if there was another incident she would be fired. The complainant testified that she was crying and pleading with Mr. Xavier to look into the harassment she was experiencing.

96The complainant acknowledged that the next day, July 7, 2004, she waited in the parking lot at the Mississauga store for Mr. McLeod to arrive. She testified that “I was outside my vehicle in the early morning…before the store was open.” When she was asked if she told Mr. McLeod that she had been terminated she responded, “I asked him if he would ask Ravi to investigate for me the incidents I reported to him. I did not bring up the termination. And he replied that he would speak to Ravi. Then I left.” The complainant testified that this was the last time she spoke with Mr. McLeod.

97The complainant was asked on cross-examination to elaborate on her reasons for choosing to call Mr. Bansal after her termination. She responded that she had also called other co-workers. If she had a number for someone, she called them and “if they have time to talk to me, then I appreciate that…I was helpless after my termination…my main purpose was just to tell them I was terminated…I didn’t ask for help to find another job…I was waiting for E.I.…just called to say hello and to tell them that I don’t work there anymore…” And then she added that a couple of days before her termination Mr. Bansal had touched her hand and told her that something might happen. The complainant testified that she wanted to call him and tell him that he was right and that she had been terminated. The complainant could not recall any further conversations with Mr. Bansal. She denied that she asked him to help her get a job somewhere else and that she contacted him a second time to tell him she was “charging Rick with sexual harassment.”

98Mr. Bansal recalled the first telephone call but also testified that he had a clear recollection of the complainant calling him shortly after her termination to ask him to speak to her lawyer about her allegations of sexual harassment against Mr. Studley.

99The complainant was questioned about the contents of the intake form she prepared when she filed her Complaint with the Commission, which was signed and dated September 25, 2004. Mr. Bansal is not named as a respondent on the form, nor are there any specific allegations made against him. Instead, Mr. Bansal is listed as a potential witness. The complainant testified that she put his name down as a person who could testify about an incident that involved Mr. Xavier, but not one in relation to the allegations of sexual harassment. The complainant testified that the intake form was in her view a “draft” and that she had simply missed including Mr. Bansal. She went on to say that she had not alleged anything against Mr. Bansal because she was quite confused and the form provided limited space.

100I found these explanations difficult to believe in the face of her testimony that she had reported both Mr. Studley and Mr. Bansal to Ms. Van Opynen and Mr. Xavier, and set out detailed allegations against Mr. Bansal in the August 16, 2004 letter to the company president just over one month earlier.

101The rest of the cross-examination of the complainant raised questions about her own conduct in the workplace. In examining this particular aspect of the evidence set out below, I have paid careful attention to ensuring that I have not assessed her credibility on the basis of the stereotype that women invite sexual behaviour toward them in the workplace by their own conduct. My credibility findings are related to the inconsistencies in her testimony and her evasiveness in relation to these issues.

102The complainant was asked whether she ever “voluntarily” sat on Mr. Studley’s knee or Mr. Bansal’s knee and testified that she could not recall. This response was problematic in the face of the complainant’s allegations that she was forced to sit in Mr. Studley’s knee and the fact that she never alleged having ever sat on Mr. Bansal’s knee. The complainant did, however, seek to correct this testimony in re-examination. She testified that in fact she had never sat on Mr. Studley’s lap voluntarily. I am prepared to accept that some confusion arose here as a result of translation.

103The complainant was asked if she recalled saying to Mr. Studley that if she were to have his baby, the baby would have blue eyes. The complainant denied this allegation and explained that she felt that she had been very naïve when she was asked about her personal life and answered that her ideal partner would give her a “mixed baby”. The complainant testified that it was Mr. Studley who said “how about a blue-eyed baby – that would be very beautiful”. She did not recall complimenting Mr. Studley on the colour of his eyes. Again, this evidence is somewhat incongruent with her earlier testimony that she did not engage in personal discussions with Mr. Studley and Mr. Bansal.

104The complainant was asked in cross-examination about holiday pictures she brought to work and which were allegedly shown to Mr. Studley, Mr. Bansal, Mr. McDonald and Mr. Barnett among others. The complainant testified that she had picked the pictures up from the store and had not reviewed them. When she arrived at work carrying the bag of photos “they” asked to see them. After “they” saw them she put the pictures back in her bag and prepared for work. The complainant testified that a few other employees came by and asked to see her pictures but she did not understand why. The complainant also testified that Mr. Barnett paged her to the office in order to look at the pictures.

