HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rim Mehjazi
Applicant
-and-
Sanpaul Investments Ltd. o/a Walking on a Cloud
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Mehjazi v. Sanpaul Investments Ltd. o/a Walking on a Cloud
APPEARANCES
Rim Mehjazi, Applicant
Self-represented
Sanpaul Investments Ltd. o/a Walking on a Cloud, Respondent
Robert Bell, Counsel
BACKGROUND
1This Application alleges discrimination and harassment in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is a Muslim woman.
2The Application alleges that during the course of her employment the applicant was subjected to sexual harassment and sexual solicitation from one of her store managers, Nizamud (Sam) Din. The applicant also alleges that she was treated differently by Mr. Din and was subjected to harassment because of her race. The applicant also alleges that when she disclosed this harassment and discrimination to the Human Resource Manager, Katie O’Flanagan, that she did not properly investigate her concerns. The Application named Ms. O’Flanagan as a personal respondent. The applicant also asserts that the respondent terminated her employment because she complained about her manager and that this was a reprisal pursuant to the Code.
3In the Response the respondent denies that the applicant was subjected to harassment during the course of her employment. The respondent also asserted that it could not be held liable for the conduct of Mr. Din pursuant to the Code. This position was withdrawn during closing submissions. The respondent was of the view that it had properly handled the applicant’s internal complaint. Ultimately, the applicant was terminated because she could not meet the respondent’s expectations which culminated in an incident at a third party vendor. It asserts that the decision to terminate the applicant’s employment was unrelated to her internal complaint.
4On July 4, 2013, the Tribunal issued Interim Decision 2013 HRTO 1167 which removed Katie O’Flanagan as a personal respondent.
5The Tribunal held four days of hearing into the merits of this Application. For the reasons that follow the Application is dismissed.
The Evidence
6The applicant testified on her own behalf and she called no other witnesses. The respondent called Mr. Din and Maisia Alkassab who are both Store Managers, Gemma Manual, currently an Assistant Manager, Ms. O’Flanagan, David Vella, Vice President of Buying and his spouse Mariam Vella, who is also employed by the respondent. I will refer to each of these witnesses evidence as necessary.
7The applicant worked at various store locations for the respondent and I have determined that it is not necessary to refer to them by their municipal address. Maisa Alkassab was the Store Manager at the first store that the applicant worked (“location A”). On October 31, 2011, the applicant commenced employment at location A as a sales associate. Ms. Alkassab was very good friends with the applicant prior to her employment with the respondent. Ms. Alkassab and the applicant are no longer friends.
8The applicant and the respondent agree that Ms. Alkassab decided to terminate the applicant’s employment within a few months in mid-January 2012. The applicant was still within her probationary period at that time. However, the parties disagree regarding the reasons why Ms. Alkassab wanted to terminate the applicant’s employment. Ms. Alkassab testified that she decided to terminate the applicant for a number of reasons including that the applicant; would play music and dance on the sales floor; she would get too personal with co-workers, to the point that one of them asked not to be scheduled with her; and that the applicant was unprofessional. Ms. Alkassab testified that the applicant was very stubborn and would not listen to her directives, and routinely challenged her directives. Ms. Alkassab decided to terminate the applicant’s employment because she came in late one day. This was the final straw.
9The applicant disputes that she was not a good employee and she believes that Ms. Alkassab decided to fire her for personal reasons that were not related to her performance at work. At the time the applicant was going through a difficult marital breakdown and separation from her husband. During the hearing the applicant focussed a lot of her evidence on her performance at location A. She was clearly still upset at the hearing that Ms. Alkassab decided to end her employment. The applicant takes the position that she was an excellent employee and should not have been terminated during her probationary period. However, the applicant’s performance at location A pre-dated any allegations of Code-related harassment and discrimination and has little relevance with respect to the issues raised in the Application. What is relevant is that the parties agree that the applicant’s employment at location A was going to be terminated during her probationary period.
10Ms. Alkassab was talking to Mr. Din who is the Store Manager at another location (“location B”). When Mr. Din told her that he was looking for a new sales associate, Ms. Alkassab told him that she was terminating the applicant’s employment. Mr. Din agreed that the applicant could be transferred to location B. Mr. Din explained that he thought that perhaps through mentoring and coaching that the applicant could be successful in her employment as a sales associate.
