HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Halima Nuur
Applicant
-and-
Chubb Edwards a U.T.C. Fire, Security and Climate Company, Cathie Hutchinson, Tina Tackore and Rose Chunara
Respondents
DECISION
Adjudicator: Brian Cook
Indexed as: Nuur v. Chubb Edwards a U.T.C. Fire, Security and Climate Company
APPEARANCES
Halima Nuur, Applicant
Marcia Channer, Representative
Chubb Edwards a U.T.C. Fire, Security and Climate Company, Cathie Hutchinson, Tina Tackore and Rose Chunara, Respondents
Kristin Taylor, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, ancestry and ethnic origin.
2This is one of three Applications that were filed in the same time frame. In Interim Decision 2012 HRTO 2040 the Tribunal consolidated the Applications. One of the Applications was dismissed as an abuse of process: Kaseba v. Chubb Edwards a U.T.C. Fire, Security and Climate Company, 2013 HRTO 912. One of the Applications was settled between the parties. This Application was the only one that was the subject of a full hearing.
3The corporate respondent operates commercial and residential security system businesses. The applicant was employed as a Collection Agent in the collection department. It is responsible for contacting individuals and businesses in respect of various billing matters including unpaid invoices and disputes about invoices.
4Tina Tackore is a personal respondent. Ms. Tackore started her employment with the corporate respondent in 1988 as a Collection Agent. She became the Manager of the Collections Department in 2006 and has been in that position ever since.
5Rose Chunara and Cathie Hutchinson are also personal respondents. They are both supervisors, but neither directly supervised the applicant.
6The Application was heard over five days of hearing in April and May 2013. I heard testimony from the applicant and the personal respondents and also from a number of witnesses called by the respondent as discussed in more detail in the reasons that follow.
7A co-worker was called as a witness in respect of all three of the original Applications and on behalf of the three original applicants. Her evidence is not relevant to the facts of this Application.
Background
8The applicant was employed as a bilingual Collection Agent from October 5, 2009 until May 7, 2012, when she resigned her employment. She alleges that during her employment she experienced discrimination and harassment because of race, ancestry, place of origin and ethnic origin and that she was forced to resign because the discrimination and harassment became intolerable.
9The applicant testified that she was born in Djibouti, a country in East Africa. She identifies herself as a Black woman.
10In general terms, the applicant alleges that she was subject to racial comments and harassment personally and that she was exposed to racial comments made to co-workers. She alleges that the comments and harassment were continuous from Ms. Tackore and that Ms. Chunara and Ms. Hutchinson also engaged in this behaviour. Co-workers also harassed her. In her testimony she indicated that she was even physically attacked by co-workers.
11She alleges that in June 2011 she made a formal verbal complaint to Sandra Santos, who was the Senior Manager of Human Resources at all relevant times. The respondents maintain that the applicant did not make a complaint in June 2011.
12It is not disputed that the applicant made a formal written complaint in October 2011. Ms. Santos conducted an investigation, but the applicant was not satisfied with the result. The applicant alleges that the situation became intolerable and that she was forced to go off on a sick leave in April 2012. On May 3, 2012, while she was off work, she filed this Application. The applicant alleges that she forced to resign on May 7, 2012, because of a poisoned environment. On the same day she started a new job with a new employer.
General observations about the applicant’s allegations
13In her submissions on behalf of the respondents, Ms. Taylor indicated that the applicant’s allegations appear to have evolved over time. I agree with this submission. There are significant differences between the applicant's allegations in respect of the period of employment that were made in the time she was working as compared to the allegations about the period of employment that were made after she stopped working. In addition, the allegations of discrimination set out in the Application differ in some significant ways from the allegations of discrimination detailed in the applicant’s testimony at the hearing. Finally, there were further differences as between the applicant’s testimony about the allegations of discrimination and the final submissions of her representative concerning the alleged events.
14As discussed in more detail below, the applicant’s documented complaints in the period that she was working include allegations of harassment and unfair treatment but do not make any connection between the harassment and unfair treatment and any Code-protected ground. The Application, which was filed at the same time that the applicant resigned her employment, does contain allegations of harassment, discrimination and unfair treatment and does connect this to Code-protected grounds. However, the events as described in the Application are much more moderate in nature as compared to the events described in the applicant’s testimony, which also included allegations not mentioned in the Application. A similar change was apparent in comparing the applicant’s testimony with the final submissions.
