Bhomisha v. Aimia Proprietary Loyalty Canada Inc., 2016 HRTO 331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maazbin Bhomisha

Applicant

-and-

Aimia Proprietary Loyalty Canada Inc.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: March 14, 2016 Citation: 2016 HRTO 331 Indexed as: Bhomisha v. Aimia Proprietary Loyalty Canada Inc.

APPEARANCES

Maazbin Bhomisha, Applicant Self-represented

Aimia Proprietary Loyalty Canada Inc., Respondent Anne Gallop, Counsel

Introduction

1The applicant, who was employed by the respondent, filed an internal complaint which alleged that a co-worker had sexually harassed her. The respondent investigated and upheld the complaint, and disciplined the co-worker. Approximately 10½ months later, the respondent terminated the applicant’s employment. The purpose of this Decision is to decide whether the respondent terminated the applicant’s employment as a reprisal for having claimed her rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application is dismissed. I have decided that the applicant has not proven, on a balance of probabilities, that the respondent terminated her employment as a reprisal for having claimed her rights under the Code. The following are my reasons.

BACKGROUND

3On October 29, 2013, the applicant filed an Application with the Tribunal under s. 34 of the Code, which alleged that the respondent subjected her to reprisals for having claimed her rights under the Code. Her specific allegations were threefold. First, she alleged that the respondent terminated her employment as a reprisal for having complained that a co-worker had sexually harassed her. Second, she alleged that the respondent terminated her employment as a reprisal for having requested security measures to protect her from the co-worker. And third, she alleged that the respondent terminated her employment as a reprisal for having filed a human rights Application against her previous employer.

4Although the applicant checked off the box for “sexual solicitation or advances” in section 5 of the Application (“Grounds claimed”), she did not name the co-worker as a respondent, and did not allege that the respondent violated her rights under the Code by failing to take reasonable steps to respond to and address her internal sexual harassment complaint. Rather, the narrative and other sections of the Application solely alleged that the respondent terminated her employment as a reprisal for having claimed her rights under the Code.

5On January 21, 2014, the respondent filed a Response, which denied the applicant’s allegations of reprisal. Specifically, the respondent stated that it investigated and upheld the applicant’s internal sexual harassment complaint, and disciplined the co-worker, and that her employment was terminated nearly a year later solely because of her rude, unprofessional and insubordinate behaviour in the workplace. The respondent also denied that it was aware that the applicant had filed a human rights Application against her previous employer.

6On March 31, 2014, the applicant filed a Reply, which maintained her allegations of reprisal.

7The hearing of the merits of the Application took place over three days. I heard the testimony of three witnesses: the applicant; Erin Mistry, who was a Human Resources Manager during the applicant’s employment; and Pier Ragone, who was a Director of Operations during the applicant’s employment. I also admitted into evidence a number of documents, including performance appraisals on the applicant, email exchanges, internal complaints filed by the applicant, investigation reports, discipline letters, and the letter terminating the applicant’s employment.

8At the outset of the hearing, I asked the applicant to clarify whether she was pursuing any allegations beyond the allegations of reprisal in her Application. The applicant’s answer was equivocal and unclear, but ultimately, she agreed that she had not made any further allegations in her Application, and had not filed a Request for an Order During Proceedings to amend her Application. Accordingly, I ruled that I would only hear evidence about the allegations of reprisal.

9During the hearing, on several occasions, the applicant attempted to present evidence which she had not previously disclosed, contrary to the Tribunal’s Rules of Procedure, or which was irrelevant and/or unreliable. On several occasions, she was also resistant to following my directions. For example:

