Takhar v. CSM Driver Services Inc., 2016 HRTO 407

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shminder Takhar Applicant

-and-

CSM Driver Services Inc. and Bill Matharu Respondents

DECISION

Adjudicator: Ken Bhattacharjee Date: March 31, 2016 Citation: 2016 HRTO 407 Indexed as: Takhar v. CSM Driver Services Inc.

APPEARANCES

Shminder Takhar, Applicant Deepinder Loomba, Representative

CSM Driver Services Inc., Gurpreet Matharu and Bill Matharu, Respondents Self-represented

Introduction

1The applicant, who was employed by the respondents, took a one-year maternity leave. The respondents terminated her employment approximately 9½ months after she returned from her leave. The purpose of this Decision is to decide whether the respondents subjected the applicant to discrimination because of her pregnancy, harassment because of her sex, and sexual advances.

2The Application is dismissed. I have decided that the applicant has not proven, on a balance of probabilities, that the respondents violated her rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The following are my reasons.

BACKGROUND

3On January 7, 2014, Bill Matharu ("Mr. Matharu") terminated the applicant's employment.

4On January 16, 2014, the applicant filed an Employment Standards claim with the Ministry of Labour, which alleged that CSM Driver Services Inc. ("CSM") had terminated her employment after she had taken a maternity leave. There were no allegations that the applicant was subjected to inappropriate comments about women or sexual advances.

5On June 10, 2014, the applicant withdrew her Employment Standards claim.

6On June 17, 2014, the applicant's representative sent CSM a letter, which alleged that it had harassed the applicant because she took a maternity leave, and terminated her employment without prior notice or warning. There were no allegations that the applicant was subjected to inappropriate comments about women or sexual advances. The letter demanded that CSM pay the applicant monetary compensation, or other legal options would be pursued. CSM did not respond to the letter.

7On August 27, 2014, the applicant filed an Application with the Tribunal under s. 34 of the Code, which alleged that CSM, Gurpreet Matharu ("Ms. Matharu") and Mr. Matharu subjected her to discrimination because of her pregnancy, harassment because of her sex, and sexual advances. Specifically, she alleged the following:

1. Her request for a maternity leave was denied, and she was pressured not to return to work.
2. After she returned from her leave, she was demoted, and her work week was reduced from five to three days.
3. Mr. Matharu subjected her to inappropriate comments about women.
4. Mr. Matharu subjected her to sexual advances.
5. Her employment was terminated because she took a maternity leave.

8Although Ms. Matharu was named as a respondent, the Application did not identify who she was, and there were no allegations against her in the narrative of the Application.

9On November 5, 2014, the respondents filed a Response, which denied the allegations of discrimination, harassment, and sexual advances. In response to the applicant's specific allegations, the respondents stated:

1. The applicant failed to show up for work for eight days without notice. Upon receiving notice that she had a baby, she was granted a maternity leave.
2. After she returned from her leave, she had to be re-trained, but was not demoted. Upon her request, her work week was reduced from five to three days.
3. Mr. Matharu did not subject her to inappropriate comments about women.
4. Mr. Matharu did not subject her to sexual advances.
5. Her employment was terminated solely because of her poor work performance.

10On November 14, 2014, the applicant filed a Reply, which maintained her allegations of discrimination, harassment, and sexual advances. Among other things, she stated that the respondents reduced her work week to three days after she refused to perform cleaning duties which were not part of her job.

11The hearing of the merits of the Application took place over two days. When I arrived in the hearing room on the first day, the applicant's representative immediately requested that I issue an order compelling Ms. Matharu to attend the hearing because she was named as a respondent, but was not present. I informed the parties that I would deal with this issue, along with any other preliminary issues, following my introduction and opening statements by the parties.