11The applicant was employed as a sales associate at location B commencing on January 17, 2012. In her testimony the applicant stated that she had a lot of issues with respect to Mr. Din as a manager including that he was rude and unfair to the sales associates. The applicant also alleges that Mr. Din subjected her to harassment and discrimination contrary to the Code and sexual solicitation. These complaints will be detailed below in which I will review both Mr. Din’s and the applicant’s evidence.
12On March 25, 2012, the applicant sent to the respondent’s general email account an e-mail which made an official complaint against Mr. Din alleging “abuse and harassment”.
13Ms. O’Flanagan then proceeded to conduct an investigation. She first met with the applicant and asked her to further particularize the allegations in her complaint. The applicant and Ms. O’Flanagan agreed that the applicant would be transferred back to location A during the course of the investigation. The applicant was happy with this arrangement.
14However, after the applicant was transferred back to location A, a number of work related issues arose. The parties agree that Ms. Alkassab met with the applicant and discussed a number of issues raised by other employees at location A. Ms. Alkassab discussed the following issues with the applicant for which she was issued a warning:
a. That the applicant was unprofessional;
b. That on March 31, 2012, the applicant made a comment that made another employee feel uncomfortable;
c. That on March 31, 2012 the applicant left the store without announcement; and
d. That on April 3, 2012, the applicant had a verbal argument with another employee.
15The respondent tendered a letter signed by Ms. Alkassab and three other sales associates which advised Ms. O’Flanagan that they were not happy with the applicant’s attitude and that she was affecting the teamwork at the store. Ms. Alkassab testified that the applicant was very argumentative with her and told her that she was not her manager because she was on at location A on a temporary basis. Ms. Alkassab wrote on this warning that the applicant refused to sign it and told her that she was not her manager.
16The applicant disputes the legitimacy of these complaints and on April 6, 2012 she wrote an email to Ms. O’Flanagan in defence of herself. The applicant felt that she was being watched and unfairly targeted. The applicant admitted that she had made the comment to another employee after she tried on some clothes that “Wow. You look like a lady now”. The applicant also admitted that she had had words with another employee but that this was instigated by the other employee. Ms. Alkassab stated that the employee took offence because it suggested that she did not usually look attractive. The applicant testified that she had permission to leave the store from Ms. Alkassab and that she did behave professionally.
17The applicant contacted Ms. O’Flanagan to advise her that she wanted to be transferred back to location B. Ms. O’Flanagan was still in the process of conducting her investigation into the applicant’s complaint. To that end Ms. O’Flanagan decided that she would schedule a meeting between Mr. Din and the applicant to discuss the issues and to see if they would be able to work with each other. Ms. O’Flanagan told the applicant that perhaps the two of them could work together because Mr. Din was not the type of employee who would bear a grudge. The applicant was angry that Ms. O’Flanagan said this because she believed that he had no reason to bear a grudge.
18Ms. O’Flanagan, the applicant and Mr. Din met to discuss some of the issues raised in the complaint. Ms. O’Flanagan believed that there had been some misunderstandings between the parties, including that, in Canada, it was not inappropriate for a manager to buy his employee’s coffee and that Mr. Din had done this for other employees. Ms. O’Flanagan also said that they should try to be more formal and that the applicant should stop calling Mr. Din “habibi” which means “darling”. She also advised that Mr. Din had been disciplined for the sales splitting incident. During the meeting the applicant was very angry with Ms. O’Flanagan’s comments and she agrees that she lost her temper. The applicant was not happy with what was being discussed in the meeting. The applicant then asked to speak with Mr. Din alone. Ms. O’Flanagan refused because she was concerned about the applicant’s conduct and did not want to leave them alone. The meeting ended prior to Ms. O’Flanagan covering all of the points that she wanted to discuss.
19The applicant told Ms. O’Flanagan that she did not want to work at either location A or location B anymore. Ms. O’Flanagan was relieved because she did not believe that the applicant could successfully work at either of these locations.
20The applicant was then transferred to location C. There is no dispute that on her first day of work on May 7, 2012, that she asked Ms. O’Flanagan for a transfer because it was a long commute. Ms. O’Flanagan agreed.
