Chantel Armstrong v. Royal Host Limited Partnership, 2014 HRTO 1839

Human Rights Tribunal of Ontario

B E T W E E N:

Chantel Armstrong Applicant

-and-

Royal Host Limited Partnership, by its General Partner, Royal Host Gp Inc., c.o.b. as Travelodge Ottawa Hotel and Conference Centre Respondent

DECISION

Adjudicator: Paul Aterman
Date: December 30, 2014
Citation: 2014 HRTO 1839
Indexed as: Armstrong v. Royal Host Limited Partnership

APPEARANCES

Chantel Armstrong, Applicant Mitchell Rowe, Counsel

Royal Host Limited Partnership, by its General Partner, Royal Host Gp Inc., Respondent Katherine Ford, Counsel

Introduction

1The applicant in this Application worked at the front desk of a hotel run by the respondent. Her job was to make reservations, check guests in and out of the hotel and process payments.

2There is a swimming pool at the hotel and the respondent employs lifeguards. The applicant alleges that she had a relationship with one of the lifeguards, Austin Tokrud, (whom I will refer to as “the lifeguard”) that started off as friendly. Over time she says it changed to one where his attention to her became unwelcome and harassing, and included kissing her against her will. She alleges that she made this known to the respondent and it did nothing to stop it. Eventually she felt she could no longer work there and left her job. She also brought this Application, alleging discrimination with respect to employment because of sex and sexual solicitation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The respondent denies discrimination. It says that the relationship between the applicant and the lifeguard was consensual and that the applicant did not complain about being harassed. In fact, it maintains that both employees were told that their behaviour was inappropriate in the workplace and that the applicant left her employment for reasons that had nothing to do with the relationship or how it handled this issue.

4I find that there was no discrimination in this case. The reasons below explain why.

The Issues in this Case

5The Code (s.5) prohibits discrimination in employment because of sex:

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.

6It also prohibits sexual harassment in the workplace by one employee of another (s.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.

7Harassment is defined (s.10(1)) as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.

8Under the Code there is a general rule that an employer is responsible for acts done by an employee, whether the employer was aware of the act at the time or not (s.46.3(1)). However, there is an exception to this rule in the case of harassment by one employee of another, as a result of ss.5(2) and 7 of the Code. In such cases the statutory provision that would ordinarily make an employer liable for the actions of its employee does not apply and the employer is not liable unless it was aware of the harassment, but did nothing about it.

9The issues in this Application are the following:

• Was the applicant sexually harassed by the lifeguard?
• If so, was the respondent made aware of the harassment?
• If so, did the respondent act to put an end to it?

10This Application was heard over the course of three days in July and October of 2014. There is some documentary evidence, but not much. For the most part the documents serve to corroborate what was said in oral testimony. The Application is largely about which witnesses were credible in their testimony or not.

11Generally the Tribunal relies on the approach to assessing credibility that is set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

12The Tribunal has also noted that the following are factors in assessing credibility: 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. See Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

13The applicant’s case rests on her version of the following six events:

1. She raised the issue of harassment with the respondent at a meeting on June 1, 2012;
2. She raised it again at a meeting in early July, 2012;
3. She raised it a third time at a meeting on August 21, 2012;
4. She complained of the harassment to her union representative in telephone calls on August 24 and 28, 2012;
5. The indifference of the respondent and the union caused her to attempt take her own life in September of 2012; and
6. She filed a complaint with the Ministry of Labour in September of 2012 that the respondent was ignoring her complaints of harassment.

14The credibility findings in relation to each of these events are set out in detail below. However, it is useful to make some broader statements about the credibility of the applicant’s position. I have no doubt that the applicant went through a truly traumatic experience in this period. This was a very difficult time in her life. Either it was due to harassment by the lifeguard and the respondent’s refusal to do anything about it, or it was due to a consensual relationship with the lifeguard that caused a split between the applicant and her boyfriend.

15The applicant’s position is that it was the former.

16In broad terms there are three reasons why I do not accept the applicant’s position. First, the applicant’s version depends on there having been systematic collusion between the respondent and the union in ignoring the applicant’s complaints of harassment, and that this collusion at one point extended to a trusted friend and co-worker of the applicant. The union has no direct interest in the outcome of this Application. The evidence from the union representative does not support, and indeed, contradicts the applicant’s position on whether she complained of harassment.

17Second, the applicant’s testimony was supported by that of her mother and sister. However, their evidence was based largely, although not wholly, on what the applicant told them, rather than on observations of their own. There were co-workers whom the applicant claims directly observed harassment by the lifeguard, yet she did not call them to give evidence. I do not mean to suggest by this that a witness’ story can only be believed if it is corroborated, but in this instance it is the applicant who indicated that there were other witnesses who could support what she claimed occurred, yet she did not call them.

18Third, in the only instance when it is undisputed that the respondent was advised that the applicant complained of harassment, the applicant was invited by the respondent to come forward and provide her story yet she refused to do so. This unwillingness to participate in an investigation that the applicant effectively commenced is unexplained by her. This lack of explanation, when assessed with the totality of the evidence in this case, undermines the applicant’s credibility in relation to her allegation that she repeatedly complained of harassment to the respondent.

Context

19The following are uncontested facts that provide context for the allegations.

20As a business that operates around the clock, the respondent’s hotel schedules its employees in shifts. The workplace is unionised and employees with greater seniority usually work the more desirable daytime shifts. Managers at the hotel usually work during the day. At night there is a manager, called a night auditor, who is present.

21The applicant started to work for the respondent on August 31, 2011. She says the harassment began in the spring of 2012 and continued through to September of 2012. The applicant had accumulated little seniority by that time and often worked a shift from 3 p.m. - 11 p.m. at the front desk. The front desk manager, Belay Kifle, who was the applicant’s supervisor, usually worked from 7 a.m. - 4 p.m.

22The lifeguard worked an irregular pattern of shifts. He began working at the hotel in September of 2011. At the time of these events he was going to high school, and then to college. As a result his shifts were scheduled around his classes, and he worked a maximum of 26 hours per week at any time between 9 a.m. and 10 p.m.

