Harassment – Not Simply A Feeling
THE BURDEN OF PROOF EXISTS FOR THE COMPLAINANT
Ms Mora was employed as a pharmacy technician at a retail location. Mr Karan joined that location as a pharmacist. Ms Mora complained that she had been harassed and then subsequently complained that her Employer had failed to take appropriate steps to deal with her harassment complaint. The Employer denied that Ms Mora had been harassed and said that it had conducted a proper investigation of her complaints.
Ms Mora alleged that over the period of two years during which they worked together, Mr Karan made verbal comments to her, which amounted to harassment on the basis of age and sex.
Ms Mora’s first example constituted a comment made by Mr Karan soon after he came to be employed at the same location. Mr Karan said that he liked his new job and that he intended on staying at the pharmacy. She did not provide any detail as to how this comment harassed her on the basis of age or sex.
Ms Mora testified that there was further harassment when Mr Karan told her he might call head office and say bad things about her and that head office would believe him as the Employer needed pharmacists and did not need pharmacy technicians. Mr Karan denied the allegation but did indicate he had concerns with Ms Mora’s work performance which he addressed with management.
Ms Mora testified that Mr Karan told her that the job of pharmacy technician was an easy job and that he wanted it for his wife. Mr Karan denied the comments and indicated that his wife ended up working in the same pharmacy as a pharmacist. She said he made comments about the value of her house and her RRSP’s. Ms Mora asked Mr Karan how he would know where she lived and asked if he had driven by her home. He did not answer but Ms Mora took his body language to mean that he had indeed driven past her home.
Ms Mora said he was always complaining and putting her down in any way he could.
27 months later
Ms Mora testified that 27 months later Mr Karan yelled at her “What kind of hormones are you taking?” Ms Mora understood that comment to be a reference to menopause and to her age. He had earlier asked her what she was doing to remain so youthful, so young looking. Mr Karan denied making the comment or yelling at her. He indicated he had filled prescriptions for her on occasion so had some access to her medication information.
Ms Mora said that there had been one or two meetings where she, the store manager, Mr Karan and, the pharmacy supervisor had discussed matters relating to the difficulties between herself and Mr Karan. She said that she had not reported her specific concerns to the Employer but, instead, she had indicated that Mr Karan was treating her unfairly, yelling at her, and scolding her. She said that Mr Karan brought up her poor job performance. She testified that nothing was solved at the meetings. Management testified that they addressed the situation appropriately.
Ms Mora filed a Human Rights complaint and that was examined as part of the Arbitration. During examination, Ms Mora acknowledged that in her complaint she had deliberately provided incorrect dates for some of the alleged incidents of harassment. Ms Mora had dated some of the incidents 2 years later than they had actually occurred to make them appear more recent. Ms Mora testified that she felt she had to take these steps, in order to protect herself because no one would give her any protection.
Ms Mora testified that she had been off work for a significant period of time and attributed that time off to dealing with Mr Karan. She indicated that the interactions with him had caused a variety of medical disorders, including nausea and vomiting when considering a return to the workplace.
During cross examination at the Arbitration, she stated that the concern she reported to management about Mr Karan was related to him being ‘short’ with her and raising his voice. She agreed that Mr Karan indicated he had concerns with her job performance at that meeting. She also agreed that Mr Karan had said that if he offended her he was sorry and that he did not intend to offend her. She agreed that she and Mr Karan were told that they needed to be civil to one another and work together.
Ms Mora testified that she had requested a meeting with Ms Shore (the Employer’s Senior Manager, Industrial Relations) with a Union representative. She said she had wanted to meet with her because all the other persons investigating her complaints had been men. Ms Shore asked her about the events and they had a full meeting about the issues. Ms Shore asked if anyone had witnessed the events and Ms Mora took that to mean that she did not believe her.
Ms Mora failed to respond frequently during the cross examination and needed to be asked questions multiple times. When advised that witnesses contradicted her testimony, Ms Mora frequently responded that they were not truthful persons.
Ms Mora wrote several letters to others within the organization complaining that she had been harassed and complaining that the Employer had failed to respond to her harassment complaint. The Arbitrator found that the letters uniformly “stretched the truth.” She characterized the issues as being ignored by management. A number of her comments were contrary to her own evidence at the hearing.
The Arbitrator examined each of the reported incidents and weighed them against the Human Rights Code and the Collective Agreement. Ms Mora had complained that she had been harassed on the basis of age and sex.
He concluded that harassment had notoccurred.
Further, the Arbitrator looked at the credibility of the main parties. Henoted that Ms Mora was willing to lie on her Human Rights Code complaint. He also noted her willingness to shape her evidence to her favor both in her letters to the Employer and at the hearing. He found that Ms Mora was not a direct and forth right witness at the hearing. He found Ms Mora lacked credibility.
The arbitrator found Mr Karan to be a credible witness.
The Arbitrator found the Employer did conduct a reasonable investigation and reached a conclusion that no harassment took place based on its review of the evidence. The Employer reviewed the matter on at least two further occasions and, in each instance, reaffirmed its earlier conclusion. The arbitrator stated “I can find no fault with the Employer’s investigation.” The arbitrator concluded “both the grievance and the complaint under the Code are dismissed.”