105I found the complainant’s answers to these questions about the pictures to be very problematic. She clearly understood that Counsel for the respondents was about to point out that some of the pictures depicted her in a bikini and certain poses which may have made them inappropriate for the workplace. Like she had done in other parts of her testimony, the complainant appeared to be attempting to establish that she was not responsible for circulating the pictures because she had not looked at them and had simply turned them over to people when they asked to see them. I found her assertion that she did not understand why her co-workers were asking to see them and her explanation of how the pictures were circulated incredulous.

106The complainant denied that she ever asked her co-workers if she had a nice body although a number of witnesses who saw the vacation photos confirmed that she asked questions of this kind as she was showing the pictures. She was then asked about having brought in a second series of photos which counsel for the respondents described as “modelling” photos.

107First, the complainant said she could not recall bringing modelling pictures to the workplace. Then she was asked whether she had ever had a picture taken topless facing the camera. The complainant responded: “I don’t have such pictures”. She was asked again whether she had ever had any topless pictures taken and she responded this time with “I don’t recall”. She admitted to having pictures of some kind taken of herself in a photo studio in China two or three years prior to her arrival in Canada. She explained that it was part of a trend for women and girls to have pictures taken of themselves at certain moments in their life.

108She agreed that the pictures were both in colour and black and white and then she was asked a third time whether any of those photos depicted her topless. She responded “no”. Counsel for the respondents advised her that some of his witnesses would testify that she brought in modelling pictures and said she was going to show them to Mr. MacDonald as a going away present. She responded, “I don’t recall”. And then counsel for the respondents advised her that Mr. McDonald would testify that he saw her topless in a photograph and the complainant’s response was to ask: “What does topless mean?” She then admitted that she had pictures of herself in a bra taken, but claimed she had never shown these pictures to co-workers. And then, finally, the complainant denied that she had ever shown Mr. MacDonald a topless picture of herself.

109During this series of questions, I found the complainant to be extremely evasive. In other circumstances I might find it reasonable that a complainant could be confused about the distinction between being topless and naked from the waist up. However, her confusion emerged at the end of a series of attempts on her part to avoid discussion of the topic altogether and at a point at which she was being confronted with the fact that Mr. MacDonald would testify that he saw the pictures in question.

110The complainant’s representative made the submission that even if a woman brings a topless picture of herself to her workplace it is not an invitation to engage in sexual harassment. I have not considered the photo in that context. I have considered it purely as it relates to her denial that the photo ever existed. It is possible that the complainant was avoiding telling the truth about the photo because she feared that it would be used against her in just the way that her representative described. Nevertheless, her evasiveness on this issue does not reflect well on her credibility and in my view, the evidence of Mr. MacDonald on this point is to be preferred. If this had been an isolated incident in her testimony it would not have been fatal to her credibility.

111Mr. MacDonald testified that the complainant brought in a topless picture of herself which she showed to him. He could not recall if she was sitting or kneeling but she was naked from the waist up in the photo. He could not recall if it was black and white or colour. He described the complainant as having some kind of “frilly gown” on the bottom. He could not recall if it was framed and he could not recall why the complainant was showing it to him. He did recall that the complainant told him that she had done some modelling when she was younger.

112Mr. MacDonald was soft-spoken, not prone to exaggeration, took the process of testifying seriously and was careful in his answers. There was no judgment of the complainant, no accusations, just a straightforward recounting of the facts.

113This concluded the complainant’s testimony. I will now consider the evidence of the other witnesses, including the one witness who was supportive of the complainant’s testimony, Eugene Konopinski. I have set out the evidence of other witnesses as their testimony relates to the following:

a) the events leading up to and following the termination of the complainant’s employment, which form the basis of her claim of reprisal;

b) the sexual harassment allegations; and

c) the racial harassment allegations.

Events Leading to the Termination

114Mr. McLeod testified that just days before her termination he met with the complainant following a complaint by a customer that the complainant had promised delivery of a refrigerator that was not in stock. He testified that he took the call from the customer personally and that the customer was very angry. Mr. McLeod testified that he confirmed that the merchandise was not in stock and that there was no chance of delivery as promised. Mr. McLeod testified that he met with the complainant and stressed to her the seriousness of the situation and advised her that this could not happen again. He recalled that he had to ask the complainant several times if she understood because she appeared not to be paying attention. Mr. McLeod testified that the complainant responded by making excuses, then apologizing, and then becoming angry, persisting in saying that it was not her fault. Mr. McLeod testified that he told the complainant that if it happened again it could be cause for termination. He confirmed that the complainant did not raise any concerns about harassment or discrimination with him during that meeting.