23The key to the pool area is kept at the front desk and when the pool is to be opened the lifeguard on duty goes to the front desk to sign out the key and then open the pool. The key is signed back in when the pool is closed.

24Hotel staff, including the lifeguards, would at times hang around the front desk and chat with each other. It is not employee behaviour that management approved of because it does not leave guests with a good impression. Besides, the employees are supposed to be working. Whenever he saw this, the front desk manager would tell the staff to move on and get back to their work. Some front desk staff would also complain to management about employees chatting because it was a distraction from their work. Nonetheless it would happen.

25The respondent’s practice when it meets with an employee to discuss performance issues that could later lead to some form of discipline is to have the union representative for the local present at the meeting. In other words, the union representative is not only present for formal disciplinary meetings, but also ones which involve counselling or some form of warning that is not documented.

The Allegations

26In this section I outline how the applicant says the lifeguard behaved toward her and the six specific instances which she says support her allegations of discrimination.

27The applicant’s evidence is that she began to be familiar with the lifeguard when he would come to sign out or check in the pool key. Their interaction was limited as they would simply say “hello” to each other and she would carry on with her work at the front desk. This changed in the spring of 2012, when the lifeguard would ask her personal questions, such as what she had done on the previous weekend or what her plans for the next one were. At times the lifeguard would show up at the front desk when he had no reason to be there.

28The comments from the lifeguard became more personal – he would make remarks about her appearance and lean over the swing door at the side of the front desk and ask for a hug. The applicant denies having made any reciprocating comments to the lifeguard. She says that she tried to ignore him, but without being confrontational. She would tell him she had to work and ask him if he should not be at the pool. He would laugh off her replies. She found his comments annoying and she felt she was being harassed.

29She says that two other front desk agents, Charles and Oliver, repeatedly witnessed the lifeguard’s behaviour toward her.

30The lifeguard does not deny having made such comments, but says that the applicant made similar ones to him. He says that they flirted with each other and exchanged comments like: “Hey, looking good today!” There was some physical interaction in that they would hug at times, such as when the applicant told him that she was having problems with her boyfriend.

31His evidence is that they would try to coordinate their breaks. The applicant, who smokes, would go for a cigarette outside the hotel and he would go with her, although he does not smoke. They talked about what was going on in their lives, including their social lives.

32The lifeguard says that on two occasions he drove her home at the end of a late shift because her boyfriend, who usually picked her up, did not want to come get her. They kissed on both occasions. The applicant denies that he ever drove her home.

33The lifeguard did hang around the front desk. He says that if the applicant had ever told him to go away, he would have done so, but she never did.

34The respondent called a co-worker of the applicant, Cendrine Mervellet, to give evidence. Ms. Mervellet is a front desk agent at the hotel and was a friend of the applicant at the time of these events. They would confide in each other and socialised occasionally outside of work.

35Cendrine Mervellet would sometimes work the same shift as the applicant. Her evidence is that the relationship between the applicant and the lifeguard was consensual. They would take their breaks together. The lifeguard would hang around the front desk to talk to the applicant. Other lifeguards would socialise at the front desk as well. Ms. Mervellet found the presence of employees at the front desk to be a distraction and she complained to management about it. She did not complain about the lifeguard specifically, but about the practice generally.

36When the lifeguard was hanging around the front desk there was nothing inappropriate about the content of his conversations with the applicant. Ms. Mervellet says that this is because they were within earshot of other employees and guests.

37Ms. Mervellet found some aspects of their behaviour inappropriate for the workplace. She says that they would go into the office behind the front desk and hug and kiss. When in the back office they were not visible to guests. This happened on several occasions, but she could not recall exactly when.

38Although their behaviour made her uncomfortable, she did not complain to management about it because she was friendly with the applicant and it did not affect her work. The applicant never indicated to Ms. Mervellet that the lifeguard’s attention to her was unwelcome.

1. The applicant meets with management on June 1, 2012

39On June 1, 2012, the applicant was called to a meeting with Mr. Kifle. The union representative, Gloria Borts, and the respondent’s human resources manager (“the HR manager”), Daniella Girolamo, were also present. The purpose of the meeting was to discuss a cash discrepancy that the applicant was responsible for in running the till at the front desk on one of her shifts. The meeting is documented in notes taken by the HR manager and it resulted in the applicant receiving a written warning for failing to follow the respondent’s procedures.

40After the issue of the cash discrepancy was discussed, there was then a discussion of the applicant’s relationship with the lifeguard. Ms. Girolamo asked Mr. Kifle to leave at this point, so he was not a witness to this conversation.

41Ms. Girolamo’s evidence is that she did not take notes of this discussion because it was not intended as disciplinary in nature. There had been a complaint from a front desk agent that the socialising between the lifeguard and the applicant at the front desk was a distraction. The complainant (who was not identified) also complained that they were socialising in the back office.

42The evidence of Ms. Girolamo is that the applicant did not deny that she was friendly with the lifeguard. The applicant told the meeting that they would often order pizza together and that the lifeguard would wait at the front desk for her shift to end so that he could drive her home. The applicant never stated that his behaviour was unwelcome and made it quite clear that they were friends.

43The HR manager says that she and Gloria Borts also went to the pool on that day to talk to the lifeguard about this issue. The lifeguard told her that he and the applicant were friends and that their relationship was consensual. He agreed not to hang around the front desk unless it was for a work-related purpose.

44The lifeguard recalls that before the HR manager and union representative met with him, his own supervisor (Stephane Litchy) had told him there had been a complaint about the lifeguard hanging around the front desk to see the applicant. Mr. Litchy said that the complaint was also about their behaviour in the back office. The lifeguard denied ever having kissed the applicant in the back office.