• She requested that I admit into evidence internet postings, which, according to her, show that a male manager, who was involved in investigating her internal sexual harassment complaint, took photographs of naked men. She argued that these postings explain why he favoured men in the workplace. I denied this request because the postings had not been disclosed to the respondent, they did not appear to be relevant to the issues in the Application, and her argument in support of her request had homophobic undertones.
• She requested that I admit into evidence three recent Facebook photographs, which, according to her, show the co-worker who had allegedly sexually harassed her socializing with some of the respondent’s managers and supervisors. I denied her request because she refused to disclose the photographs to the respondent, and would not disclose who took the photographs. Following a break, the applicant walked up to my hearing podium, and put her cell phone directly in front of my face in an attempt to force me to look at the photographs.
• On several occasions when she was being cross-examined, she attempted to provide re-examination testimony, and have new documents admitted into evidence. I directed her several times to wait until she provided her re-examination testimony. On one occasion after I gave her this direction, she responded by standing up from the witness stand, walking towards my hearing podium, and trying to force the document that she wanted admitted into my hands.
• On several occasions, the applicant testified at length about matters that were not relevant to the issues in the Application. On one occasion, when I directed her to stop speaking, she simply talked over me and ignored my direction, and continued to speak for several minutes.

EVIDENCE

10The respondent is a business loyalty company. The applicant began working for the respondent on June 15, 2009. She held the position of travel consultant in the respondent’s Travel Rewards Contact Centre. Her duties included answering incoming calls from Travel Rewards cardholders, and assisting them with various matters, including their travel.

11The Travel Rewards Contact Centre was open between 7:00 a.m. and 11:00 p.m. from Monday to Friday, between 8:00 a.m. and 8:00 p.m. on Saturdays, and between 11:00 a.m. and 7:00 p.m. on Sundays. The days were divided into shifts. The shift between 9:00 a.m. and 5:00 p.m. from Monday to Friday was the premium shift that most travel consultants wanted to be assigned to. Travel consultants were eligible to bid for preferred shifts by periodically filling out shift selection sheets. Shifts were then assigned mainly based on performance ranking. Beginning in mid-2011, the applicant mainly worked the 3:00 p.m. to 11:00 p.m. shift from Monday to Friday.

12The respondent conducted annual performance appraisals on its employees. In December 2010, the applicant’s supervisor, M.T., conducted such an appraisal on her, which found that she consistently achieved performance targets, but expressed concern about her occasional negativity in discussing certain issues with others in the workplace.

13On December 15, 2011, the applicant overheard a co-worker, B.D., telling another co-worker, S.A., that he could change his sick day into a lieu day on the electronic schedule. The applicant expressed her opinion that that this was wrong, and then checked S.A.’s computer to see if the change had occurred. Shortly thereafter, the applicant saw B.D. discussing the situation with a supervisor, C.T. She approached them, and asked to speak with C.T. separately. She then told C.T. her account of what had happened.

14The respondent’s management decided to conduct an investigation into the incident. On December 19, 2011, the applicant’s supervisor, M.T., interviewed her. On December 20, 2011, M.T. sent the applicant an email, which expressed concern about the applicant’s behaviour. Specifically, M.T. stated that she was concerned that the applicant had committed a security breach by checking S.A.’s computer, and had confronted B.D. and C.T. in an unprofessional and indiscreet manner rather than emailing C.T. about her concern.

15In response, on December 21, 2011, the applicant sent M.T. an email, which requested that B.D. apologize to her, acknowledge to her that what he did was wrong, and assure her it will not happen again. She did not address any of the concerns that M.T. raised about her behaviour.

16On December 23, 2011, the applicant sent a Human Resources staff person, L.M., an email, which stated that she had further information, which would explain B.D.’s behaviour towards her on December 15, 2011. Specifically, she alleged that B.D. had been “obsessed” with her for nearly two years, she had told B.D. that she was not interested in him, and he was very upset that she was not speaking to her.

17On December 27, 2011, M.T. issued the applicant a Final Written Warning letter, which disciplined her for “unprofessional behaviour” on December 15, 2011. The letter eliminated the applicant’s eligibility for bonuses and certain benefits for one month, and warned her that should any other conduct issues arise, further disciplinary action would be taken, up to and including termination of employment.

18On the same day, L.M. and a manager, C.C., began investigating the applicant’s allegation that B.D. had sexually harassed her. The investigation was ongoing until January 6, 2012. The applicant possessed several emails and handwritten notes, which appeared to indicate that B.D. was interested in her romantically. L.M. and C.C. also interviewed B.D. and confronted him with the evidence that the applicant had given them. They also confronted the applicant with evidence that she had gone alone on a car trip to Buffalo with B.D. after he had allegedly made advances towards her. When I asked the applicant why she had gone on such a trip, she responded that she had to pick something up in Buffalo, B.D. had offered to drive her, and she had the impression that B.D.’s wife was also coming.