115Mr. McLeod testified that there was no associate warning issued in relation to this matter. He testified that it was unusual for an employee to be required to meet with the Area Supervisor and as a result, he had some confidence that the situation would change.

116Ms. Van Opynen testified that she told Mr. Xavier about the dispute on July 3, 2004, between the complainant and Mr. Studley about the returning customer. The complainant took the position that the customer was returning to see her. Mr. Studley took the position that the complainant was attempting to take a customer out of turn and interfering with his customer. Ms. Van Opynen discussed the incident with both parties and came to the conclusion that she should split the deal between them because she could not come to a definitive conclusion about what had happened. She also testified that she had to remind the complainant once again about the rule against approaching an associate with a customer and attempting to engage in a dispute on the floor.

117Ms. Van Opynen testified that the complainant cried and told her she thought it was unfair and that Mr. Studley was lying. Ms. Van Opynen testified that she told both the complainant and Mr. Studley that she would be reporting the incident to Mr. Xavier. Again, the complainant testified that she did not recall this meeting with Ms. Van Opynen.

118Ms. Van Opynen testified that shortly after this incident she became aware that the complainant had promised weekend delivery of a dishwasher that was not in stock. Again, Ms. Van Opynen addressed the issue directly with the complainant, who was directed to call the customer and sell the floor model in order to guarantee delivery. A document confirming the sale of the dishwasher was entered into evidence. The words “go price match on July 5, 2004” are noted on the document in the complainant’s handwriting. Ms. Van Opynen testified that the dishwasher was discounted because it was a floor model. Again, the complainant cried but did as she was directed.

119The complainant testified that she did not remember Ms. Van Opynen telling her that she was going to report the recent incidents to Mr. Xavier. The complainant also testified that she did not remember the meeting with Mr. McLeod where he told her that her job could be in jeopardy. I found her failure to remember these events lacking in credibility. The meeting with Mr. McLeod was of a serious and unusual nature and she was on notice from that point forward that her position was in jeopardy. The knowledge that Ms. Van Opynen was about to report her to Mr. Xavier must have caused her significant distress. The complainant’s own evidence was that on the day following her last interaction with Ms. Van Opynen she was distraught and crying at the sales post first thing in the morning before the weekly sales meeting commenced. She also testified that Mr. Bansal warned her that something was going happen. The most reasonable explanation for her reaction is that she was aware that her job was in jeopardy and that she was very likely to be terminated once Ms. Van Opynen reported the most recent incidents to Mr. Xavier.

120Ms. Van Opynen testified that she entered the conference room in advance of the sales meeting on July 4, 2004, and found the complainant weeping in the corner. She testified that she took the complainant into the sales lounge and that the complainant told her that she felt she was going to get fired and that people were ganging up on her. Ms. Van Opynen testified that she responded to the complainant by telling her that she would need to speak with Mr. Xavier who would be the person to make that decision. Ms. Van Opynen denied that the complaint made any disclosure to her about experiences of harassment and discrimination.

121I believe that the complainant persisted in telling Ms. Van Opynen that she felt she was not being treated fairly by the company, that the dispute with Mr. Studley was not her fault and that the stock issues which had recently arisen were the subject of a misunderstanding. This is completely consistent with the testimony of the complainant at the hearing and the evidence of the witnesses who were involved in disciplining her, that she did not have a reasonable perspective on her own behaviour.

122Ms. Van Opynen testified that she met with Mr. Xavier the next day, on the Monday, and told him about the incident with Mr. Studley and the complainant as well as the issue with the delivery of the dishwasher and the discussion she had with the complainant before the sales meeting. She testified that Mr. Xavier’s response was that there were multiple issues with the complainant and he needed to make a decision. Ms. Van Opynen was not involved in the decision to terminate the complainant.

Termination Meeting

123Mr. Xavier testified that he had met with Mr. McLeod and discussed their concerns about the complainant’s performance. He testified that he was aware that Mr. McLeod had met with the complainant and had given her a final warning. Mr. Xavier testified that the events that were reported to him by Ms. Van Opynen caused him to decide that it was time to terminate the complainant’s employment.

124Mr. Xavier testified that he considered all of the warnings, as well as the conversations which were not documented, and came to the conclusion that it was necessary to terminate the complainant’s employment. He testified that he felt it was important to give her opportunities to improve but by July 2004, he had come to the conclusion that the improvements were not going to happen.

125Mr. Xavier testified that he held the meeting at the end of her shift to minimize any embarrassment the complainant might experience. He testified that he started the discussion with the complainant by recounting his understanding of the dispute with Mr. Studley regarding the returning customer. He told her that this episode combined with all of the previous incidents caused him to decide to end her employment. He gave her the option of resigning or being terminated.