21On May 14, 2012 the applicant was transferred to location D. Ms. O’Flanagan emailed the applicant her work schedule. On May 16, 2012 the applicant was scheduled to work from noon to 7 p.m., however, the applicant worked from 10 a.m. to 5 p.m. The applicant testified that she had misread the email and attended work early and she decided that she would work the same number of hours and leave earlier. The applicant received a written warning the next day for failing to work her scheduled shift. The applicant testified that when she received this warning she knew that the respondent was out to get her.
22The applicant worked at a third party vendor on the weekend of May 19 and 20, 2012. The applicant was responsible for selling some shoes and maintaining the sales area during the weekend.
23Mariam Vella, who is the wife of David Vella, the Vice-President of Sales, and co-owner, testified that when she arrived at the third party vendor the applicant was on her phone and ignoring customers. She stated that she had to go through all of the boxes because matching shoes were not left in the right boxes. She stated that she and her husband had to stay until 8:30 p.m. to finish cleaning up and the inventory. She stated that the applicant left between 6:30 p.m. and 6:45 p.m. because she had to go home. Mrs. Vella testified that she was very upset that night and that she sent a text at 8:34 p.m. to Ms. O’Flanagan that states in part:
That girl rim is use less the booth was the biggest mess I have ever seen it she did nothing !!!and then ran out at 6:45.
Dave could not believe she made twice as much work for me when I try to open on tues. When we came in she was standing in the corner texting ignoring the customers that were there.
24Mr. David Vella testified that when he and his wife arrived at the third party vendor on the last day of the event on May 20, 2012 the display was in disarray. He stated that both he and his wife had to work late because the applicant failed to keep the area in an orderly fashion. Mr. Vella corroborated his wife’s testimony with respect to the condition of the sales area and the applicant’s conduct.
25Mr. Vella stated that he was the one responsible for the decision to terminate the applicant’s employment. He testified that he made the decision on the night of May 20, 2012 because he and his wife were displeased with the applicant’s performance at the third-party event. He stated that he was not aware at the time that the applicant had performance issues at other locations or that she had made a complaint of harassment and discrimination against Mr. Din.
26The applicant testified that her performance at the third party vendor was excellent and that, in fact, the display was in order and organized. She stated that the Vellas came late on May 20, 2012 and that is the reason why it took so long to complete the inventory. The applicant stated that she left the third party vendor between 7:15 p.m. and 7:30 p.m. The applicant agrees however that the payroll records corroborate that she was paid only until 6:45 p.m. She had no explanation as to why she did not seek payment for the additional time worked.
27There is no dispute between the parties that the applicant asked Mr. Vella if she could call him to talk to him later in the week and that she did not provide him with any specifics about what she wanted to talk to him about. Mr. Vella told the applicant that she could call him at work during the week. However, this conversation never took place because the applicant’s employment was terminated on May 23, 2014. The termination letter is signed by Mr. Vella.
The Issues
28The Tribunal must decide the following issues raised in the Application:
a. Did the respondent commit an act of reprisal contrary to the Code when it decided to terminate the applicant’s employment?
b. Was the applicant subjected to discriminatory and/or harassing conduct and/or sexual solicitation during the course of her employment at location B by Mr. Din; and
c. Did the respondent properly address the applicant’s internal complaint that she was subjected to harassment and discrimination contrary to the Code;
The Law
29The applicant has the onus of proving on a balance of probabilities that the respondent infringed her rights under the Code. The relevant portions of the Code provide that:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment because of sex in workplaces
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
Sexual solicitation by a person in position to confer benefit, etc.
(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
Reprisals
- Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.
30In the decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraphs 33 - 34:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
31This case turns largely on my findings of the credibility and reliability of the evidence of the witnesses. In making these determinations I am mindful of the case-law in relation to the factors and approach to assessing credibility including Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal which stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
32I also considered the factors identified by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.
Findings
Was the Termination of the applicant’s employment a reprisal contrary to the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
33The applicant asserts that the respondent terminated her employment because she made a complaint that her rights were infringed under the Code. In this case the issue is whether the applicant has established on a balance of probabilities that her termination from employment is related to her attempt to enforce her rights under the Code and that the respondent intended to retaliate against her. Having considered the evidence I find that the applicant has not met this burden.