General observations about the respondents
15The corporate respondent is part of a very large corporation, based in the U.S. Evidence shows that it has a comprehensive policy commitment to workplace ethics. This primarily is designed to ensure ethical business practices, but also includes policies that address workplace discrimination and harassment and establish procedures for how allegations of discrimination and harassment will be addressed. The policies demonstrate a commitment to providing a safe workplace for the company’s employees. There is ongoing training about workplace ethics that includes training about discrimination and harassment. There is not a specific separate Ontario-based policy regarding the Code, but the Code-protected grounds are dealt with in the general policies and in workplace violence and harassment policies introduced in 2010 following amendments to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.
16In conjunction with the parent company, the corporate respondent has a number of systems in place if an employee feels that harassment or discrimination has occurred. These include an Ombuds program and a Business Practice Unit. I heard evidence about the operation of these various programs. On the basis of the evidence I heard, it appeared that there was a potential for some confusion on the part of employees regarding which program could best be accessed and the relationship between some of the programs.
17For example, Kelly Ann Kenny is a Business Practice Officer in addition to other duties, and she testified at the hearing. She testified that an important aspect of this position is dealing with complaints of discrimination and harassment in the workplace. Her workspace or office was in the immediate vicinity of the applicant’s workstation. Despite this, the applicant testified that she was not aware of Ms. Kenny’s role as a Business Practice Officer or that she was someone she could have gone to for help.
18The Collections Department is very diverse. Almost all of the principal participants or parties in this case are people of colour. Many are people who immigrated to Canada.
19Ms. Hutchinson testified that her ancestral heritage includes White, Black, Portuguese and Caribbean Indian.
20Ms. Tackore has a diverse ancestral heritage, which includes British, French, West Indian and Native Canadian. Her husband is Jamaican. She self-identified herself as a “visible minority” and indicated she is very proud of her heritage. It appears that the applicant assumed that Ms. Tackore has Trinidadian heritage as she alleged that Ms. Tackore gave preferential treatment people of Trinidadian heritage. However, Ms. Tackore testified that she is not Trinidadian. It appears that there was one worker in the department who has Trinidadian heritage.
21Ms. Chunara testified that she was born in India and grew up in Pakistan. She has an accent that is not strong but is noticeable. She testified that she has been an active volunteer with an immigrant settlement organization. She testified that she has personally experienced racial discrimination in her life but never during her employment with the corporate respondent. Ms. Chunara testified that she tries very hard to have her team work in a harmonious way and to have fun. She testified that she has experienced frustration when team members have not gotten along. She testified that her upbringing emphasized the importance of respect for others and that she has raised her own family in a similar way.
22During the hearing, it was evident that there were strong emotions on all sides. The applicant was upset about what she alleges occurred. Ms. Tackore and Ms. Chunara became visibly upset during their testimony. They both indicated that they have a personal strong commitment to principles of equality and human rights, and that they have been deeply affected by the allegations that have been made against them which are completely contrary to how they behave in life.
Allegations of yelling
23In her Application, the applicant indicated that Ms. Tackore and Ms. Hutchinson “yelled” at her and bullied her. In testimony she said that Ms. Tackore often “screamed” at her about her accent. In cross-examination, she indicated that this screaming occurred at least 15 times and that it occurred at the applicant’s workstation.
24Ms. Tackore testified that she did not yell or scream at the applicant. Ms. Hutchinson also denied doing this.
25The Collections Department is comprised of workstations for the Collections Agents who spend most of their day talking on the telephone to customers. The workstations are separated by partial walls so the whole area is “open concept”. Witnesses called by the respondents testified that there was no yelling or screaming in the area. They noted that offices of various senior company officials are in the immediate vicinity. If there was yelling and screaming it would have been apparent to them and they would have intervened, especially because any yelling or screaming in the area would also have been apparent to customers on the phone talking with other Collections Agents. Ms. Kenny testified that if there was yelling or screaming happening she would definitely have intervened in her capacity as Business Practices Officer.