12Following my introduction and the parties' opening statements, the respondents requested that Ms. Matharu, who is Mr. Matharu's wife, be removed as a respondent to the Application because, although she is the co-owner of CSM, she does not work in the office, and there are no allegations against her in the Application. In his submissions, the applicant's representative stated that Ms. Matharu should continue to be named as a respondent and be ordered to attend the hearing because it should be brought to her attention that her husband, Mr. Matharu, made sexual advances towards the applicant. In view of the fact that the applicant did not make any allegations whatsoever against Ms. Matharu, I ordered that she be removed as a respondent to the Application. The title of proceeding is amended accordingly.

13During the hearing, I heard the testimony of two witnesses: the applicant and Mr. Matharu. I also admitted a number of documents into evidence, including a corporation profile report, a Record of Employment ("ROE"), drawings of the office layout, warning letters, and a demand letter.

14Following the hearing, I also admitted the applicant's Employment Standards claim into evidence. In cross-examination, the respondents questioned the applicant about whether her Application and testimony were consistent with her Employment Standards claim. I also asked the applicant one question about this matter. She denied that there were any inconsistencies. However, the respondents, who were self-represented, were relying upon a summary of the claim which they had received from the Ministry of Labour, and not the actual claim, which they did not receive. The applicant did not disclose the claim to the respondents or file it with the Tribunal prior to the hearing, and did not have a copy of it with her at the hearing.

15In view of the fact that there was a dispute between the parties about whether there were inconsistencies between the applicant's Application and testimony and her Employment Standards claim, I ordered the applicant to disclose the claim to the respondents and file it with the Tribunal. On consent, the parties agreed that claim would be admitted into evidence, and I could rely upon it. Six and a half weeks after the hearing, the applicant complied with my order.

EVIDENCE

16CSM is a staffing agency which provides drivers and payroll services. CSM is co-owned by Ms. Matharu and N.G., but Ms. Matharu did not work in the office. The office was headed by N.G. and Mr. Matharu, who were the Directors of Operations ("CSM's senior management"). Below N.G. and Mr. Matharu in the office hierarchy were J.D., who hired and dispatched drivers, and two individuals who performed payroll duties.

17The applicant began working for CSM in the fall of 2010 performing payroll duties. She testified that she was a Payroll Supervisor, while Mr. Matharu testified that she was a Payroll Clerk. After the applicant was hired, CSM's senior management hired another individual, G.B., to perform payroll duties. G.B. was trained by the applicant and N.G. The applicant testified that G.B. was a Payroll Assistant, while Mr. Matharu testified that she was a Payroll Clerk like the applicant.

18The applicant testified that in November 2011, she told J.D. and G.B. that she was pregnant. When I asked her whether she told CSM's senior management about her pregnancy, she responded that she had told J.D. and G.B. to tell them. When I asked her if CSM's senior management knew about her pregnancy, she stated that they would have known because J.D. and G.B. would have told them. She did not provide any further reasons how they would have known.

19The applicant was admitted to hospital on the weekend of March 10-11, 2012, because of medical issues relating to her pregnancy. The applicant gave birth to her baby on Sunday, March 18, 2012. She testified that her baby was born 10 weeks prematurely. She stated that she called G.B. on the same day to tell her about her situation. In cross-examination, she admitted that she did not call CSM's senior management to tell them, but stated that G.B. "should" have told them.

20The applicant testified that she returned home on March 21, 2012, and then called the office to ask CSM's senior management for her ROE showing that she was taking a maternity leave. She stated that she spoke with N.G., who told her that the ROE would show that she quit her job. She stated that she threatened to call the Ministry of Labour to complain, and that CSM then issued her an ROE which indicated that she was taking a maternity leave. The ROE was issued on April 5, 2012.

21Mr. Matharu testified that he and N.G. had presumed that the applicant had quit her job because she did not show up for work for eight days, and her husband then called the office on March 20, 2012 and stated that she would not be returning to work, but did not mention that she had been pregnant and had given birth. He stated that the first time that the applicant told him that she was pregnant and had given birth was on March 22, 2012, when she called the office. He stated that CSM's senior management ultimately decided to issue her an ROE, which indicated that she was taking a maternity leave, because if it turned out that she had, in fact, given birth, she may have won a case against them at the Ministry of Labour.