126Mr. Xavier testified that the complainant started crying and telling him that the incident with Mr. Studley was not her fault. Mr. Xavier testified that the complainant appeared to be fixated on this single event as the reason for her termination. He attempted to reinforce that it was more than just the incident with Mr. Studley. Mr. Xavier admitted that although he remained calm he probably sounded frustrated with the complainant during the termination meeting. He testified that he found the complainant frustrating to deal with because of her crying and denials.

127The complainant refused to sign any documents related to her termination and said that she intended to speak with Mr. McLeod.

128Mr. Xavier denied that the complainant made mention of any allegations of sexual harassment in her meeting with him. He testified that if she had made allegations of that kind, he would have asked her to put them in writing and he would have addressed them with those involved and discussed it with Mr. McLeod.

129During his cross-examination, Mr. Xavier was asked if he gave the complainant the opportunity to explain the conflict between her and Mr. Studley. He responded that they spoke about it, not in detail, but she told him she did not believe it was her fault. Mr. Xavier emphasized to the complainant that her termination was the result of the culmination of performance difficulties and not that one interaction with Mr. Studley. He took the file of warning letters out and put it on his desk to show her.

Events Following the Termination

130The complainant testified that she waited in the parking lot to speak with Mr. McLeod, the Area Supervisor, the morning after her termination. She testified that she asked him to look into the allegations of harassment and discrimination she had allegedly reported to Mr. Xavier. She denied engaging in any conversation about her termination. Mr. McLeod testified that he met the complainant in the parking lot and that she disclosed to him that she had been terminated. He testified that the complainant told him that she did not think it was fair that Mr. Xavier had treated her rudely. Mr. McLeod described the complainant as very emotional and crying. Mr. McLeod denied that the complainant raised any concerns with him in this meeting in the parking lot about her allegations of harassment and discrimination. Having waited for Mr. McLeod in the early morning hours before the store opened to catch him in the parking lot, I find her assertion that she did not mention her termination improbable.

131Mr. McLeod testified that he spoke with Mr. Xavier after meeting the complainant and that he called the complainant a few days later and discussed the termination with her. He testified that he told the complainant that he supported the decision to terminate her employment. He testified that the complainant kept repeating that it was not her fault, that he did not understand and that she wanted another chance. Mr. McLeod confirmed that there was no discussion of any allegations of harassment or discrimination. The complainant testified that she did not recall this telephone conversation.

132Mr. McLeod testified that although it was Mr. Xavier who made the final decision to terminate the complainant, he agreed with the decision. He testified that to have so many performance issues in 20 months of employment was exceptional.

133In support of this evidence the respondent produced the warning letters received by Mr. Bansal and Mr. Studley over the course of their careers with the corporate respondent. Mr. Bansal received five warnings spanning the years 1999 to 2007. Mr. Studley received one warning in 2004 and two warnings in 2007. The warnings were issued for reasons that were similar to the warnings issued to the complainant, including below average sales numbers and missed training sessions.

134Mr. McLeod also testified that he investigated the complainant’s allegations of harassment and discrimination after receipt of her letter to the company president of August 16, 2004. Because of my finding that there is insufficient evidence to support the harassment and discrimination allegations or the disclosure of those allegations, I have not found it necessary to make any findings in relation to the question whether the corporate respondent met its duty to properly investigate.

Letter to Company President

135After her termination, the complainant wrote a letter, dated August 16, 2004, to Terry Leon, president of the corporate respondent.

136The applicant notes in her letter that she was one of the top sales professionals, that she had exemplary sales records and that she was terminated “suddenly without reasonable grounds and no one seems willing to inform me why.” She alleges that her termination was based on racial or sexual discrimination.

137This description of herself as a top sales associate, as well as the descriptions of her termination meeting are illustrative of the difficulties with the complainant’s oral testimony arising from her lack of perspective. In this letter and throughout her testimony, the complainant demonstrated an inability to consider the possibility that she was terminated because of legitimate performance concerns.

138The complainant alleges in the letter that she was brought into a “locked and secured room, alone with the General Manager” where she was “disgraced and intimidated” during the termination meeting. She writes that she felt it was Mr. Xavier’s intention to make her feel “persecuted unjustly and treated like a criminal”…”I feel that he treated me the way he did because of my ethnic origin, my sex and can see no other reason someone in his position would treat a person the way he did.” Again, this is an example of the complainant’s tendency to dramatize the circumstances she found herself in.