34The Tribunal heard the testimony of multiple employees who confirmed that the applicant had some work related issues. I accept that Ms. Alkassab had identified some of these issues during the applicant’s probationary period and that she had decided to terminate the applicant’s employment. Putting aside the events at location B involving the manager, Mr. Din, the applicant had work related issues at two of the other locations that she worked at (excluding location C). There is documentary evidence that corroborate and that support that these issues were occurring including two written warnings and Mrs. Vella’s text message on May 20, 2012 with respect to the events that occurred at the third party vendor.
35The applicant has failed to acknowledge any fault. For example, when the applicant did not work the appropriate shift on her first week of work at location D, the applicant could not understand why this was cause for any discipline. Though she admits that she was responsible for misreading her schedule and then rearranging her own shift without permission. The applicant does not believe that this is cause for any discipline and feels that she has been unfairly targeted.
36However, I find that if the respondent wanted to terminate the applicant’s employment it could have told the applicant, when she advised that location C was too far for her to travel, that it had no other available locations. Instead, she was transferred to Location D at her request. These multiple transfers, including assigning the applicant work at the third-party vendor are objective evidence of the respondent’s efforts to salvage the employment relationship as opposed to an intention to retaliate against the applicant for attempting to enforce her rights under the Code.
37Further, the events at the third-party vendor were observed by individuals who were not originally involved in the applicant’s complaint and subsequent investigation by the respondent. Though the applicant asserts that this was a ”set-up” to terminate her, I do not accept that Mrs. Vella would have fabricated a contemporaneous email on May 20, 2012, to justify the applicant’s termination from employment. Rather, I accept that the email correspondence reflected an accurate representation of the applicant’s work at the third party vendor.
38In these circumstances, I am satisfied that the evidence supports that the applicant’s employment was not terminated as a reprisal for her attempt to enforce her Code rights. This allegation is therefore dismissed.
Harassment and Discrimination
39The next issue is whether the applicant can establish on a balance of probabilities that she was subjected to harassment and discrimination during the course of her employment. The allegations of harassment and discrimination purportedly took place when the applicant worked at Location B. There is conflicting testimony on these events. In addition to the evidence of Mr. Din and the applicant, the Tribunal also heard the evidence of another sales associate, Ms. Manuel, which provides some insight into the working relationship between the applicant and Mr. Din.
Mr. Din
40I make the following observations with respect to the evidence of Mr. Din. At the time of his testimony Mr. Din was 66 years old. He suffers from diabetes, has nerve damage on both his hands and feet and has had his left kidney removed. Mr. Din was on numerous medications at the time of his testimony for a number of ailments, including diabetes, blood pressure and depression. He also stated that this causes him difficulty in concentrating and he has problems with the right side of his body.
41There was an issue during the hearing because Mr. Din became confused during his testimony and the Tribunal took a break during which he was given some food and drink. However, when the Tribunal reconvened Mr. Din continued to have difficulty recalling certain facts, including the date that he became an assistant manager for the respondent, and the names of his parents (though he did eventually remember these names, it took quite some time). The Tribunal took another break so that counsel could speak with his witness to determine if an adjournment was necessary. Counsel then advised that he was not seeking an adjournment and Mr. Din continued his evidence. Though Mr. Din demonstrated an inability to recall distant events, he appeared able to recall more recent events, including those that gave rise to this Application.
42Mr. Din denies that he harassed or discriminated against the applicant contrary to the Code. Mr. Din admits that he touched employees to get their attention. He recalls that he touched the applicant once and that when the applicant objected he never touched her again with his hand. This is contrary to the evidence of Ms. Manual. She stated that Mr. Din touched employees all the time to get their attention. Mr. Din denies ever touching the applicant on the breast or on the buttocks.
43He testified that he would joke around at the store to create an environment conducive to selling and he would comment on the applicant’s smile. He said it was important to smile in the store. He admits to singing in the store and that he loves to sing and that he sings a variety of songs in various languages.
44Mr. Din testified that one week before the applicant’s transfer there was an issue at the store because he believed that the applicant had stolen one of his sales. The day before her complaint, on March 23, 2012, he had a fight with the applicant over a broken fax machine. He also believes that the applicant was angry because he advised at a staff meeting that no one would be promoted to the position of sales associate and that employees had to stop using their cell phones at work.