45The applicant’s evidence is that after the discussion of the cash discrepancy she was told there had been a complaint about her workplace conduct with the lifeguard. She told the meeting that she and the lifeguard were “work friends”, that they would sometimes order pizza with the other lifeguards and that there was nothing going on between them. She asked Ms. Girolamo if the lifeguard would also be spoken to. The applicant felt that in making this request she was explaining to Ms. Girolamo that the lifeguard was harassing her because he would always come to see her at the front desk, as opposed to her going to the pool to talk to him. She denied having told the meeting that the lifeguard would ever drive her home.

46Gloria Borts recalled the discussion with the applicant about the cash discrepancy. Her notes are limited to that discussion. She had no recollection of the second part of the meeting which discussed the relationship between the applicant and the lifeguard. She also had no independent recollection of the meeting that she and the HR manager had with the lifeguard on the same subject. However, her notes of the meeting with the lifeguard indicate the following:

• Concerns –FD
• Stephane [the lifeguard’s manager] spoke to him
• Discomfort
• Excessive @ x

47She testified that “FD” refers to the front desk and that concerns had been raised about behaviour involving the lifeguard at the front desk. She thought that “discomfort” referred not to the applicant’s discomfort but to that of the complainant who had raised the issue. In cross-examination she said she could not rule out the possibility that “discomfort” also included discomfort on the part of the applicant. The entry: “excessive @ x” means “excessive at times”.

48I conclude that in the meeting between the applicant, the HR manager and union representative it is more likely than not that the applicant did not complain about being harassed by the lifeguard. The applicant’s own evidence about this meeting is at best equivocal, because she starts off by telling the meeting that their relationship is consensual and later indicates that she thought that she was communicating that the lifeguard’s presence was unwelcome solely based on the fact that he would seek her out at the front desk, as opposed to her going to the pool. In my view her statement about where the encounters took place cannot be seen as a clear, or even an oblique, communication to the respondent that she was being harassed.

49In addition, if there had been any suggestion of harassment I would have expected this to be reflected in a note by Ms. Borts as the union’s representative. There is an inconsistency insofar as Ms. Borts made a note of the conversation with the lifeguard but not of the one with the applicant regarding the relationship. However, it is clear from Ms. Borts’ other notes that were in evidence (as well as from later attempts to schedule meetings with the applicant which are discussed below), that the union is normally present when issues that have or may have disciplinary consequences are raised.

50There is no question that the union representative was present for the meeting with the applicant, because there are notes of the discussion regarding the cash discrepancy. Had the applicant raised a concern at that time about being harassed, I would have expected a note to have been taken by Ms. Borts. The union has no direct interest in the outcome of this Application. She testified that it was her practice to take notes whenever there was a potential for a union member to face discipline, and that this included any allegation of member-on-member sexual harassment. Her evidence on this point was not challenged and it accords with what I would expect a union representative to normally do in similar circumstances.

51Furthermore, in her evidence Ms. Girolamo showed a sound understanding of the terms of the collective agreement, the legislation governing workplace violence and harassment and the respondent’s own policies. In my view she understood the potential liability the respondent might face as an employer if it ignored a complaint of harassment. While Ms. Girolamo may have an interest in justifying her conduct after the fact, at the time of this hearing she had left the respondent’s employment and in that sense is not motivated to protect the respondent from the truth.

52Finally, although the applicant claimed that the two other front desk agents, Oliver and Charles, often witnessed the lifeguard’s inappropriate comments and advances at the front desk, she did not tell this to the meeting participants and neither employee was called by her as a witness at the hearing. The only witness to interactions between the applicant and the lifeguard was Cendrine Mervellet. Her evidence is that she did not hear the lifeguard making inappropriate comments to the applicant at the front desk, because this would have been in earshot of other employees and hotel guests. She said that the behaviour she considered inappropriate took place in the back office. This explanation is consistent with what I would expect in that, if the lifeguard were to make inappropriate comments or advances, they would not likely be made in plain view of hotel guests.

53For these reasons I determine that the applicant has not shown that she complained of being harassed at the June 1, 2012 meeting.

2. The meeting in late June or early July 2012

54The applicant maintains that after the June 1 meeting the lifeguard’s behaviour did not change. He continued to harass her at the front desk. She states that he would do this in the presence of hotel guests and that she would tell him to leave as she was serving a customer. The applicant says that he would ask her questions about her relationship with her boyfriend. On one occasion he suggested that she get out of that relationship and she snapped at him, telling him that she loved her boyfriend. He told her she was cute when she got angry.

55Because the lifeguard’s comments were continuing, she told Mr. Kifle, her supervisor. She says he told her not to worry and that he would talk to the HR manager about it. She states that around the same time she also told Cendrine Mervellet that the lifeguard was still harassing her.

56The applicant testified there was a second meeting, around the beginning of July, that again had to do with her handling of cash. Again the applicant, the front desk manager, the HR manager and the union representative were present. The applicant stated that at this meeting she asked for additional training and says that this was recorded on the disciplinary action form, which she signed but has not seen since.

57The applicant says that she received training from the respondent’s bookkeeper around the time of Canada Day.

58The applicant says that after discussion of the cash procedures ended, she then raised the issue of the lifeguard’s behaviour. She told the meeting that she had complained to Mr. Kifle and made it clear that she wanted the lifeguard’s behaviour to stop. Ms. Girolamo told her that the lifeguard would be spoken to. The applicant left the meeting thinking that the harassment would now end.

59No other witnesses agree that a meeting took place at the end of June or beginning of July.

60Mr. Kifle could not recall a meeting in late June or early July. However, I place no weight on his evidence because he was generally lacking in credibility. Throughout his evidence he seemed to me to be worried about saying the wrong thing, with the result that he defaulted to saying that he could not remember. Despite being the applicant’s immediate supervisor, he was the only witness who denied any knowledge of interaction – consensual or not – between the applicant and the lifeguard. Further, although both parties accepted that another one of Mr. Kifle’s direct reports, a front desk agent, had complained about the interaction between the applicant and the lifeguard, he denied any knowledge of this as well.