139Although the complainant describes it in much more dramatic terms, it is apparent from her letter to Mr. Leon that Mr. Xavier tried to explain the reasons for the termination. He attempted to talk to her about her history of written warnings, the meeting she had with Mr. McLeod, who warned her that future incidents of misconduct would lead to termination, and the events that had occurred in the days leading up to July 6, 2004. And yet, in both the letter and throughout her testimony, she persistently refused to acknowledge that she had received any explanation for her termination nor could she remember key meetings where her performance issues were discussed.

140The complainant also indicates in the letter to Mr. Leon that she reported the sexual harassment first to Ms. Van Opynen on July 4, 2004, and then to Mr. Xavier on July 6, 2004. She indicates that she spoke with Mr. McLeod and informed him of the harassment allegations on July 7, 2004, the day after her termination.

141The complainant received a response to her letter, dated September 17, 2004, from corporate counsel for the corporate respondent. The complainant was advised that her allegations had been investigated. The letter confirms that the termination occurred because she received five written warnings about her conduct in less than one year and eight months of employment and because of incidents which were documented in her quarterly reviews, and numerous other incidents which were never recorded. The letter notes that she received the same explanation in her discussion with Mr. Xavier on the day of her termination, during a conversation the following day with Mr. McLeod in the parking lot, and the next day in a telephone conversation with Mr. McLeod. According to the September 17, 2004 letter, the investigation could not confirm any of the complainant’s allegations of sexual harassment or that she reported the claims, and, as a result, they were determined by the corporate respondent to be unfounded.

142The burden is on the complainant to prove, on the balance of probabilities, that she disclosed the allegations of harassment and discrimination and that combined with the timing of her termination support the inference, on the balance of probabilities that the termination was an act of reprisal. However, given the concerns I had about the complainant’s credibility, the lack of detail about the disclosures she allegedly made to Ms. Van Opynen and Mr. Xavier, and the evidence related to her performance, I am unable to find she has proven the reprisal portion of the Complaint.

Harassment Allegations

Commission Intake Form

143The complainant’s letter to Mr. Leon also contains her allegations of sexual harassment against Mr. Bansal and Mr. Studley. Those allegations are broadly consistent with the allegations in the final version of the Commission Complaint. They are not, however, consistent with the Commission’s intake form which was prepared by the complainant before her Complaint was formalized.

144I recognize that the Commission’s intake and complaint forms are not meant to set out every single detail associated with a complainant’s allegations and that there is sometimes good reason for those allegations to evolve throughout the course of an investigation and hearing. However, in circumstances like this, where the complainant’s credibility is so clearly in question, those documents assisted me in understanding what the complainant considered important enough at the material time to report to the Commission, as opposed to what she testified to years later.

145The complainant prepared an intake form dated September 24, 2004, for the Commission which formed the basis for the drafting of her formal complaint dated January 11, 2005. Notably, the complainant does not name Mr. Bansal as a respondent nor does she make any allegations of sexual harassment against him. Instead, Mr. Bansal is listed as a witness who can attest to Mr. Xavier having treated the complainant poorly during her employment. There are also no allegations related to the termination, her disclosure of her allegations to Mr. Xavier, nor does she mention the sexually derogatory comment that Ms. Van Opynen is alleged to have made at the party for James Barnett.

146The allegations contained in this document are as follows:

1. Feb. 2/2004 the complainant is documented by Mr. Barnett for appearance issues;

2. April, 2004 Mr. Studley fondles the complainant’s thigh and tells her he finds her sexually attractive;

3. May, 2004 Mr. Xavier was reported to the Area Supervisor for mistreating the complainant;

4. May, 2004 Mr. Studley makes a comment about male penis size and makes several attempts to get the complainant to attend at his trailer;

5. June, 2004 the complainant is informed by Mr. Xavier that her Chinese food smells bad and she needs to brush her teeth after she eats;

6. June 27, 2004 the complainant is told by Mr. Xavier not to speak Chinese to Chinese customers;

7. July 4, 2004 the complainant was in tears and reported to Ms. Van Opynen that Mr. Studley had been harassing her;

8. July 5, 2004 the complainant believes that Mr. Studley has told Mr. Xavier “either she goes or I go”

Commission Complaint

147The final Complaint is dated January 11, 2005. It includes some of the allegations which were missing from the intake form, namely that the complainant believed that she was terminated because she complained about discrimination and the fact that she disclosed her allegations to Mr. Xavier. The comment alleged to have been made by Ms. Van Opynen is not included in the final complaint form.