19On January 6, 2012, L.M. and C.C. produced an Investigation Summary Report, which upheld the applicant’s complaint. On the same day, C.C. issued B.D. a Final Written Warning letter, which disciplined him for making inappropriate comments that are known, or ought to be known, to be unwelcome to a colleague. The letter eliminated a significant employee benefit for one year, and warned him that if his behaviour continued, it would result in further disciplinary action, up to and including dismissal from employment. The applicant testified that she does not believe that the letter is authentic because the signature of the manager who signed it, C.C., does not look like his signature. Erin Mistry, who was a Human Resources Manager at that time, testified that she had seen the Final Written Warning around the time that it was issued, that its contents are accurate, and that she recognizes the signature of C.C.

20To monitor any future contact between B.D. and the applicant, the respondent’s management also decided to move the applicant’s desk close to a supervisor’s desk.

21Over the next several weeks, the applicant refused to submit a shift selection sheet to M.T. because, in her view, her ranking had been unfairly lowered by her Final Written Warning letter.

22On January 17, 2012, the applicant filed an online internal ethics complaint, which requested that “management be monitored for their business practices,” and stated that “[t]he rest being left for you to find out.” The respondent has a special, confidential process for dealing with ethics complaints.

23On January 20, 2012, M.T. conducted the annual performance appraisal on the applicant. She found that the applicant consistently met minimum performance goals and sometimes achieved performance targets, which was a lower rating that in the previous performance appraisal. M.T. identified the applicant’s problems communicating and working with others in the workplace, which had been identified in the previous appraisal, as a continuing issue, and specifically mentioned the Final Written Warning letter that she had been issued.

24In response, on the same day, the applicant sent M.T. an email, which requested that she be assigned the same day shift as senior level management because she was concerned about her security given the recent incident. M.T. forwarded the applicant’s email to C.C. and a Director of Operations, Pier Ragone, and requested a discussion about “next steps”. C.C. sent an email in response, which stated that, given all the ”other horrors” that the applicant had inflicted on them, he wanted to consider “moving her out”, and he was not in favour of assigning her the premium shift because her sexual harassment complaint was not fully substantiated.

25On the same day, the applicant also added further allegations to her internal ethics complaint, including allegations that supervisors manipulated performance appraisals and score cards, and denied employees premiums which had previously been promised for working night shifts. On January 24, 2012, the applicant also filed a harassment complaint against M.T. with Human Resources. The complaint alleged that the Final Written Warning letter that M.T. had issued to her was false and an unfair management practice, and that M.T. was accusing her of not properly filling out the shift selection sheet.

26To address the applicant’s concern about security, the respondent granted her request to be assigned the 9:00 a.m. and 5:00 p.m. shift from Monday to Friday, and assigned B.D. the late afternoon and evening shifts. Ms. Mistry testified that Human Resources overrode C.C.’s opposition to assigning the applicant the premium shift. She stated that there was no evidence that B.D. had violent tendencies, and she was not concerned about the applicant’s security, but that it was the right thing to do because it would make the applicant feel better. To address the conflict between the applicant and M.T., the respondent also assigned a different supervisor, E.H., to the applicant.

27On April 11, 2012, the respondent’s Privacy and Ethics Officer sent the applicant a letter, which stated that, in her view, the applicant’s harassment and ethics complaints had been resolved.

28On August 14, 2012, B.D. resigned from his position and left the employ of the respondent. E.H. informed the applicant that, because there was no longer a need to accommodate her with respect to shifts, she would have to participate in the next shift bidding process.

29On October 17 and 19, 2012, a manager, N.F., and the applicant exchanged several emails about the upcoming shift period in November. N.F. directed the applicant to submit a shift selection sheet, but the applicant expressed concerns about her security if she had to work on evening or weekend shifts. N.F. informed the applicant that there were security guards in the building, and, like other female employees, she could walk with colleagues to the subway station at the end of her shift. The applicant informed N.F. that she would not submit the sheet until she had a meeting with Human Resources to discuss her concerns. N.F. informed the applicant that if she did not she did not submit the sheet, the respondent would assign her a shift schedule based on business needs.