61He stated that as a manager he had never had to deal with issues of conflict between staff. I find this difficult to believe, given that he had been working as the front desk manager for a number of years. Although his evidence favoured the respondent’s position, in that he denied that the applicant ever complained to him about being harassed, the generally unreliable and equivocal nature of his testimony leads me to give no weight to what he had to say about the events.

62Ms. Girolamo had no recollection of a meeting in late June or early July regarding a cash discrepancy. There was no documentation relating to it, and there would have been if a meeting had taken place because the applicant’s handling of cash had already been documented twice. It had been the subject of a written warning on June 1, and an earlier verbal warning on December 21, 2011, that had been documented as well. According to Ms. Girolamo, it would have made no sense to have documented two of the meetings, but not a third one, if they all had to do with the same performance problem. I accept this explanation, as this scenario would be inconsistent with the concept and practice of progressive discipline in a unionised workplace.

63Further, Ms. Girolamo states that when Stephane, the lifeguard’s supervisor, came to see her on August 20 to discuss a concern he had about the risk of violence between the applicant’s boyfriend and the lifeguard, this came as a complete surprise to her. This is because she believed that her June 1 meeting with the lifeguard had put an end to the workplace encounters between the applicant and the lifeguard. If there had been an intervening meeting around the end of June or early July where the applicant had complained of harassment, then she would not have been as surprised as she was when she was approached by Stephane on August 20.

64The union representative had no recollection of a meeting at the end of June or early July, nor are there any notes to that effect.

65There is insufficient reliable evidence for me to find that this meeting took place as alleged by the applicant. This is largely because what the applicant said happened at the late June/early July meeting in fact appears to have taken place and been documented at the June 1 meeting. The disciplinary action form of June 1 states that the corrective action to be taken consists of a written warning and “corrective training with department supervisor”. Ms. Borts’ notes of the June 1 meeting read:

• Training
• Written warning – OK

66The applicant signed and dated the form. It does not make sense to me that the substance of the June 1 meeting (which is documented and signed by the applicant) would have been repeated, as the applicant claims, a month later. If, as the applicant maintains, she signed a disciplinary action form, then I would expect the union representative to have notes to that effect and I would expect the respondent to have the form itself.

67The absence of any documentation at all from either the respondent or the union relating to a meeting in late June/early July, combined with the fact that neither the HR manager nor the union accept that a meeting took place, lead me to conclude that it is more likely than not that no such meeting happened. Given the applicant’s account of what happened in the meeting she says took place in late June/early July, and its similarity with the content of the June 1 meeting, I conclude that the applicant is confusing what she says happened at the second meeting with what actually happened at the first meeting.

3. The parking lot incident and the August 21, 2012 meeting with management

68The applicant stated that in the later part of July she was taking a cigarette break in the parking lot at the back of the hotel. The lifeguard came out and began asking her questions about her boyfriend. He reached out and grabbed her around her waist with both hands. He said that he could treat her better if he were her boyfriend. He kissed her on the lips against her will and she pushed him off. She says that this was witnessed by Stephane Litchy, who shouted his encouragement at the lifeguard’s actions.

69The applicant was shocked and angered. She told her sister and her mother about it. She also sent a text message to her co-worker recounting what happened. Her sister told her to keep a diary of what was happening to her at work, and she testified that she began to keep a diary the next day. In cross-examination she explained that her mother bought the diary for her in early August.

70The applicant’s mother testified that she bought the diary for her daughter in December of 2012, as a Christmas present. She initially said this with conviction, but when shown that the diary starts in July of 2012, she was less certain. She bought the diary because the applicant’s sister and father had told the applicant to record the incidents relating to her difficulties at work. I accept the applicant’s evidence that her mother bought and gave her the diary in early August. The printed dates in the diary run for a year, beginning at the end of July. The timing of the purchase coincides with when the diary starts, and it would make little sense for the applicant’s mother to have bought her a diary around Christmas of 2012 that would have had about half of its content out of date by the time the applicant received it.

71The applicant was summoned to a meeting on August 21 with Ms. Girolamo and Ms. Borts. The HR manager explained that she called the meeting because on the day before she had been approached by the lifeguard’s supervisor. The supervisor told her the lifeguard had received threatening text messages from the applicant’s boyfriend. Ms. Girolamo felt obliged to investigate because this incident had raised the potential of violence in the workplace.

72It is not disputed that there was an exchange of text messages between the boyfriend and the lifeguard. In his evidence the boyfriend describes them as an exchange of insults that came about because the applicant’s phone was lying around and he saw an incoming text from the lifeguard. The boyfriend responded, using the applicant’s phone and telling the lifeguard to leave her alone.

73The applicant’s sister was with the boyfriend when this took place. Her account is consistent with his, except that she explained that she was the one who suggested the content of the text messages in reply to the lifeguard, and the boyfriend essentially transcribed and sent them.

74I accept that this is what took place, although I find that the texts sent by the boyfriend were threatening, rather than simply insulting. This is because it is undisputed that the police became involved and went to the boyfriend’s workplace and cautioned him about what he had done. In my view, the police would not have done so unless the texts were threatening.

75Ms. Girolamo’s account of the meeting on August 21 is that when the applicant was told of the text messages she did not deny that they had come from her boyfriend. She told the applicant that this situation could lead to violence in the workplace and that the applicant was in part responsible. The applicant became tearful and said that she had messed up the situation. Ms. Girolamo took this to mean that the applicant had messed up her relationship with her boyfriend.

76Ms. Girolamo says that the applicant made no reference to being kissed in the parking lot in July against her will, nor did she raise concerns about any other harassment by the lifeguard at this meeting.

77The lifeguard’s evidence in relation to the parking lot incident is that he and the applicant had hugged in the parking lot and that it had been consensual. Stephane Litchy had seen them hugging because he asked the lifeguard the next day whether they were dating, and the lifeguard told his supervisor that they were not.

78Cendrine Mervellet said that although she and the applicant texted one another often, the applicant had not sent her a text about the incident in the parking lot.