Ms. Manuel
45Ms. Manuel was a sales associate at location B and she was a good friend of the applicant’s after she started working at the store. Ms. Manual testified that she never witnessed anything inappropriate at the store. She testified that she, the applicant and Mr. Din would have light hearted fun at the store. She stated that while Mr. Din would sing in the store, the songs were not of a sexual nature. She also testified that while the applicant did complain about Mr. Din she never complained to her that he was sexually harassing her in any manner. The applicant complained to her that Mr. Din was cranky and strict. Ms. Manuel stated that he was like this with all of the employees. Ms. Manual also confirmed that Mr. Din was considering making her or the applicant assistant manager at the store.
46Ms. Manuel testified that the applicant would use the word ‘habibi” in the workplace and that she called everyone that, including Mr. Din. Further, she was aware that the applicant and Mr. Din once had an arm wrestling match in the back room. She stated that though she did not witness the applicant dancing on the sales floor she would swing her legs back and forth while holding herself on the desk. She also did demonstrate a belly dance in the back room to the employees, including Mr. Din.
47She testified that around March 22, 2012, the applicant told her she had a fight with Mr. Din. He accused the applicant of stealing one of his sales and that thereafter the applicant and Mr. Din did not get along.
48Ms. Manuel was also present at the staff meeting on March 24, 2012. She confirmed that during this meeting that Mr. Din announced that he was not going to make anyone assistant manager at the store. Mr. Din also announced that someone had broken the fax machine at the store and he asked which of the employees was responsible. Ms. Manuel stated that he was not singling out any employee. However, the applicant was talking back to Mr. Din and they had a verbal fight. Ms. Manuel testified that she felt somewhat responsible for causing the fight that ensued between the applicant and Mr. Din because when Ms. Manual responded that she had not broken the fax machine she believes that Mr. Din interpreted this as meaning that the applicant had broken the fax machine. Ms. Manuel stated that employees became so awkward during the fight that they had to leave.
The applicant’s evidence
49I make these general observations about the applicant’s demeanor and conduct during the course of the hearing. On the first day of hearing the applicant did not bring with her any documents or pleadings. When I asked whether she needed a copy of her Application she refused and she told me that she knew all of the allegations in the Application by heart because they were the truth. She wanted me to know that she was testifying without the assistance of her Application and that she was telling the truth.
50During the course of the applicant’s evidence in chief it was difficult to keep the applicant focused on the issues which related to the Code. The applicant focused her testimony on numerous work related issues. I constantly had to redirect the applicant to focus her testimony on Code-related issues. The applicant focussed her testimony with respect to the events that occurred at location A and her interactions with Ms. Alkassab. When the applicant did testify about harassment at location B, her testimony was general in nature, with no specific dates or events.
51During cross-examination the applicant acknowledged that she had an incident at work with respect to Mr. Din asserting that she had stolen one of his sales in mid-March. The applicant acknowledges that it was Mr. Din’s turn to serve a client. However, she believes that he was not going to get the sale, so when he went in the backroom she developed a rapport with the client and made the sale. Mr. Din was very upset by this and warned the applicant that she could not take his sales. Eventually, the sale was split in some fashion between both Mr. Din and the applicant. Though there is some dispute in the evidence as to whether the client was leaving the store or Mr. Din was still serving the client, this is irrelevant. What is relevant is that the parties agree that there were rules concerning the protocol of assisting clients and against sales splitting. The applicant believes that she was unfairly treated by Mr. Din with respect to this issue.
52The applicant then acknowledged that there was a meeting on March 24, 2012, during which all of the employees at Location B were advised that there would be no assistant manager. She states that Mr. Din accused her of breaking the fax machine the day before and that he yelled at her and was rude. The applicant denied that she yelled back at Mr. Din during this meeting. However, I prefer the evidence of Mr. Din and Ms. Manuel that the applicant yelled back at Mr. Din at this meeting. Not only do they corroborate each other’s evidence but this is consistent with the applicant’s attitude of challenging her supervisors.
53The applicant states that she went to Ms. Alkassab’s house on the evening of March 24, 2012 who told her that the conduct of Mr. Din was unacceptable and she should file a complaint with human resources. Ms. Alkassab denied that she told the applicant to file a complaint or that they met that night. Once again the applicant was very upset about this particular denial. The applicant feels that Ms. Alkassab set her up with human resources. However, it remains that there is very little relevance as to whether or not Ms. Alkassab told the applicant to file a complaint because such a recommendation would have been based solely on the applicant’s version of events. There is no suggestion by either party that Ms. Alkassab witnessed any of the alleged harassment and discrimination.