30On October 22, 2012, Ms. Mistry and the applicant had a similar email exchange. Ms. Mistry directed the applicant to submit a selection sheet, and maintained that there was adequate security, including building security and colleagues to walk with her to the subway station, to protect her. The applicant, on the other hand, refused to submit the sheet until she had an opportunity to meet with Ms. Mistry to discuss her security concerns. Ultimately, Ms. Mistry agreed to meet with the applicant. She asked the applicant to call her on October 24, 2012, which the applicant agreed to.

31The applicant testified that she was concerned that B.D. was close friends with M.T., N.F. and E.H., and they were willing to protect him over her. In cross-examination, when asked what evidence she had of this, she responded that the sequence of events made this self-evident, and that every supervisor was protecting B.D.

32The applicant also testified that B.D. was still friendly with some of the security guards, who could let him in the building during the evening and weekend shifts. When I asked the applicant why the security guards would let B.D. in if he no longer worked there, she responded that he could just say that he was coming to meet his friends, and he would be let in.

33Ms. Mistry testified that no employee can be left alone at the end of an evening shift, and that it is a common practice for an employee who is concerned about security to walk to the parking lot or the subway station with other employees. Mr. Ragone also testified that there is a clerk in the office who is not allowed to leave until the last employee has left, which means that there was always someone available to walk an employee to the parking lot or subway station. He also stated that arrangements could be made for a security guard to walk an employee to the parking lot or subway station.

34Following her email exchange with Ms. Mistry, the applicant approached E.H. and asked for a shift selection sheet. E.H. also provided the applicant with her performance ranking in relation to other travel agents. The applicant was unhappy with her ranking and made arguments to E.H. about why it was wrong. Later in the day, the applicant sent the respondent’s President, M.O., an email, which complained that she had lost commissions over the previous eight months because of “management incompetency”. She also complained that E.H. had supposedly done a “side by side” with her, which involved monitoring one of her calls for coaching purposes, which had never happened before. She further complained that the statistics about her performance, which led to her ranking, were inaccurate and could not be trusted because supervisors “lie about many things.”

35On October 23, 2012, E.H. issued a Written Warning – Insubordination and Disruptive Behaviour letter to the applicant, which indicated that when she had disputed her ranking, she had acted unprofessionally by raising her voice, being confrontational, and persisting in alleging that the numbers upon which the ranking was based were “fabricated”. The letter warned her that if any other conduct issues arose, further disciplinary action would be taken, up to and including termination of employment. In cross-examination, the applicant admitted that she had asserted her position, but denied that she had raised her voice or been insubordinate toward E.H.

36After receiving the Written Warning letter, the applicant then sent an email to Ms. Mistry, which stated that she had to cancel their planned discussion the following day because she had to deal with an urgent matter.

37The applicant then had a meeting with Mr. Ragone, to discuss her various concerns, including her security concerns about B.D., her low ranking for the shift bid, and the side by side with E.H. The applicant testified that the first question that Mr. Ragone asked her during the meeting was whether she had been happy during her previous job, which, in her view, meant that he was aware of the human rights Application that she had filed against her previous employer. She stated that B.D. must have told management about her previous Application when he left the employ of the respondent as a way of getting revenge against her for her complaint of sexual harassment against him. In cross-examination, the applicant stated that Mr. Ragone may have also found out about her previous Application from people in the travel industry because the industry is small. In his testimony, Mr. Ragone admitted that he may have asked the applicant if she had been happy in her previous job because he wanted to know whether there was a pattern of the applicant being unhappy in her jobs. He denied having any knowledge at that time about the applicant’s human rights Application against her previous employer.

38Following the meeting, Mr. Ragone sent an email to E.H., N.F. and Ms. Mistry, which stated that the applicant had agreed to participate in the shift bid, and wanted to go over the security measures for employees who work late. E.H. then sent an email response, which stated that she had no problem discussing with the applicant how other employees cover their security.