79The applicant’s sister had no recollection of being told by the applicant that she had been kissed against her will in the parking lot. The sister simply stated that she knew the applicant was being bothered by the lifeguard.

80The applicant’s mother testified that the applicant had told her that the lifeguard had once kissed her against her will. However, she had no recollection of when the applicant said this took place or under what circumstances.

81Ms. Borts had no independent recollection of the August 21 meeting. She refreshed her memory by referring to her notes. They are minimal and read as follows:

Chantal – not formal

• prev conversation – Austin/Chantal
• conduct/Austin
• consent
• witnesses
• partner – assoc
• threats
• concern on propty [sic] during shift
• cease + desist
• concern rep [sic] of threats Bill 168

82Gloria Borts testified that this was an informal meeting that followed from the June 1 discussion regarding the conduct of the lifeguard and the applicant. She said that the applicant again confirmed that their relationship was consensual. She stated that the reference to “witnesses” was a statement by Daniella Girolamo that other employees had raised concerns about the conduct of the lifeguard and the applicant at work.

83Ms. Borts stated that the threatening texts from the boyfriend to the lifeguard had raised a concern on the part of Daniella Girolamo about the risk of workplace violence. That is why her notes refer to Bill 168, the legislation that addresses the responsibilities of employers in preventing and addressing violence and harassment in the workplace.

84The applicant was told at this meeting that from now on her boyfriend could pick her up from work but that he could not enter the hotel. He was to wait outside in the parking lot.

85In the margin of the union representative’s notebook there is another note that reads:

He kissed me – Grabbed Stephane – Tom [the name of the applicant’s boyfriend] p/u 11:30 if continues there will be discip [sic]

86The union representative did not have a clear recollection of what this note meant. She thought that “if continues there will be discip” referred to the conduct of the applicant and lifeguard, which she said was consensual but inappropriate for the workplace. In cross-examination she said she thought that it meant that both employees could be disciplined, not that this was a reference to the lifeguard risking discipline for harassing the applicant. She denied that the applicant said that the lifeguard had grabbed her and kissed her against her will. The words “cease and desist” referred to both the applicant and the lifeguard.

87The applicant did not record the parking lot incident in her diary, even though she says that it is this incident which prompted her to start recording events. When asked why, she said that she had decided not to record past events but only ones from the time she received the diary forward. In cross-examination she said that she remembered this incident vividly in any case, so there was no need to record it.

88The applicant’s diary contains an entry for August 21, the day of the meeting. It says:

Had meeting w Daniella, Gloria, Belay Tom [boyfriend] told to stay off property Co-workers claim consentual [sic] actions Convo to stay between the four of us

89I conclude that there was some physical interaction between the applicant and the lifeguard in the parking lot. The lifeguard indicates that he hugged the applicant. I do not believe on a balance of probabilities that their interaction was non-consensual. The applicant’s version is that a sexual assault occurred because the lifeguard grabbed and kissed her against her will. This was the most serious of the actions the lifeguard is said to have committed. It involved physical force.

90The applicant’s claim that she told her friend and co-worker, Cendrine Mervellet, of the incident by text is not supported by Ms. Mervellet. In assessing Ms. Mervellet’s evidence and possible underlying motivations, I am mindful that she still works for the respondent. However, she is also a union steward and the availability of the union’s protection is also a factor to be considered in assessing her credibility. I found her to be a credible witness in that she gave the appearance of trying to tell the truth throughout her evidence. Although called by the respondent, she did not appear to be tailoring her evidence to support its position. Where she could not recall details she freely admitted this. The fact that she found the behaviour of the applicant and the lifeguard at the front desk to be a distraction, yet did not complain to management about it, is consistent with her account that she and the applicant were friends at the time of these events. In fact the applicant trusted her enough to ask her to support her in another meeting with Daniella Girolamo about her suicide attempt that is described below. I find her account that she did not receive a text from the applicant regarding the parking lot incident to be credible.

91The applicant says that her sister encouraged her to keep a diary after she told her about the parking lot incident. While I accept that the sister suggested to her that she keep a diary, the sister has no recollection of being told about the parking lot incident which is said to have triggered that suggestion in the first place.

92The applicant’s mother corroborates the applicant’s claim that she told her mother she was kissed against her will, but the mother’s account stops there. She could not recall anything the applicant may have told her about the timing or circumstances of this incident. The mother’s evidence is proof of the fact that the applicant told her she was kissed against her will, not that it actually occurred. Within those limited parameters, its evidentiary value is further limited by the fact that the mother could not recall what the applicant had told her about the timing or circumstances of that incident.

93The evidence that is arguably most supportive of the applicant’s account is the marginal note in Gloria Borts’ diary. The words “He kissed me – Grabbed” are obviously capable of supporting the applicant’s account that the lifeguard grabbed and kissed her against her will. But, because the entries are so cryptic, they are capable of other interpretations as well. I do not conclude from those four words alone that the applicant was telling the respondent that she had been assaulted. Those words have to be read in the context of the note as a whole and what actions the parties took as a result of that meeting.

94The marginal note also says “if continues there will be discip[line]”. These words are, by implication, attributed to Daniella Girolamo (as she had the power to discipline). It is not in “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” (per Faryna) that the HR manager would have just been told of unwanted physical contact by one employee on another and would have done nothing other than to say that if it happened again it would lead to discipline. It was clear to me in listening to the HR manager’s evidence that she understood the respondent’s obligation to investigate and prevent harassment, as well as its potential legal liability for failing to do so.

95Even if I were to accept that the HR manager was prepared to do no more than warn of discipline if there were a recurrence, I would not then expect an experienced union representative to let management’s treatment of an allegation of this kind go unchallenged.

96The alternative explanation, which is that those words refer to the prospect of discipline for the applicant and the lifeguard if they continue inappropriate but consensual behaviour in the workplace, is more consistent with what I would expect to have taken place in the circumstances. I say this because both the applicant and lifeguard had both been spoken to by management on June 1 and told to stop their behaviour. This had not had the desired effect and the seriousness of the situation had escalated because of the threatening actions of the boyfriend. At the time of the August 21 meeting the respondent did not have a basis to discipline the applicant for the conduct of her boyfriend alone. However, because the situation was escalating, it makes sense that the respondent would warn the applicant of the prospect of discipline if the situation between her and the lifeguard continued. I find that this is more likely what happened.