22CSM's senior management then hired another person, S.A., to perform the applicant's payroll duties while she was off on maternity leave.

23The applicant's maternity leave lasted approximately one year, and she returned to work at CSM on March 18, 2013. It is undisputed that S.A. left the payroll position a short time after the applicant returned from her maternity leave.

24The applicant testified that when she returned to work, she was demoted. Specifically, she stated, N.G. told her that G.B. was now her boss, she was assigned a different desk, and G.B. and N.G. checked her work. In cross-examination, however, she admitted that she received the same pay that she had received before she went on maternity leave.

25In his testimony, Mr. Matharu denied that the applicant was demoted. He stated that she continued to be a Payroll Clerk, and received the same pay that she had received before she went on maternity leave. He also denied that G.B. became her boss. He stated that they were both Payroll Clerks, but that G.B. and N.G. checked the applicant's work for several weeks until she was up to speed. He admitted that she was assigned to a different desk, but stated that the reason was that she had to be re-trained on CSM's payroll/accounting software.

26It is undisputed that in the summer of 2013, the applicant's work week was reduced from five to three days. The applicant testified that CSM's senior management reduced her work week as part of her demotion. Although the applicant denied that there were inconsistencies between her testimony and her Employment Standards claim, this testimony contradicts a statement in her claim, which states: "... due to harassment and stress I cut down to 24 hrs/week." Mr. Matharu denied that CSM's senior management initiated the reduction of the applicant's work week. He stated she requested the reduction from five to three days because of health-related issues.

27It is undisputed that CSM did not have a cleaner, and that staff were responsible for cleaning the office. The applicant testified that before her maternity leave she was only assigned to clean her desk, but after she returned from her leave she was assigned to clean doors, hallways, and the bathroom. In cross-examination, when asked who was responsible for general cleaning of office, the applicant was evasive, but she eventually named, through a series of questions, J.D., G.B., N.G., and Mr. Matharu as the staff who were responsible for general cleaning. When I asked the applicant who was responsible for cleaning the washroom, she stated that N.G. and Mr. Matharu were. When I asked her whether she used the washroom, she admitted that she did.

28Mr. Matharu testified that the three employees below him and N.G. in the office hierarchy did more of the office cleaning, but that all staff, including himself and N.G., participated, and took turns performing the various tasks, including vacuuming the floor, sweeping the stairs, wiping the desks, cleaning the washroom, and taking the garbage out. He stated that the applicant performed these tasks before her maternity leave, but refused to do so after she returned from her leave. He stated that all the other staff would be cleaning the office, but the applicant refused to participate. He stated that he viewed the applicant's refusal as insubordination, but did not discipline her because he understood that she may have been experiencing stress related to being a new mother.

29The applicant's testimony with respect to the allegations in her Application that Mr. Matharu had subjected her to inappropriate comments about women and sexual advances was brief.

30With respect to inappropriate comments about women, the applicant testified that Mr. Mathura made comments "indirectly" to her. Specifically, she stated that when she was sitting near G.B., Mr. Matharu told G.B. that she (G.B.) should use wax to remove facial and arm hair. She stated that, even though he was talking to G.B., she believes that he was indirectly telling her the same thing. The applicant also testified that on another occasion when G.B. was eating an orange, Mr. Matharu talked about an orange and a banana. She stated that she did not want to repeat the exact words that he used. She did not provide further details or particulars about these alleged incidents.

31With respect to sexual advances, the applicant testified that before she went on her maternity leave, Mr. Matharu would touch female employees, but when he tried to touch her, she told him to stay in his place. Although the applicant denied that there were inconsistencies between her testimony and her Employment Standards claim, this testimony contradicts a statement in her claim, which states that prior to her maternity leave, "It was a pleasant place to work and I had never run into any problems." The applicant also testified that after returning from her leave, Mr. Matharu would talk about "figures" and "beauty" while he was watching videos in his office. She did not provide further details or particulars.