148The final Complaint contains the following allegations against Mr. Studley:

• he touched my thighs;

• he told me that I had appealing legs and buttocks;

• he said that he found me sexually attractive;

• he invited me to his trailer;

• he made comments about men’s genitalia.

149The final Complaint contains the following allegations against Mr. Bansal:

• he showed me pornographic pictures;

• he told me that he liked me;

• he asked me if I like to perform oral sex;

• he asked me questions about my sex life;

• he offered to massage my breast;

• he touched my hands and thighs;

150Mr. Konopinski provided the only evidence which was supportive of the complainant’s claims. I have set out here only those direct observations made by Mr. Konopinski or statements that were made to him directly by the parties. Counsel for the respondents raised legitimate concerns about the extent to which Mr. Konopinski’s evidence deviated from his witness statement which was prepared from his notes and conversations with staff in the office of the complainant’s representative. At worst, Mr. Konopinski was not very careful in ensuring that the witness statement accurately reflected his recollections. However, wherever the witness statement went beyond Mr. Konopinski’s own recollection, he had no difficulty pointing out that it was incorrect, even if the language of the witness statement was obviously more supportive of the complainant.

151I found Mr. Konopinski thoughtful and careful in his testimony. He was not prepared to guess at dates and events and he readily admitted when he was making assumptions or speaking about events which he had heard about rather than observed himself. He was not argumentative with counsel and gave no indication that he had any interest in the proceeding other than to convey what he recalled observing in the workplace. The only part of his testimony which caused me some concern arose when he testified that he observed inappropriate sexual conduct toward the complainant over a period of approximately one year when in fact the complainant only worked in appliances for four months. I did not believe that this mistake called into question the veracity of his evidence on what he actually observed in the workplace.

152Mr. Konopinski had not worked for the corporate respondent since shortly after the complainant was terminated. He testified that while he knew the complainant they did not maintain a social relationship. They talked occasionally, once every three months or so, and may have had coffee once or twice year.

153Mr. Konopinski readily admitted that he spent most of his time in the furniture department and often had an obstructed view of appliances. He estimated that he had about two hours of contact with the staff in appliances throughout the day, visiting, talking with them, and travelling through the department to reach other parts of the furniture department.

154He testified that he heard Mr. Studley say that he was going to try and get the complainant up to his cottage to “show her what a real man was like”. The complainant was not in the room when this statement was made. Mr. Konopinski never witnessed Mr. Studley inviting the complainant to his trailer and he was not aware of any open invitation to employees or that others had visited the trailer in the past.

155Mr. Konopinski testified that he saw the complainant’s Florida vacation photos, that it was common practice to bring pictures in and he saw nothing distasteful in them. He denied ever seeing or hearing about a topless photo of the complainant.

156Mr. Konopinski testified that he saw Mr. Studley trying to get the complainant to sit in his lap and observed him dropping pens and asking her to pick them up. He testified that the appliances and furniture sales posts were about 20 or 25 feet apart and that in general he could at times see and hear what was going on. He observed the “dropping” incidents more than three or four times and testified that both Mr. Studley and Mr. Bansal engaged in this behaviour. He acknowledged that although he thought it was inappropriate, he did nothing about it.

157Mr. Konopinski testified that he witnessed Mr. Studley pull the complainant into his lap while he was at the computer terminal located directly in front of the appliance department. He admitted that could not hear what they were saying and that he had no direct knowledge of Mr. Studley asking the complainant to sit in his lap. However, he described Mr. Studley grabbing the complainant’s arm as she walked by and the complainant pushing him away once she was on his lap.

158He testified that Mr. Bansal shared with him that he had been trying to ask the complainant out for lunches and dinners but she declined. He testified that Mr. Bansal also asked him if he thought the complainant was “getting enough” when they were outside smoking. This discussion took place while they were outside of the store smoking together. He also testified that he heard Mr. Bansal bragging about “what he had done with this woman back in Cuba” when he was showing his vacation pictures to staff members. He was not, however, present when the pictures were shown to the complainant, nor was he present when Mr. Bansal allegedly asked the complainant out.

159Mr. Konopinski testified that he observed Mr. Bansal trying to give the complainant a shoulder massage and observed the complainant get up and move. He admitted however, that he not heard the conversation between the two of them, did not know why the complainant had moved and never discussed it with the complainant. He could only recall this one occasion and again, needed to correct his witness statement, which noted that he had observed this behaviour on “many occasions”.