97Further, the applicant’s own diary entry, while making mention of the August 21 meeting, does not indicate that she told the meeting that she was being harassed. Up to that point the applicant had not complained to management or the union about the parking lot incident. If the purpose of the diary was to record significant events relating to the harassment by the lifeguard, and the meeting presented a clear opportunity to have complained to the respondent about having been kissed against her will, then I would have expected her to note this down in her diary. This is particularly the case because by this time the applicant states that she had formed the view that, despite her having made complaints, the respondent had ignored them. The note in the diary “Co-workers claim consentual actions” supports an inference that, while her co-workers thought the relationship to be consensual, she did not agree. However, even if I assume this to be the case, there is no indication that she communicated that belief to the respondent.

98I find that the applicant has not shown on a balance of probabilities that the encounter in the parking lot was non-consensual. She has also not shown that she raised a concern about being harassed with the respondent in the August 21 meeting. Rather, I think it is more likely than not that the August 21 meeting was primarily concerned with the threatening texts from the boyfriend. A secondary concern was that the respondent wished the behaviour between the applicant and the lifeguard to stop and was communicating its intent to discipline if it did not.

4. The applicant contacts her union representative

99The applicant testified that on August 23 she went on a trip to Toronto with her sister. Her boyfriend sent her a text message that day to tell her that the police had come to see him regarding the messages he had sent to the lifeguard. The applicant called the union representative the next day and told her what her boyfriend had communicated to her. She put the call on speakerphone so that her sister could hear it. The union representative was shocked that the police had been called and said that she would look into it.

100The union representative has no notes of this call and could not recollect it. In cross-examination she stated that if there had been anything significant about the call she would have taken notes.

101The applicant’s diary entry states:

Called Gloria from Toronto w Kimmy [sister] present Unaware of situation w police

102The applicant’s sister says that during the call the union representative stated that it was unprofessional that the information discussed at the August 21 meeting had been passed on to the police and that she would look into this.

103The applicant says that she followed up the August 24 call with another call to Gloria Borts on August 28. She again put the call on speakerphone so that her mother and sister, who were present, could both hear it. Ms. Borts said that none of the respondent’s managers had passed the information on to the police, so there was nothing that she could do about this. The applicant told her that she did not want to go back to work because she feared harassment from the lifeguard. Ms. Borts told the applicant to let her know if there were any further incidents of harassment from the lifeguard, and she would then do something about it.

104The applicant’s mother said that she heard parts of the conversation because she was going in and out of the room while it took place. The applicant was upset and was asking the union representative to do something about the harassment by the lifeguard. The mother could not remember the specifics beyond that.

105The applicant’s sister confirmed the applicant’s account. The applicant’s diary entry for August 28 reads:

Called Gloria back. Told me it wasn’t manag. that called. was coworker unable to take it any further

106Ms. Borts has no notes of this call and no recollection of it either.

107The lifeguard’s evidence is that he was told by Daniella Girolamo that the police had been notified of the threatening text messages.

108The Application contains no mention of either phone call.

109If either phone call occurred, I do not accept that either of them took place in accordance with the applicant’s account. Ms. Borts made notes of meetings that affected the interests of union members, and I would have expected a note to exist if she had been given information on those calls that ran counter to what she expected to happen as a result of the August 21 meeting. The respondent felt obliged to inform police of the fact that an employee had been threatened by text message, and it would have been inconsistent with its statutory obligation, and with how I would expect an employer to act these circumstances, to simply keep the information confined to the participants at the August 21 meeting and not tell the police.

110Further, the applicant’s account of the calls is that Gloria Borts was told of the issue on August 24, looked into it and came to the conclusion that she could do nothing because no one from management had contacted the police. The suggestion here is that Ms. Borts disapproved of management’s conduct but could do nothing about it. If that were the case I would expect either her or Ms. Girolamo or both to have some record of the union first inquiring of management what happened and, on being told of management’s action, then objecting to management’s breach of the confidentiality of the meeting, but there is none.

111Moreover, this leads me to ask why Gloria Borts would object to actions which led the police to go and talk to the boyfriend, who is not a member of the union in any event. If the union’s overriding duty is to the safety of its members, then it seems unlikely that Ms. Borts would be overly concerned about a non-member being spoken to by the police. The union had no interest in seeing the information about threatening texts kept from police. It had every interest in minimising the risks of violence in the workplace.

112Finally, the applicant maintains that she used the opportunity of the August 28 call to again tell the union representative that she was being harassed, but that Gloria Borts did nothing other than to promise action if the harassment occurred again. Neither of the applicant’s diary entries indicates that she raised concerns on the calls about being harassed, although the stated purpose of the diary is to record every event regarding the applicant’s adverse treatment at work.

113The applicant’s accounts of the August 24 and 28 phone calls are intended to show that the union was made aware of her concerns about harassment but did nothing. In other words, she says that the union colluded with the respondent to ignore her claims of harassment. I have set out why I do not think that the conversations occurred as the applicant claims. I also note that, although the applicant has been represented by counsel from the outset of this Application, the calls are not mentioned in the Application nor has the applicant sought to amend her Application to include the union as a respondent.

5. The applicant is hospitalised on September 9, 2012

114The applicant returned to work on August 29. She did not see the lifeguard again until August 31. She states that he walked past the front desk and made an offensive comment. She told him that she did not have time for this kind of behaviour.

115The applicant says that on September 8 she was working at the front desk with another agent, Oliver. The lifeguard came to return the pool key at around 10 p.m. While the applicant was turned to pick up some paper from the printer the lifeguard said she had a “nice ass”. She states that this was a remark that he made in front of a guest, and that he then blew an air kiss at her and made the shape of a heart with his hands. She rolled her eyes and muttered “fuck off” under her breath. The applicant said that she then went into the back office and began to cry. She told Oliver that it was unfair because she was being blamed for the lifeguard’s offensive behaviour. Oliver told her that he “had her back” and would look out for her if this happened again.