32In cross-examination, when asked why her legal representative's June 17, 2014 demand letter to the respondents did not allege that Mr. Matharu had subjected her to inappropriate comments about women and sexual advances, the applicant responded that she did not want to open up these issues because it would affect her image in the community. When asked when the sexual advances occurred, the applicant was evasive. She responded that she was unable to provide dates, but that an incident involving N.G., G.B. and S.A. occurred at the end of March 2013. This alleged incident did not involve Mr. Matharu, and she did not clarify what exactly happened.

33In his testimony, Mr. Matharu denied that he had subjected the applicant to inappropriate comments about women and sexual advances, and denied the specific allegations that she made about his conduct in her testimony.

34On May 10, 2013, October 29, 2013, and January 7, 2014, the applicant was issued Warning Letters about errors that she had made when she was performing her payroll duties. In her testimony, the applicant did not deny that she had made errors. Rather, she stated, G.B. and N.G., who double-checked her work, should have also been held responsible, and they were not. In his testimony, Mr. Matharu denied that G.B. and N.G. were double-checking the applicant's work when the Warning Letters were issued to her. He stated that G.B. and N.G. double-checked the applicant's work for a few weeks after she returned from her maternity leave to ensure that she was up to speed, but that the double-checking, which was time-consuming, then ended, and she was expected to perform her duties error-free.

35It is undisputed that on January 7, 2014, Mr. Matharu handed the applicant the third Warning Letter and terminated her employment. The applicant testified that Mr. Matharu gave her the Letter, and told her that she was not wanted anymore and to leave. She stated that CSM's senior management must have decided during her maternity leave to terminate her employment and replace her with G.B. Mr. Matharu testified that he had no intention firing the applicant when he handed her the Warning Letter, but she tried to blame G.B. and N.G. for not checking her work, and became loud and combative, so he fired her. He stated that he would not have fired the applicant if she had admitted that she had made a mistake, and had not become loud and combative. He stated that he understood that she may have been experiencing stress related to being a new mother, but she had become too insubordinate. In her reply evidence, the applicant did not dispute Mr. Matharu's testimony about her blaming G.B. and N.G. for not checking her work, and becoming loud and combative.

36Mr. Matharu testified that after he terminated the applicant's employment, he hired S.K.G., who is also a woman, to replace her. In her reply evidence, the applicant did not dispute this testimony.

ANALYSIS

37The Application relates to sections 5, 7, 9, and 10 of the Code, which provide:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of... sex....

(...)

7.(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex... by his or her employer or agent of the employer or by another employee.

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome...

(...)

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

10.(1) In Part I and in this Part,

(...)

"harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

10.(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

38The 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.

39Several 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) 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.

40I 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.

41For the reasons set out below, I found Mr. Matharu to be a more credible witness than the applicant.

Did the respondents discriminate against the applicant on the basis of sex because she took a maternity leave?

42The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The applicant must establish discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 at para. 17.

43In order to establish a case of discrimination, the applicant must prove that (1) she is a member of a group protected by the Code; (2) she was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.) at para. 47, upheld 2012 ONCA 155.

44In the case at hand, there is no dispute that the applicant is a woman who took a maternity leave. There is also no dispute that she was subjected to adverse treatment by the respondents when they terminated her employment. The main dispute is whether her sex, and specifically, the fact that she took a maternity leave, was a factor in the adverse treatment.

45I find that the applicant did not tell CSM's senior management that she was pregnant until March 2012, when she gave birth to her baby prematurely and phoned the office to obtain an ROE. In the applicant's testimony, by her own admission, she did not tell CSM's senior management that she was pregnant. Rather, her testimony was that in November 2011, she told two of her co-workers, G.B. and J.D., to tell CSM's senior management that she was pregnant. However, this testimony lacks credibility. Given the small size of the office (two senior managers and three employees), and the statement in her Employment Standards claim that before she went off on a maternity leave, the office was a pleasant place to work and she had never run into any problems, there was no reason for her to have notified CSM's senior management of her pregnancy in a roundabout way through two of her co-workers. I also found it peculiar that the applicant maintained that CSM's senior management would have known that she was pregnant through her co-workers, and did not testify that she was visibly pregnant. In his opening statement, the applicant's representative also admitted that Mr. Matharu and N.G. may not have known about the applicant's pregnancy, which suggests to me that, physically or through clothing choice, she was not visibly pregnant when she was in the office. I therefore prefer Mr. Matharu's testimony, which was not shaken in cross-examination, that he was not told about the applicant's pregnancy until she called the office to obtain an ROE.