160Mr. Konopinski testified that he observed the complainant crying on or about the time of the sales meeting on the Sunday before the complainant was terminated. He told Ms. Van Opynen that “there was a problem and that she should look into it”. Mr. Konopinski did not identify the problem to Ms. Van Opynen, nor could he recall exactly when he spoke with her. Mr. Konopinski testified that he never raised his observations with the complainant and she never raised her concerns with him.

161The complainant’s allegations were denied by Mr. Bansal and Mr. Studley.

162Mr. Bansal denied engaging in any of the conduct that he was accused of and denied witnessing any of the conduct that Mr. Studley was accused of engaging in. He testified to having dinner once with the complainant after the store was closed which was initiated by the complainant. He argued that the complainant had no reasonable explanation for the differences between the intake form where he was named as a witness and the Commission complaint where he was named as a respondent other than the fact that she had called him and he had refused to support her allegations against Mr. Studley.

163As I set out early in this Decision, the complainant was unable to provide a reasonable explanation for initially citing Mr. Bansal as a witness in the intake form and then as a respondent in the complaint form. I accept the respondents’ counsel’s submission that despite Mr. Konopinski’s testimony, I should dismiss the Complaint against Mr. Bansal on the basis that the inconsistencies in the documents and the complainant’s failure to adequately explain them, combined with the general concerns about the complainant’s credibility, are fatal to her case against him.

164Mr. Studley testified that he and the complainant did not work together every day but rather two or three days a week when they found themselves on the same shift.

165On the issue of the trailer invitation, Mr. Studley testified that he issued an open invitation to co-workers in the summer time to visit his trailer. He denied that he ever issued a private invitation to the complainant for the purpose of sexual solicitation. He testified that some of his family members also had trailers in very close proximity to his own and he would never be able to escape detection if he went to the trailer with another woman. Mr. Bansal testified that he was invited to Mr. Studley’s trailer and visited twice. He described one of those times as involving about six or seven people from the corporate respondent and a few of Mr. Studley’s family members. He understood that in the summertime there was an open invitation to staff to visit Mr. Studley’s trailer.

166Mr. Studley testified that on several occasions the complainant would walk by and sit in his lap and put her arms around him. He described this act as friendly rather than sexual and testified that the complainant told him he was like a father to her. He was not offended by it nor did he ever initiate the complainant sitting in his lap. On cross-examination Mr. Studley admitted that this was probably not appropriate behaviour for the workplace.

167Mr. Studley admitted that there were occasional comments and jokes made which he described as normal bantering in the workplace. He testified that the banter which took place at the going away party for Mr. Barnett, which was highly sexual in nature, is not what he would describe as normal workplace bantering.

168Mr. Studley also testified that the complainant asked him if he thought she was beautiful and had a nice body while she was showing him her pictures from Florida. He replied “yes” to be polite. He recalled a conversation where the complainant said that she would like to have a baby with him because the baby would then have blue eyes. Again he testified that he was not offended by these comments.

169On cross-examination Mr. Studley testified that he had asked for a transfer because of the number of conflicts he had with the complainant, many of which were not reported to management. The complainant asked me to draw the inference that the transfer request came as a result of Mr. Studley learning that the complainant was in the process of disclosing allegations of sexual harassment against him. In my view, there is insufficient evidence to draw this inference and ample evidence to demonstrate that there was a serious professional conflict between Mr. Studley and the complainant which was more likely than not the basis for the transfer request.

170Apart from Mr. Konopinski’s evidence there was one document that was created during the course of the respondent’s investigation into the complainant’s allegations which sets out the observations of a woman who worked with both Mr. Studley and Mr. Bansal. She is reported as saying that sometimes there were sexual remarks and discussions but she felt that they were said in fun and presented in a joking manner. This witness was not called by either party.

171The testimony of Eugene Konopinski supported some aspects of the complainant’s allegations. Although his oral testimony was somewhat different from his witness statement, I disagree with the respondents that this reflects negatively on his credibility. Mr. Konopinski was careful to point out where the complainant’s representative, who prepared the “will say”, had incorrectly stated his recollections. By the time of his testimony Mr. Konopinski was no longer an employee of the corporate respondent, there were no allegations that he had any reason to be aligned with any of the parties and I found no reason to doubt his testimony.

172Mr. Konopinski heard what he described as “locker room” comments made about the complainant when she was not present, one incident where it appeared that she had been pulled into Mr. Studley’s lap (although he could not hear the conversation), an attempt by Mr. Bansal to massage the complainant’s shoulders (although again he could not hear the conversation), the dropping of pens to look up the complainant’s skirt and some inappropriate behaviour at a work-related party.