26In her October 2011 written complaint to Human Resources, the applicant did not say anything about Ms. Tackore yelling or screaming at her.
27I agree with the respondents’ submission that if yelling was going on in the area, senior management would have been aware of it and would have stopped it.
28I conclude that the applicant has not established on balance that Ms. Tackore yelled or screamed at her.
29The October 2011 complaint did state that Ms. Hutchinson “raised her voice” in “a very demeaning tone” on one occasion on June 6, 2011. This incident is discussed in more detail below.
Comments about the Applicant’s Accent
30The applicant also alleges that Ms. Tackore frequently told her that she needed to “act like a Canadian”. This included speaking more softly and slowly. The applicant alleges that Ms. Tackore made fun of her accent. She recalled that she once mispronounced the name of a legal firm and Ms. Tackore made a joke at her expense.
31Ms. Tackore testified that she did not make fun of the applicant’s accent. She testified that the applicant speaks English very well and that she does not have a strong accent. She indicated that it can, rarely, become difficult to understand the applicant if she speaks too quickly. She testified that she occasionally did speak to the applicant about this. After listening to the applicant, I found that she speaks English very well and does not have a strong accent but could become difficult to understand if she spoke too quickly. Many of the other participants or parties in this case also have an accent, including Ms. Chunara. There was no indication in any of the evidence that any of them had ever felt made fun of because of their accents.
32It is possible that Ms. Tackore may have made a joke at the applicant’s expense about mispronouncing a name but this is not evidence of harassment or discrimination. It is likely that Ms. Tackore told the applicant to be careful about speaking too quickly. This was to make sure that the applicant would be understood by customers and was not harassment or discrimination.
Comments about the applicant’s manner of dressing
33The applicant alleged that Ms. Tackore, Ms. Chunara and Ms. Hutchinson made fun of how she dressed.
34They all testified that the applicant always dressed very well and denied making fun of how she dressed.
35Ms. Tackore testified that she never said anything about the applicant’s dress and that she was not aware that anyone else did either. In her opinion, the applicant always presented in a very professional manner.
36It is common in workplaces for workers to have general discussions about dress and it seems likely in this case that such discussions occurred. It is always possible that a particular comment or remark could be taken the wrong way but this is not the same as harassment or discrimination and not evidence of harassment or discrimination on the basis of a Code-protected ground.
Allegations about making up time
37The applicant also alleges that she experienced differential treatment when she was late or had to take time off for medical appointments. She was required to make up the time but others who missed time were not required to make up the time. She testified that she knew this because she observed people who were late leaving at their regular time.
38Ms. Tackore testified that lateness is an issue that particularly bothers her. She testified that she requires anyone who is late or needs time off to make up the time that day or within a short period of time. She indicated that the applicant was generally very punctual and there were rarely issues. She noted that the applicant could not know when people were making up time.
39Alexander Ulyanov supervised the applicant for a period of time. He testified that the applicant took it upon herself to monitor the hours of other employees and spoke to them about her observations. They did not take this well as she was not a supervisor.
40The applicant’s allegation of discriminatory treatment in regard to lost time appears to be based only on her observation that people who came late did not seem to have to stay later that same day. However, it appears that people were not required to make up time on the same day as long as it was made up. I find that the applicant could not have known how others were treated in terms of whether and how they were made to make up lost time and that there is no evidence to support her allegation of discriminatory treatment in regard to lost time.
Conversations with Co-workers in French
41The applicant alleges that she was criticized for speaking French with a co-worker who was also a bilingual Collections Agent. She testified that she was told that only English should be spoken in the workplace except if they were speaking to a French customer in the course of doing their jobs. The applicant alleges that other people spoke in various languages and they were not criticized or told to stop.
42Ms. Tackore testified that she does insist that everybody speak English unless they are required to speak another language in the course of doing their jobs. This is to make sure that people do not feel excluded and that there are not private conversations going on that could have a negative impact on the workplace. Ms. Tackore conceded that conversations in other languages probably do occur when she is not present.
43I accept that the applicant likely was criticized for speaking French to a co-worker. However, I also accept Ms. Tackore’s evidence that others were also criticized for speaking other languages between themselves.
44In the Application, the applicant alleged that Ms. Chunara asked her to complain to Human Resources about a co-worker with whom Ms. Chunara was having problems with, and to make false allegations about the co-worker.