46I also find that the applicant did not show up for work for a week in March 2012, she did not contact anyone in the office to explain her absence, and CSM's senior management presumed that she had quit her job. It is undisputed that the applicant did not show up for work during the week of March 12-16, 2012 because she was having pregnancy-related health issues and gave birth to her baby prematurely. Furthermore, her testimony that she called G.B. on Sunday, March 18, 2012, to tell her about her situation is essentially an admission that she was off work for a week without notifying anyone in the office of the reason for her absence. I also accept Mr. Matharu's testimony, which was not shaken in cross-examination, that he had presumed that the applicant had quit her job, and only became aware she had given birth a few days after the birth.

47In these circumstances, the fact that CSM's senior management initially resisted issuing the applicant an ROE indicating that she was taking a maternity leave was not discriminatory. In my view, given that she did not show up for work for a week without contacting anyone in the office, it was reasonable for them to presume that she had quit her job. Furthermore, given that she did not tell them that she was pregnant and had given birth to her baby prematurely until after the fact, it was not unreasonable for them to be surprised and take some time to grapple with the new information that she had provided them. Furthermore, the issue was resolved approximately two weeks later when they issued her an ROE indicating that she was taking a maternity leave.

48I also find that the applicant was not demoted after she returned from her maternity leave in March 2013. The applicant and Mr. Matharu provided conflicting testimony about whether her job status was lowered or remained the same after she returned. However, given that it is undisputed that she continued to perform payroll duties and receive the same pay that she received before she went on a maternity leave, I prefer his testimony on this matter. They also provided conflicting testimony about whether her work week was reduced from five to three days unilaterally by CSM's senior management or at her initiative after she returned. However, given that her testimony directly contradicts a statement in her Employment Standards claim that she initiated the reduction in her work week, I prefer his testimony on this matter. They also provided conflicting testimony about whether she was required to perform more or the same cleaning duties after she returned. However, given her evasiveness in cross-examination, and the fact that her ultimate position, in response to several questions, was that everyone in the office, including CSM's senior management, was responsible for general cleaning, but she was not, which made no sense (she failed to provide any reason why she would have been the sole person excluded from such duties), I prefer his testimony on this matter.

49I also find that between May 2013 and January 2014, CSM's senior management issued the applicant three Warning Letters, which were justified because she had made errors when she was performing her payroll duties. I found it telling that in her testimony, the applicant did not deny that she had made errors, and tried to focus instead on questioning why G.B. and N.G. were also not held responsible for the errors. In my view, this was an admission that she had made errors. Furthermore, she and Mr. Matharu provided conflicting testimony about whether G.B. and N.G. were double-checking her work, but, even if they were, I cannot accept her suggestion that they were equally responsible for errors on files where she was responsible for doing the main work.

50Finally, I find that Mr. Matharu terminated the applicant's employment because she acted in an insubordinate manner towards him when he handed her the third Warning Letter on January 7, 2014. The Warning Letter does not mention terminating the applicant's employment, which supports Mr. Matharu's testimony that he had no intention of firing the applicant when he handed it to her. Furthermore, the applicant did not dispute Mr. Matharu's testimony that after he handed her the Letter, she blamed G.B. and N.G. for not checking her work, and became loud and combative. It is not difficult to see, in these circumstances, how the applicant's behaviour resulted in the termination of her employment.