116The applicant was very upset and went home. She was scheduled to work the morning shift the next day, but called in to tell the night auditor that she would not be in to work the next day. In the afternoon of the next day she took an overdose of Tylenol in an attempt to commit suicide. She woke up to pain in the stomach and vomited. Her boyfriend and mother called an ambulance and accompanied her to hospital.

117The applicant was discharged from hospital the next day. The discharge summary from the hospital states that she ingested Tylenol “after a fight with her boyfriend”.

118The applicant was referred to a psychiatrist. The psychiatrist took the applicant’s history and his report reads, in its relevant parts:

Towards the end of August she was having significant troubles at work. She was feeling a fellow there was approaching her inappropriately and she was not getting much support from her union or HR department. She felt somewhat overwhelmed[…] and it actually appears that as a result of her complaints against this fellow at work, her boyfriend got into some trouble as well and the police actually showed up at his place of work as a result.

119Neither of the authors of these reports was called to give evidence. The applicant introduced the discharge report and the psychiatrist’s report not for the truth of their contents, but rather as proof of the fact that the applicant made these statements at the time she spoke to the emergency room doctor and the psychiatrist. While a prior inconsistent statement may undermine a witness’ credibility, the converse is not true. In other words, consistently making the same account does not enhance the credibility of a witness; it simply means that the witness is consistent in making the same statement.

120In any event, the statements may not be consistent because the one made to the doctor who authored the discharge summary attributes the applicant’s suicide attempt to a fight with her boyfriend, whereas the statement to the psychiatrist attributes it, in part, to the indifference of the union and the respondent when the applicant reported being harassed. Regardless of how the two statements are interpreted, I attribute no weight to them in relation to the facts that are in issue, which is whether the applicant was harassed by the lifeguard or reported being harassed to the respondent. This is because, as I have outlined throughout the reasons above, the preponderance of the evidence does not support findings that the applicant was harassed or that she complained of harassment to her employer or union.

121On September 13, 2012, the applicant was given a note by a family physician indicating that she should be off work until September 21. She took this note to work and met with Cendrine Mervellet. The applicant asked Cendrine to come with her to a meeting with Daniella Girolamo. The applicant wanted Cendrine present as support.

122The applicant says that she and Cendrine met with Ms. Girolamo outside the hotel. The applicant wanted the conversation to be informal. It was a brief conversation in which she explained to Daniella Girolamo that she had attempted suicide because of the harassment she had experienced at work. Ms. Girolamo felt very bad upon learning this and told her to take as much time off work as she needed to recover.

123In cross-examination the applicant gave a somewhat different account. She stated that she did not tell Ms. Girolamo that she attempted suicide because she had been harassed by the lifeguard, but rather had done so because of what had “gone on at work”. However, she stated that she had told Cendrine earlier, by telephone, that it was the lifeguard’s harassment that had caused her to attempt suicide.

124Daniella Girolamo recalled this meeting. She said that the applicant had been very apologetic and felt bad about her relationship with the lifeguard at work. The applicant felt remorse for having become involved with the lifeguard and was now going through a break-up with her boyfriend. She explained this was why she had attempted suicide and was on medical leave. Ms. Girolamo rejected the suggestion that the applicant indicated she had been harassed by the lifeguard. She felt that the applicant wanted this to be a private conversation and that it was focused on the failure of her relationship with her boyfriend.

125Cendrine Mervellet denied that the applicant had told her by phone that she had attempted suicide as a result of the lifeguard’s harassment. She stated that the applicant was very upset and sad during the conversation with Daniella Girolamo. The conversation was about the fact that the applicant had been hospitalised and about her medical situation. She stated that she still did not know why the applicant had attempted suicide.

126I do not accept that the applicant attributed her suicide attempt to harassment in this conversation. In effect the applicant claims to have told her employer that another employee’s workplace conduct had driven her to attempt to take her life. If this were the case, I would have expected Ms. Girolamo to have taken some steps to address this. This would have included an investigation that could have resulted in termination of the lifeguard’s employment and possibly even notification to the police of potential criminal wrongdoing. At a minimum, I would have expected Ms. Girolamo to make some record of this allegation. I find it unlikely that her response to a revelation of such an extreme consequence of workplace harassment was to do no more than express sympathy and tell the applicant to take time to recover.

127Cendrine Mervellet was sought out by the applicant to support her in this meeting, which indicates that the applicant trusted her. Yet her account of the meeting does not support the applicant’s version.

128If the applicant’s version of events is correct, then from the meeting of June 1 onwards Ms. Girolamo was systematically covering up a serious breach of the Code and the respondent’s obligations to maintain a safe workplace. Not only was the union colluding in earlier instances of the respondent’s indifferent response to harassment allegations, but now a co-worker, Ms. Mervellet, was also assisting in covering up the truth. The evidence does not support the existence of such a conspiracy.

129I find it more likely than not that the applicant made no suggestion of having been harassed during this conversation.

6. The applicant’s complaint to the Ministry of Labour and the respondent’s investigation

130The applicant remained off work for medical reasons until October 14, 2012. When she returned to work it was on a full-time basis. The applicant then requested that she be allowed to work part-time hours instead. The respondent, through Ms. Girolamo, explained that the collective agreement obliged the employer to schedule a full-time employee for 40 hours in the week if there were 40 hours available. If there was a medical reason for the applicant to work part-time, then the employer was obliged to accommodate this, but the applicant had to provide documentation from her doctor to support this request. If there were no medical documentation, then the applicant could choose to work part-time but would lose her seniority as a full-time employee as a result. Ms. Girolamo states that the applicant became angry at being told this was the choice she had to make and left Ms. Girolamo’s office.

131When the applicant consulted Ms. Borts, the union essentially confirmed that this was the case.