45She repeated this allegation in her testimony, but added that in addition, Ms. Chunara asked her to physically attack the co-worker, with the hope that this would provoke the co-worker. She was asked why she had not mentioned this in the Application. She explained that it would have taken too much time to put everything into the Application.
46The allegation that a supervisor asked the applicant to physically attack a co-worker is considerably more serious than the allegation that a supervisor asked her to verbally provoke a co-worker. The fact that this allegation was not mentioned in the Application strongly suggests to me that the allegation is false.
47In final submissions, it was suggested that Ms. Chunara had called the applicant a “bitch”. This was not something that the applicant mentioned in her testimony and there is therefore no evidence to support the submission.
48The applicant testified that a co-worker (“S”) appeared to her to be mentally unbalanced. She testified that Ms. Tackore would talk privately to S after which S would act in a very aggressive way to the applicant. She suggested that Ms. Tackore was provoking S in the hope that he would attack the applicant. This allegation, which is quite serious, was not mentioned in the applicant’s complaints during the time she worked and not mentioned in the Application either. Ms. Tackore testified that S was not unbalanced and that he was not an aggressive person.
49The applicant alleges that a co-worker “attacked” her on an occasion in September 2011 when the two of them were at a photocopier and the co-worker pushed her against the wall. The applicant testified that the co-worker tried to say that this incident was a joke. The applicant testified that she complained about this incident to Ms. Tackore and Ms. Santos in Human Resources. She alleges that Ms. Tackore did nothing and that Ms. Santos told her that in the absence of supporting evidence, such as a witness, nothing could be done. I note that the applicant does not allege that there was any racial overtone to this incident. Accordingly, while there might have been an incident of un-witnessed workplace violence, it would not be something that would involve the applicant's Code-protected rights.
50In final submissions, it was suggested that another co-worker (who is Black) called the applicant a “greedy African”. This is not something that the applicant mentioned when giving her evidence.
The June 2011 incident
51In June 2011, Ms. Hutchinson was working on a project that required input from various members of the Collections Department, including the applicant. Ms. Hutchinson testified that on the day the project was due she left to attend an event, and when she returned everyone had provided the input except the applicant.
52The applicant testified that Ms. Hutchinson yelled at her. Ms. Hutchinson denied that she had yelled at the applicant but she agreed that she was quite irritated and expressed her irritation in talking to the applicant. The applicant complained to Ms. Tackore about this incident. Ms. Tackore called the applicant and Ms. Hutchinson into her office and reviewed the events. Ms. Hutchinson testified that Ms. Tackore also spoke to another employee who had witnessed the scene. Ms. Hutchinson testified that at the time she assumed that the matter had been dealt with. The applicant testified that she felt that it had not been appropriately dealt with.
53I note that the applicant does not allege that there was any racial overtone to this dispute. Even if it were true that Ms. Hutchinson raised her voice using a “demeaning tone” as the applicant has alleged, it would not be evidence of discrimination or harassment connected with any Code-protected ground.
54The applicant’s evidence is that she spoke to Ms. Santos, the Human Resources Manager, about this incident in June 2011 and that she also raised allegations about name calling, being yelled at by Ms. Tackore, and being made fun of because of her accent.
55Ms. Santos testified that the applicant did not make any complaint in June 2011 and that the only complaint that the applicant made to Human Resources was the October 2011 written complaint.
56I conclude that even if the applicant did make some sort of verbal complaint to Ms. Santos in June 2011, it is unlikely that the complaint included any allegations of racial discrimination or harassment.
57The main reason for this finding is that such complaints were not made out in the October 2011 written complaint. Allegations of racial discrimination or harassment are serious allegations and the specific allegations of racial discrimination and harassment that the applicant now alleges were occurring in 2011 and that she says she complained about, are significantly more serious than the things she actually did complain about in the October 2011 complaint. It would not make sense for the applicant to make a written complaint about some allegations and fail to include substantially more serious allegations.