39Following the meeting, the applicant went back to her desk and sent an email to all the members of E.H.’s team, and asked them if E.H. had ever done a side by side with them. In cross-examination, the applicant stated that she had sent the email because E.H. had told her that she had done side by sides with other employees, and she wanted to confirm whether or not this was true. She also admitted that she had sent the email because she believed that E.H. had lied to her, but denied that sending the email was an act of insubordination. N.F. was made aware of the email, and then sent an email to Mr. Ragone and Ms. Mistry, which stated that the applicant was now disrupting the team by involving them in her issues.

40On October 24, 2012, Ms. Mistry and the applicant exchanged emails, and agreed to meet in the afternoon to discuss security measures. However, shortly before the meeting, Ms. Mistry sent the applicant an email, which stated that she was called into an urgent meeting, and would have to postpone their meeting. Ms. Mistry testified that she cannot recall exactly why she cancelled the meeting, but she believes it was because the management team was having discussions about terminating the applicant’s employment.

41On October 29, 2012, N.F. called the applicant into a meeting, which was also attended by Ms. Mistry, and notified her that the respondent had decided to terminate her employment.

42Ms. Mistry testified that she was part of the decision-making process to terminate the applicant’s employment. She stated that decision was made because the applicant was a difficult employee, who had become unmanageable. Specifically, she stated, the applicant was unprofessional and rude in her interactions with her managers and supervisors, all of her managers and supervisors had difficulties managing her, and she could see the applicant’s unmanageable behaviour in her own interactions with her. In cross-examination, when asked how the applicant was unmanageable, Ms. Mistry stated that she constantly challenged processes and changes, and would not stop even after being given a well-explained rationale for the process or change. She stated that there were no other employees who constantly challenged processes and changes the way that the applicant did. Ms. Mistry denied that the applicant’s employment was terminated because she had made an internal sexual harassment complaint, or because she was asking for security measures. She also denied that she had any knowledge about the applicant’s human rights Application against her previous employer when the decision was made.

43Mr. Ragone stated that he had been consulted by N.F. and E.H. about the decision to terminate the applicant’s employment, and had concurred with the decision because he was aware that M.T., N.F. and E.H. all had difficulties managing the applicant. He also stated that he had personally found the applicant difficult to manage. Specifically, he stated, following his meeting with her, where they had agreed on how the shift bid and security issues would be dealt with, she had immediately sent an email to her entire team about the side by side issue, which, in his view, was an attempt to create trouble. In cross-examination, he also stated that the fact that the applicant refused to take responsibility for any of the issues that had arisen was another reason that he concluded that she was unmanageable.

ANALYSIS

44The Application relates to ss. 8 and 9 of the Code, which provide:

8. 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.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

45The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.

46In order to establish a case of reprisal, the applicant must prove the following elements:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant 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.

See Noble v. York University, 2010 HRTO 878 at para. 33 (the “Noble” test).

47Some of the facts in the case at hand are in dispute. In assessing the credibility and reliability of the testimony of the parties’ witnesses, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A), [1951] B.C.J. No. 152 at paras. 10-11:

(…) 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.

48I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

49It is undisputed that the applicant has proven the first element of the Noble test because the respondent took an action against the applicant when it terminated her employment. The main issue is whether the applicant has proven the second and third elements of the Noble test, namely, that the termination was related to her having claimed her rights under the Code, and there was an intention on the part of the respondent to retaliate against her for having claimed her rights under the Code.

50In my view, there is insufficient evidence to draw the inference that the respondent’s decision to terminate the applicant’s employment constituted an intentional retaliatory action against her for having claimed her rights under the Code. The applicant presented very little credible and reliable evidence in support of her allegations of reprisal. By contrast, the respondent presented credible and reliable evidence, which I accept, that it terminated the applicant’s employment for reasons unrelated to her having claimed her rights under the Code.

51I will deal first with the applicant’s allegation that the respondent terminated her employment as a reprisal for having complained that B.D. had sexually harassed her. It is undisputed that on December 23, 2011, the applicant complained to the respondent about alleged sexual harassment by B.D.; the respondent conducted an investigation; produced a report upholding her complaint on January 6, 2012; the respondent moved the applicant’s desk close to a supervisor’s desk to ensure that B.D. did not talk to her; and the respondent assigned the applicant the premium Monday to Friday day shifts, while B.D. was assigned the late afternoon and evening shifts, to address her concern about security.