132The applicant last went to work on October 29 and provided a note from a doctor on October 31 which said that she would be off work for medical reasons, but provided no more information than that. The respondent wrote to the applicant on November 2 seeking details from the applicant’s physician about her fitness to do her regular tasks and whether there were any limitations on her working full-time as a front desk agent.

133The applicant refused to provide the information because she thought the respondent’s request was invasive and unjustified.

134In the first week of November 2012 the applicant contacted the Ministry of Labour to say that she had complained to the respondent about workplace harassment and nothing had been done about it.

135The respondent’s position is that the applicant filed this complaint because she was angry about not being able to move to part-time hours. I do not need to determine why the applicant complained to the Ministry of Labour. Rather, what is important for the purposes of this Decision is what steps the parties took next.

136A Ministry of Labour inspector came to the hotel and met with Ms. Girolamo on November 9. The inspector’s field visit report indicates that the respondent undertook to investigate the complaint, that the union would be present at all interviews in the course of the investigation, and that if action was needed to be taken as a result of the investigation, then this would occur.

137The respondent wrote to the applicant on November 13. The letter begins as follows:

As you are aware, you recently brought forward a concern to the Ministry of Labor [sic] regarding workplace harassment. In your concern to the Ministry of Labor, you reported that you filed a complaint of workplace harassment to us, the employer, and that no action of follow up was completed.

We would like to clarify that we were not aware of any allegations surrounding a violation of Crescent Hotels and Resorts’ Harassment in the Workplace Policy in relation to yourself as a claimant. Moreover, now that we are aware of an alleged violation we are committed to adhering to our policy as outlined in the Associate Handbook.

138It goes on to invite the applicant to a meeting on November 21 to hear the nature of her complaint so that the respondent can start an investigation. The letter states that the respondent is unaware of the nature of the allegations and knows no more than that a complaint was made.

139The applicant was driven to this meeting by her father, who has experience as a union official in a different union. Ms. Borts was supposed to be at this meeting but she could not attend as she was sick that day. She had arranged for another union official to be on standby. That official was called when the applicant arrived at the meeting. He indicated that he would be at the hotel in about 15 minutes. The applicant’s father was waiting in the car in the hotel parking lot. The applicant said that she could not stay and wait for the meeting to start because her father had another commitment and she had no other means of getting home. She left.

140Before she left the applicant agreed to reschedule the meeting to the following day, November 22. The applicant left a voicemail message with Ms. Girolamo on that day, saying that she could not attend because her father was not available. On November 23 the applicant left a voicemail message for Ms. Girolamo saying that she was available to meet on November 27. Ms. Girolamo called the applicant on November 26 and left a message to confirm that the meeting would go ahead on the following day.

141On November 27 Ms. Girolamo and Ms. Borts waited for the applicant to arrive at the meeting but she did not come. Ms. Girolamo called the applicant on that day, again asking her to attend the investigation meeting.

142On December 7, 2012, Ms. Girolamo wrote to the applicant setting out the chronology of failed attempts to meet. The letter then concludes:

We wish to have your involvement in the investigative process, and note that without your participation we are unable to investigate your concerns as we have no further information beyond what was provided to us by the Ministry of Labor and communicated to you in our letter of November 13, 2012. Regrettably, if you are unable to supply information related to your concerns of harassment, we will have no choice but to resolve all allegations without your participation.

143The applicant explained that she left the meeting on November 21 because her father could not stay to take part, and she did not trust the union to represent her interests. The problem that I have with this explanation is that her father did not come into the hotel to accompany her to the meeting, so he was not actually present to support her in the first place.

144In any event, there were other opportunities for the applicant to participate in the investigation, first on the date she proposed – November 27 – and thereafter when the respondent extended an open-ended request for her participation in its December 7 letter. The applicant says that she received none of the voicemails that Ms. Girolamo left her and that is why she did not attend on November 27. Assuming this to be true, it still does not explain why she did not respond to the December 7 letter.

145In light of the sequence of events, and giving the applicant the benefit of the doubt in relation to whether she received any voicemails, I conclude that the applicant has not provided a credible explanation as to why she did not participate in an investigation which she had triggered by her complaint to the Ministry of Labour. If the applicant was right that the respondent had brushed off her earlier complaints of harassment, the intervention of the Ministry of Labour was now forcing the issue into the open. The applicant’s failure to participate in an investigation that had been triggered by her complaint undermines her allegation that the respondent had been told of harassment and ignored it.

Conclusion

146I am not satisfied on a balance of probabilities that the lifeguard harassed the applicant. When the respondent initially raised the issue of their relationship at the June 1 meeting, the applicant’s own evidence is that she said that they were “work friends”. The course of conduct of both the respondent and the union in dealing with this issue on June 1 and August 21 is consistent with the respondent’s position that the relationship was consensual but inappropriate for the workplace. This is also consistent with what was witnessed by Cendrine Mervellet. The other co-workers – Charles and Oliver – whom the applicant says witnessed harassment were not called to give evidence. I think it more likely than not that the relationship was consensual but that the applicant felt stressed by the fact that the respondent confronted her about this issue.

147I am also not satisfied on a balance of probabilities that the applicant complained of being harassed to the respondent. For the reasons I set out above in relation to the June 1 meeting, the August 21 meeting, and the phone calls between the applicant and the union representative on August 24 and 28, I think that the applicant did not make complaints to the respondent or her union about the lifeguard’s behaviour. Further, her diary entries do not support her claim that she complained. This is inconsistent with her assertion that the very reason she started the diary was because her complaints to the respondent were falling on deaf ears.

148In the one instance in which the respondent was put on notice of a complaint about harassment, it learned of this through the Ministry of Labour inspector. It then responded appropriately by asking the applicant for the details of her complaint. The applicant took no part in the investigation.

149In summary, the applicant has not shown on a balance of probabilities that she was harassed by the lifeguard and that her complaints of harassment were ignored. The result is that the Application is dismissed.

Order

150The Application is dismissed.