The October 2011 complaint
58The October 2011 complaint was precipitated by an incident on or about October 3, 2011. A customer complained that the applicant had called him about a matter but that he had already resolved the matter in an earlier call with another Collections Agent. There is no dispute that the applicant was not aware that the customer had already spoken to the co-worker and resolved things with her. Agents are supposed to make a note in the system after speaking to clients. The applicant felt that the co-worker had failed to do this. In the course of the discussion about this incident which involved the applicant, the co-worker, Ms. Hutchinson and Ms. Tackore, another co-worker became involved. The other co-worker suggested that the applicant might have deleted a note that had been made. The applicant took offence at this suggestion. Ms. Tackore testified that she investigated the situation but it was impossible to verify what had occurred. Ms. Tackore testified that she had no doubt that the co-worker had failed to make the note and that the applicant had not deleted the note. She agreed that she may not have communicated this to the applicant.
59The applicant testified that after this incident, she complained again to Ms. Santos, and followed that up with a letter to Ms. Santos that was sent in October, 2011. This letter mentions the incident in June 2011 involving Ms. Hutchinson and the incident in October when the applicant was falsely accused of deleting a note. It also alleges that confidential information was improperly shared with co-workers and that a co-worker said that the applicant was “unbalanced and not well liked”. The letter indicates that the applicant felt that these behaviours were forms of bullying and harassment.
60A notable feature of the letter is that there is no mention of any of the racially-based harassment that the applicant alleges in the Application. When questioned about this, she indicated that she had not put all of her complaints into the letter due to time constraints.
61After receiving the written complaint, Ms. Santos conducted an investigation. She interviewed the applicant, Ms. Tackore, Ms. Hutchinson, Alex Ulyanov, the two co-workers who were involved in the discussion about the customer complaint and the allegation of note deleting. The record includes Ms. Santos’ notes regarding these interviews. Ms. Santos then prepared a report of the investigation that she reviewed with the applicant and the two co-workers. The report found that there was no evidence to substantiate the applicant's complaints that she had been bullied or harassed.
62In final submissions, it was suggested that Ms. Santos called the applicant a “liar”. This is not something that the applicant mentioned in her testimony.
63The report found that there was no way to establish for certain what happened in regard to the “note incident” involving the customer complaint. However, it was agreed that the co-worker should not have gotten involved in the ensuing discussion that did not concern her.
64The report mentions the allegation, mentioned above, that a co-worker had “attacked” the applicant. The report noted that it was surprising that this incident was not reported earlier, and not mentioned to Ms. Tackore earlier. The report noted that the alleged incident was not witnessed and was denied by the person who had allegedly pushed the applicant.
65The report noted that the applicant had made a number of allegations of serious bullying and harassment. The allegations were not supported and those involved had expressed surprise about the allegations and the two co-workers reported that they were upset that the allegations had been made.
66Ms. Santos recommended the whole team receive Workplace Harassment & Violence training again and that the applicant and the two co-workers all complete an online training program.
67As noted, while there were allegations of harassment in the applicant's October 2011 complaint and the subsequent investigation, there were no allegations that any of the harassment was racially-based.
68I conclude that the applicant has not established on a balance of probabilities that she was subject to harassment on any Code-protected ground.
Re-organization of the Collections Department
69In 2011, the Collections Department was re-organized. This included a move from one floor to another and the integration of a new program and new contracts. Ms. Tackore was put in charge of the transition, which lasted a few months. Alex Ulyanov was temporarily promoted from supervisor to backfill Ms. Tackore’s position. There was then a competition to backfill Mr. Ulyanov’s position as supervisor. Mr. Ulyanov was the supervisor of the applicant’s team. The applicant had in the past filled in as supervisor when Alex was absent. She applied for the acting supervisor position but was not selected. The applicant alleges that the selection process was discriminatory and that Ms. Tackore in particular discriminated against her and made sure she was not selected.
70Ms. Tackore testified that five people applied for the acting supervisor job, including the applicant. They were interviewed by a panel of three, including Ms. Tackore. After the interview, each of the three identified their top three choices. Only one candidate was identified by all three interviewers as a top choice and the job was awarded to him. Ms. Tackore indicated that this person is Egyptian. Ms. Tackore testified that the applicant was one of her top three choices.
71Apart from the fact that she was not selected for the position, the applicant provided no evidence in support of her speculation that the selection process was discriminatory. I accept Ms. Tackore’s evidence that she supported the applicant's candidacy and find no evidence to support the applicant’s allegation that the selection process was discriminatory.