52I also find that the respondent disciplined B.D. by issuing him a Final Written Warning letter. In her testimony, the applicant expressed doubt that the letter is authentic because, according to her, the signature of the manager, C.C., does not look like his signature. I reject this testimony. I found the testimony of Ms. Mistry, who was a Human Resources Manager at that time, and would have been more familiar with C.C.’s signature, to be more reliable. She testified that she recognized C.C.’s signature. She also provided testimony, which was not shaken in cross-examination, and which I accept, that she saw the letter around the time that it was issued, and that its contents are accurate.

53It is also undisputed that the respondent terminated the applicant’s employment on October 29, 2012, which was approximately 10½ months later. In my view, it is implausible that, after taking all the above steps to address the applicant’s sexual harassment complaint, the respondent would have then terminated her employment nearly a year later to retaliate against her for having complained.

54Moreover, I accept the respondent’s evidence that it terminated the applicant’s employment because she had become unmanageable in the workplace. It is undisputed that in December 2010, which was one year before the applicant complained that B.D. had sexually harassed her, her supervisor had expressed concern in a performance appraisal about her negativity in discussing certain issues with others in the workplace. It is also undisputed that between January and October 2012, the applicant pursued a number of internal complaints against her managers and supervisors, most of which were about matters unrelated to her sexual harassment complaint (for example, performance appraisals, performance rankings, commissions, and side by sides), and explicitly accused them, among other things, of incompetence, manipulation, and lying. She was also unrelenting in pursuing her complaints even after she had received an answer from the respondent. Given the high volume of allegations by the applicant, her use of intemperate language in her accusations about her managers and supervisors, and her unrelenting pursuit of her complaints, it is not difficult to see how this led to the termination of her employment.

55Accordingly, I find that the applicant has failed to establish that the respondent’s decision to terminate her employment constituted an intentional retaliatory action against her for having complained that B.D. had sexually harassed her.

56I will deal next with the applicant’s allegation that the respondent terminated her employment as a reprisal for having requested security measures to protect her from B.D. I accept that the applicant’s requests for security measures were related to her sexual harassment complaint. However, the evidence clearly shows that the respondent consistently responded to all of the applicant’s requests for security measures. It is undisputed that in January 2012, the respondent moved the applicant’s desk close to a supervisor’s desk to ensure that B.D. did not talk to her, and it also assigned her the premium Monday to Friday day shifts, while B.D. was assigned the late afternoon and evening shifts, to address her concern about security. Furthermore, in October 2012, which was after B.D. had left the employ of the respondent, the applicant requested further security measures to protect her if she had to work on evening shifts, and several members of the respondent’s management team sent her emails with specific measures to protect her security.

57In my view, it is implausible that, after taking all the above steps to address the applicant’s security concerns, the respondent would have then terminated her employment as a reprisal for having for having requested security measures to protect her from B.D. Furthermore, as mentioned above, I accept the respondent’s evidence that it terminated the applicant’s employment because she had become unmanageable in the workplace.

58Accordingly, I find that the applicant has failed to establish that the respondent’s decision to terminate her employment constituted an intentional retaliatory action against her for having requested security measures to protect her from B.D.

59Last, I will deal with the applicant’s allegation that the respondent terminated her employment as a reprisal for having filed a human rights Application with the Tribunal against her previous employer. This was the weakest of her three allegations of reprisal. She had no substantive evidence that the respondent’s management team who decided to terminate her employment knew that she had filed a human rights Application against her previous employer. Rather, she simply speculated that they had found out from B.D. or someone else in the travel industry because Mr. Ragone had asked her whether she had been happy during her previous job. Mr. Ragone provided a credible reason for asking her this question, namely, he wanted to know whether there was a pattern of her being unhappy in her jobs. Mr. Ragone and Ms. Mistry also both denied having any knowledge at the time of termination about the applicant’s human rights Application against her previous employer, and their denial was not shaken in cross-examination. Furthermore, as mentioned above, I accept the respondent’s evidence that it terminated the applicant’s employment because she had become unmanageable in the workplace.

60Accordingly, I find that the applicant has failed to establish that the respondent’s decision to terminate her employment constituted an intentional retaliatory action against her for having filed a human rights Application against her previous employer.

ORDER

61The Application is dismissed.