51In view of the fact that the respondents terminated the applicant's employment approximately 9½ months after she returned from her maternity leave, and my findings above that CSM's senior management did not demote the applicant after she returned from her maternity leave, issued her three justified Warning Letters, and had reasonable grounds for terminating her employment, I find that there is insufficient evidence to establish that the respondents terminated her employment because she took a maternity leave.

52The applicant alleged that CSM's senior management must have decided during her maternity leave to terminate her employment and replace her with G.B., but this makes no sense given that the respondents had two employees performing payroll duties before she took a leave, during her leave, after she returned from her leave, and after her employment was terminated. Specifically, there were two employees (the applicant and G.B.) performing payroll duties before she took her leave, a new employee (S.A.) was hired temporarily to replace her during her leave, the new employee (S.A.) left the position shortly after the applicant returned from her leave, and the CSM's senior management hired a new employee (S.K.G.) to perform payroll duties after they terminated the applicant's employment.

53Accordingly, the applicant's allegation that the respondents discriminated against her on the basis of sex because she took a maternity leave is dismissed.

Did the respondents subject the applicant to harassment because of her sex and sexual advances?

54In order to establish a case of harassment because of sex, the applicant must prove that (1) Mr. Matharu was her employer, her employer's agent, or another employee; (2) Mr. Matharu harassed her by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to have been known to be unwelcome; (3) Mr. Matharu harassed her in the workplace; and (4) Mr. Matharu harassed her because of her sex. See ss. 7(2) and 10(1) of the Code.

55It is undisputed that Mr. Matharu was the applicant's employer and that the alleged incidents occurred in the workplace. However, in my view, the applicant's testimony about these alleged incidents was too vague to establish a case of harassment because of sex. Specifically, the applicant's testimony that Mr. Matharu made indirect comments to her via G.B. about using wax to remove facial and arm hair, and he talked about an orange and a banana when G.B. was eating an orange, was simply too vague to establish that Mr. Matharu engaged in a course of vexatious comment or conduct towards the applicant that was known or ought reasonably to have been known to be unwelcome, and that his conduct towards her was because of her sex. The applicant did not provide further details or particulars about these alleged incidents, including when they occurred and what exactly was said.

56In order to establish a case of unwelcome sexual advances, the applicant must prove that (1) Mr. Matharu made sexual advances towards her; (2) he was in a position to confer, grant or deny a benefit or advancement to her, and (3) he knew or ought reasonably to have known that the advances were unwelcome. See s. 7(3) of the Code.

57It is undisputed that as a member of CSM's senior management, Mr. Matharu was in a position to confer, grant or deny a benefit or advancement to the applicant. However, in my view, the applicant's testimony about these alleged incidents was not credible because it was inconsistent with a prior statement, and/or was too vague to establish a case of unwanted sexual advances. Specifically, the applicant's testimony that before she went on her maternity leave, Mr. Matharu would touch female employees, but when he tried to touch her, she told him to stay in his place, contradicts a clear statement in her Employment Standards claim that prior to her leave, the office was a pleasant place to work and she had never run into any problems. Furthermore, this testimony, and her testimony that after returning from her leave, Mr. Matharu would talk about "figures" and "beauty" while he was watching videos in his office, are simply too vague to establish that he made sexual advances towards her, and knew or ought reasonably to have known that the advances were unwelcome. The applicant did not provide further details or particulars about these alleged incidents, including when they occurred and what exactly was said, and when pressed on this matter in cross-examination, she was evasive.

58The applicant and her representative argued that she was unable to provide details and particulars of the incidents of harassment because of sex and sexual advances because she is from the Sikh community where women cannot talk openly about such matters. This may be true. On the other hand, the respondent argued that the applicant made vague allegations against Mr. Matharu and improperly named his wife as a respondent simply as a strategy to try to coerce them into settling the case. This may also be true. However, at the end of the day, whatever the reason was, the Tribunal cannot make findings of harassment because of sex and sexual advances based on vague allegations.

59Accordingly, the applicant's allegations that the respondents subjected her to harassment because of her sex and sexual advances are dismissed.

ORDER

60The Application is dismissed.