54On March 25, 2012 the applicant sent an email to the general company email in which she lodged an official complaint alleging “abuse and harassment”. The email states in part:
I started in this store in jan.17/2012 and Sam (the manager) was dealing with me normal like any other employee, (rude, insulting us in front of customers, blame us for his mistakes….)
But when he knew about my separation problem and when I asked him for extra hours because I need to support my kids and I don’t want to be on welfare, he promise me enough hours and he said the store need me because I am a hard worker and I learn very fast…till now everything was ok (I don’t care how he is dealing with me I just need enough money to support my kids)
He started making comments about my smile, then he said he like my personality, ok??? Now he likes me and he started to ask me to date him…he offer me coffee and dinner and I said no,
He offer me to have a long break I said no, vacation if I want even when I said I’m not allowed to have one yet because I’m new he said: don’t’ worry I will take care of that.
He ignores all company policies, he wants me to sit down to listen to his love songs, and his stories and if I excuse him because I want to finish my work he said don’t worry the work will never finish.
He try to touch me by any chance even when I told him to please this is discomfort me and his touch not welcome he said : he can’t help it, I was wondering what to do to make him stop he doesn’t even leave me alone on my break, I can’t work or concentrate any more, all what I was thinking of how to avoid him or how can I make him stop without make him angry, my fear was what if he fire me and I can’t afford to stay one day without job and he knows that?
How can I ask for help specially he always say: ‘the head office trust me a lot, and whatever I want they listen to me”
I hate to go to work, I’m not sure any more how far he’s going to go! He wants me close to him when he talk to me or when we doing any work and he doesn’t to move from my way if I need to grab shoes or anything.
He told me dirty jock and gesture about sex object, but, I was avaiding any response I don’t want him to continue, he even brought his friends and he said he’s looking for a wife even I asked him not to let anyone knows about my status?
Last week I made sure that no chance with me at all….so next day he became worth than before??
Angry for any reason and for no reason, yelling at me in front of customers in very impressing way, send me to the stock room to work and not giving me a chance to make sales, and he’s not allowing me to talk to any customers even when I told him this sales is for the store, he answer ‘I don’t care about the store, don’t try to make sales if it was my customer” most of the time he give me a hard time if I make sales and force me (and all of us) to share our sales with him “I have to prove to the head office that I’m working”
Whenever he make a mistake he send a note to the head office blame the associate for the error
He’s never wrong
He forgot a lot and he gets angry for work we already finish but he forgot about
When he wants us to listen to his old same stories he doesn’t care if we finish our work or not and when we excuse him to leave to finish, he get angry
He try to destroy the relationship between the employees coz he believe the store is not going to make money if we work as a team
55The email was eventually forwarded to Ms. O’Flanagan who immediately tried to call the applicant but could not reach her. Ms. O’Flanagan sent an email to the applicant trying to reach her and the applicant responded by email saying that she had a new telephone number.
56On March 27, 2012, Ms. O’Flanagan met with the applicant and asked her to provide as much detail as possible including times, dates and witnesses. Later in the day the applicant forwarded Ms. O’Flanagan the following particulars of her allegations:
16-17 Feb/12 he knew about my personal problem and he promised me to help me by giving me enough hours special when I told him I’m available Mon to To Sun 9 to 9;
Last week of Feb 12
He started saying thank you for the first time
He start to notice how fast I’m
How much productive, mature and responsible
Then he start to offer me a coffee and he always complain if I paid for him in return
A lot of good comments about my loyalty to the store and how much he appreciate my hard work.
Now he likes my smile, and I’m pretty, funny, smart…and he likes everything about me…
He try to touch me every time he has a chance, he wants to be close when he talk to me
I used to explain to him that I don’t welcome the way he deal with me and politely asking him to stop …but he didn’t
19 Mar/12 he stop been nice to me and start to act the opposite way:rude, yelling for no reason, insulting me in public ….and you know the rest
57The applicant goes on to apologize that she does not have accurate dates but that because these events occurred during such a short period of time it will be easy for everyone to remember.