173Mr. Konopinski’s evidence raises an obvious concern about the possibility that the applicant was working in a sexualized environment although I note that he did not report the conduct nor did he ever reach out to the complainant to provide her with support or clarify what she was experiencing. He only spoke with Ms. Van Opynen when it was apparent that the applicant was openly weeping at work before the sales meeting that preceded her termination and even then he did not mention what he had observed. The problem in relying on Mr. Konopinski’s evidence alone is that it is the complainant who must provide credible evidence to establish the full context for these allegations. Without that context, I cannot say on the balance of probabilities that the applicant has proven that she was a victim of sexual harassment on the legal standard.

174I have considered whether Mr. Konopinski’s evidence would be sufficient if the applicant was unable to testify on her own behalf. Even on that standard, which would permit me to assess his evidence without reference to the complainant’s credibility, I cannot say his evidence is sufficient to meet the legal standard.

175I did not find Mr. Studley’s explanation for why the complainant was sitting in his lap during working hours particularly compelling. On the other hand, Mr. MacDonald, who worked directly with the complainant in appliances but was never accused of harassment or discrimination, admitted that the occasional inappropriate comment was made, but he could not identify in any way with the complainant’s description of their shared workplace as one beset by sexual comments and touching.

176Given that I cannot rely on the complainant’s evidence for a full understanding of the context, I cannot determine, on the balance of probabilities, that there is sufficient evidence to conclude that the complainant was subjected to a course of vexatious conduct which was known or ought to be known to be unwelcome.

177The legal standard that I must apply is not necessarily the same standard a prudent employer would apply to the possibility that these kinds of activities are taking place in the workplace and off-site at work-related events. I note that the management witnesses who appeared at this hearing were unable to define sexual harassment and had little or no experience ever handling a sexual harassment complaint. This employer would benefit by introducing more training and monitoring in the workplace so that the burden is not always on a victim of harassment to come forward through the Associates Voicing a Concern program.

Racial Discrimination

178The complainant alleged discrimination on the basis of both race and colour; however, she did not differentiate between those two grounds during submissions or in her evidence.

179The complainant was issued a warning letter related to her personal hygiene by Mr. Barnett. Mr. Xavier testified that he spoke with the complainant after she received the warning. He testified that when he met with the complainant in his office he told her that he had some of the same issues with odours from his diet including strong-smelling curry and how he addressed them. Mr. Xavier testified that the complainant thanked him for bringing the issue to her attention. There is no evidence that the issues raised with the complainant about her breath and dandruff were in any way related to race or colour.

180The complainant alleged that she was told that the odour of her Chinese food was offensive and she could not use the microwave or eat lunch at work. Mr. Konopinski testified that he witnessed Mr. Xavier telling the complainant that there were some employees complaining about the smell of her food and that perhaps she should eat it outside of the lunch area. There were approximately four or five people present including the complainant. Mr. Konopinski was of the view that the complainant had been singled out. However, he was not present when other discussions may have taken place between the complainant and Mr. Xavier or Mr. Xavier and other staff members. Mr. Xavier testified that he asked all of the sales associates in this multi-ethnic workplace to stop eating at the sales post and to use other facilities available to them. I have determined that it is not necessary for me to resolve any conflict on this point since I would not find this single incident serious enough to constitute racial discrimination (Murchie v. JB’s Mongolian Grill, 2006 HRTO 33, Romano v. 1577118 Ontario Inc., 2008 HRTO 9; Race v. Canadian Auto Workers, 2011 HRTO 24, Szabo v. Niagara (Regional Municipality), 2010 HRTO 1083).

181The complainant alleged that she was not permitted to speak her first language, Cantonese, with customers and that she was forced to speak with them in English. Mr. Xavier testified that English is the language used to initially greet a customer but if the customer is more comfortable in another language, the sales associate is encouraged to speak in that language as an aspect of their service to the customer. Ms. Van Opynen confirmed the same policy. There was no evidence that the complainant was ever disciplined for not adhering to the policy.

182Mr. Xavier testified that the sales associates were instructed to approach prospective customers in English first but that they are encouraged to serve customers in other languages based on the customer’s preference. Mr. Barnett testifed that the complainant would attempt to secure herself an advantage in this highly competitive sales environment by handing out business cards, which was prohibited, and making it known to customers that she spoke Cantonese. I accepted that the rule against approaching a customer in a language other than English was directed at ensuring that associates were not taking prospective customers out of turn.

183Accordingly, with respect to the allegations on the basis of race and colour, I find that there is insufficient evidence to substantiate a breach of the Code.

184For all of these reasons, the Complaint is dismissed.