The end of the applicant’s employment
72The applicant stopped work on April 9, 2012. She initially provided a note from Dr. Cianfrone, her family doctor, indicating that she would be off work for two weeks “due to medical issues”. On April 12, 2012, the applicant applied for short term disability benefits. The medical form indicated that she was suffering from a generalized anxiety disorder of moderate severity. Dr. Cianfrone indicated that he was providing treatment and that he had referred her to a psychologist.
73The applicant remained off work until May 7, 2012, when she submitted an email which reads in its entirety as follows:
I hereby tender my resignation from my role as Bilingual Collector at Chubb Edwards, effective May 7th 2012, due to the continued harassment of my manager Tina Tackore and several colleagues. I want to make it clear that my resignation arises explicitly due to the discrimination and harassment I faced whilst at Chubb Edwards.
74As noted earlier, prior to sending this email, the applicant had filed the Application with the Tribunal.
75The applicant testified that she started a new job on May 8, 2012. It is a similar job. She indicated that she initially worked on a full-time basis in the new job but then had to change to part-time employment. She indicated that this was because of the continuing effects of the medical issues mentioned in the application for short term disability benefits. She indicated that Dr. Cianfrone has continued to treat her and she has not yet seen a psychologist. The applicant did not provide any medical records to confirm her continuing issues or treatment.
76The applicant testified that she was forced to resign her employment because the workplace had become “poisoned”. She testified that she was not eating well and could not sleep. She frequently threw up at work due to the stress. On one occasion she was shaking badly while driving home. She stopped at a drug store and tested her blood pressure, which was very high. At that point, she saw Dr. Cianfrone who advised her to stop working. She testified that the workplace was poisoned because she was being yelled at on a daily basis about her accent and subject to unwarranted criticism about her work and her interactions with clients.
77Ms. Tackore testified that the applicant was an excellent and conscientious agent and that there were rarely complaints about her from clients. Ms. Tackore testified that she was very surprised by the Application from the applicant and by the allegations in the Application. She said that until January 2011 when the applicant was not selected for the acting supervisor position, she had never had any problems with the applicant.
Conclusions
78In my view, the evidence shows the following:
There were personality clashes between the applicant and at least two co-workers.
The applicant felt that she was being harassed and bullied by these co-workers and even physically assaulted by one of them. During her employment she never complained that any of this was racially based.
The applicant made a written complaint regarding the alleged harassment and bullying. The complaint was thoroughly investigated. The applicant’s specific allegations were not sustained but further training for all involved was mandated.
The applicant was very upset that she was not selected for the acting supervisor position in January 2011.
By April 2011, and within about two months of the unsuccessful application for the supervisor position, the applicant went on sick leave with symptoms of anxiety, diagnosed by her family doctor. She told her doctor that she was experiencing workplace stress but there is no indication that she told him that this was due to racially based discrimination or harassment.
In May 2011, she resigned her employment and started a new job with a new employer.
79To succeed, the applicant must be able to show on a balance of probabilities that her Code-protected rights were infringed. There is no evidence to corroborate any of the applicant's allegations that her Code-protected rights were infringed. Therefore, for the applicant to succeed, it would be necessary for me to accept her evidence about what she alleges occurred. To do this, I would have to find the applicant’s evidence to be reliable and credible.
80I have discussed specific aspects of the applicant’s allegations and evidence which I have found to be unreliable. In addition, I find that I cannot accept the applicant’s evidence that she experienced racially-based discrimination or harassment because the evidence shows that although she did complain of harassment during her employment, she did not allege that this was related to any Code-protected ground. The applicant’s explanation for why there is no mention of Code-related discrimination or harassment during the period of her employment is that she did not have time to mention all of the details. I find this explanation to be lacking in credibility. The October 2011 complaint is quite detailed in the allegations that are part of the complaint. The applicant is very articulate and has no difficulty expressing herself.
81For all of these reasons, I find that the applicant has not established that it is more probable than not that her Code-protected rights were infringed during the period of her employment.
Dated at Toronto, this 2nd day of July, 2013.
“Signed by”
Brian Cook
Vice-chair