58With respect to the harassment I asked the applicant a number of times during her evidence where on her body her manager had allegedly touched her. The applicant showed me that her manager touched her on her lower back and on her upper arm. I asked the applicant why she believed that this touching was sexual in nature. She responded that since she had asked the manager to stop touching her that he meant this to be harassment to bother her. The applicant was vigorously cross-examined on this issue by counsel for the respondent and provided the same answers.
59Near the end of the applicant’s cross-examination I asked the applicant if Mr. Din had touched her on the face or head, to which she responded no. I then asked the applicant if Mr. Din had touched her breast. The applicant testified that Mr. Din had one day reached out and grabbed her breast with his hand while they were in the backroom. The applicant also stated at this point that Mr. Din had touched her buttocks. The applicant did not provide any particulars of when this occurred.
60When I asked the applicant why she had not stated this earlier in her testimony especially since she had been repeatedly asked to describe where on her body she had been touched and why she believed Mr. Din’s touching was sexual in nature, the applicant gave me two responses. The first was that she believed that what she had testified to was sufficient enough to establish sexual harassment and that she did not have to describe everything and secondly she was shy.
61There is no dispute that the applicant did not disclose to the respondent at any point during her employment that Mr. Din had touched her breast or her buttocks. The first mention of this event is in her Application in which she states: “His touch now more and more my head, my face, my breast by any chance my behind, each time he has a chance to reach me specially when I was working in the backroom.” The applicant during her testimony contradicted this statement when she said quite adamantly denied that Mr. Din had never touched her head and face.
62I find that the applicant’s credibility is significantly negatively impacted by the fact that she failed to disclose the most significant allegations of sexual harassment during the course of the respondent’s investigation. The March 25, 2012 email contains some very strong accusations against Mr. Din and the applicant is taking issue with a number of his behaviours at work. When she was specifically asked for particulars from Ms. O’Flanagan the applicant failed to identify the most egregious allegations of sexual misconduct.
63Not only was it never disclosed during the course of the investigation, there are absolutely no particulars described in her Application explaining when and how this occurred. The applicant’s credibility is further negatively impacted by the fact that she did not give evidence of this during her examination in chief and her cross-examination.
64Further, I do not find it probable in light of the testimony that I heard that the applicant would have continued to work with Mr. Din if he had engaged in this type of conduct. The applicant admits that she would challenge all of her managers if she did not agree with them. Had these incidents of touching occurred then I believe that it is more probable than not that the applicant would have immediately complained to management. I also cannot accept that she would have been willing to return to location B without a resolution of this issue.
65I find based on the applicant’s own evidence and conduct that she is a very strong willed person and doesn’t have a problem speaking her mind. I accept that the applicant would challenge the authority of both Ms. Alkassab and Mr. Din. This is also confirmed by the testimony of Ms. Manuel that the applicant would have words with Mr. Din and even had a fight with him on March 24, 2012. The applicant was an employee who was not frightened to challenge her manager if she believed that she was being unfairly treated.
66Having considered the evidence of the applicant, as described above and in light of the fact that she gave evidence which is inconsistent with the statements in her Application on the essential elements of the allegation of sexual harassment, I find that she has not been credible. As such, I do not accept her testimony that Mr. Din harassed and/or discriminated against her on any if the grounds that she alleges. Therefore, the applicant has not proven on the balance of probabilities that she has been harassed and/or discriminated against or that Mr. Din solicited her in a sexual manner.
Company Response
67It is not the role of the Tribunal to review every aspect of the respondent’s response to the applicant’s internal complaint. Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 discusses the obligation of an employer to adequately address and respond to allegations of Code-related discrimination and harassment in the workplace. In this case the Tribunal must determine whether the respondent engaged in a response which adequately responded to the applicant’s allegations.
68Having heard the evidence of the parties, I find that the respondent adequately responded to the applicant’s internal complaint. It interviewed a number of witnesses, the applicant was promptly transferred out of the workplace at her request and the respondent attempted to mediate her complaint against Mr. Din. I am satisfied that these responses on a whole more than adequately responded to the applicant’s allegations.
69Therefore, I find that the applicant has not established that the respondent did not adequately respond to her internal complaint.
Order
70The Application is dismissed.
Dated at Toronto, this 31st day of July, 2014.
“signed by”
Geneviève Debané
Vice-chair