Worker claimed pharmacist disciminated against her age and sex after he raised concerns about her job performance
A pharmacist who expressed displeasure with a pharmacy technician’s job performance did not discriminate against her, the Ontario Arbitration Board has ruled. Mira Klobucar of Windsor, Ont., began working for Zehrs Markets in 1995. She became a pharmacy technician in 2001, working alongside Bassam Zayat, a staff pharmacist for Zehrs.
Klobucar and Zayat were often the only pharmacy employees on duty in the small store and their working relationship became strained. Klobucar claimed soon after Zayat began working at the store, he told her he liked the job and intended to stay there. She claimed he said other things to her, including: threatening to call head office and say bad things about her; he wanted his wife to take the pharmacy technician job and Klobucar was old enough to retire and had a comfortable life; yelling at her and putting her down; saying “What kind of hormones are you on?”
Klobucar complained all of these comments were harassment and discriminatory based on her age and sex.
On Sept. 16, 2004, Klobucar claimed Zayat yelled at her and told her to pick up medications for the pharmacy. Though she had done it before, she refused this time. Zayat told the manager, who said she didn’t have to do it. Around the same time, Zayat told her not to use the computer but later yelled at her for not helping on the computer. At the meetings, Klobucar said Zayat was treating her unfairly, though she hadn’t reported it. Zayat said her job performance was poor. They agreed to be more civil to each other, but, in late October 2004, there was an incident where two Tylenol 3 pills were found set aside in a drawer. No one accused her of anything, but Zayat threatened to do a narcotics count to see if anything was missing from the pharmacy. Klobucar asked the supervisor to be transferred to another store and on Oct. 23, 2004, she went on leave, claiming the stress of working with Zayat made her physically ill. She filed a grievance with her union on Oct. 29, 2004, and a human rights complaint on Feb. 10, 2005. Her transfer was granted and when she returned to work at another store in March 2005 she got along well with staff, though she said she still had anxiety problems.
Zayat denied making the comments reported by Klobucar but said he had raised concerns about her job performance both with her and eventually their supervisor. After she refused to pick up pills in September, he never asked her again. He said she had poor computer skills and had attempted to get training for her. He denied threatening a narcotics count, claiming he only discussed the value of narcotics on the street with her after seeing a presentation on it. He also denied he ever raised his voice with her and did not threaten to report her to the head office.
Klobucar’s supervisor said the first he had heard of any problems was in August 2004 from a clerk, and he looked into it. He was told it had to do with something else and not harassment, so he didn’t follow up with her.
After Klobucar filed her grievance and human rights complaint, Zehr’s launched an investigation. It found no evidence of harassment and this was backed up by an independent harassment investigator.
The arbitrator found little in Zayat’s treatment of Klobucar that could be considered harassment or discrimination. Noting harassment must be “vexatious comment or conduct” which is unwelcome, the arbitrator said Zayat’s comments did not meet those qualifications. Stating he liked it at the store and wanted to stay had no link to Klobucar’s age and sex and he could not have known it would be unwelcome. There was also no link to any “prohibited ground of harassment” in his comments about his wife working there as a pharmacy technician.
The arbitrator found Zayat to be a more reliable witness than Klobucar, who frequently avoided questions and reluctantly answered others. She altered the dates of the alleged harassment in her complaint and stretched the truth in letters to Zehrs management about it. Zayat, on the other hand, was calm and straightforward with his answers. Because of this, the arbitrator found Zayat to be a more reliable witness and accepted his assertion he didn’t threaten her, yell at her or make a comment about her hormones.
The arbitrator concluded none of the comments Zayat did make could be considered harassment, separately or together. There was no sufficient link to her age or sex to be considered a breach of the Human Rights Code.
“Before (Zehrs) began to look into Zayat’s concerns about (Klobucar’s) job performance, there was no evidence that (she) had mentioned anything to anyone about any inappropriate comments made to her by Zayat,” the arbitrator said. “That fact does suggest (she) came late to the conclusion that Zayat’s comments were harassment.
However, even looking at all the comments together, they do not amount to harassment und the collective agreement or the Human Rights Code.”
The arbitrator also found, since no harassment took place, Zehrs’ findings were correct and its investigation was reasonable.
For more information see:
• Zehrs Markets Inc. v. U.F.C.W., Locals 175/633, 2007 CarswellOnt 1847 (Ont. Arb. Bd.).
Klobucar and Zayat were often the only pharmacy employees on duty in the small store and their working relationship became strained. Klobucar claimed soon after Zayat began working at the store, he told her he liked the job and intended to stay there. She claimed he said other things to her, including: threatening to call head office and say bad things about her; he wanted his wife to take the pharmacy technician job and Klobucar was old enough to retire and had a comfortable life; yelling at her and putting her down; saying “What kind of hormones are you on?”
Klobucar complained all of these comments were harassment and discriminatory based on her age and sex.
On Sept. 16, 2004, Klobucar claimed Zayat yelled at her and told her to pick up medications for the pharmacy. Though she had done it before, she refused this time. Zayat told the manager, who said she didn’t have to do it. Around the same time, Zayat told her not to use the computer but later yelled at her for not helping on the computer. At the meetings, Klobucar said Zayat was treating her unfairly, though she hadn’t reported it. Zayat said her job performance was poor. They agreed to be more civil to each other, but, in late October 2004, there was an incident where two Tylenol 3 pills were found set aside in a drawer. No one accused her of anything, but Zayat threatened to do a narcotics count to see if anything was missing from the pharmacy. Klobucar asked the supervisor to be transferred to another store and on Oct. 23, 2004, she went on leave, claiming the stress of working with Zayat made her physically ill. She filed a grievance with her union on Oct. 29, 2004, and a human rights complaint on Feb. 10, 2005. Her transfer was granted and when she returned to work at another store in March 2005 she got along well with staff, though she said she still had anxiety problems.
Zayat denied making the comments reported by Klobucar but said he had raised concerns about her job performance both with her and eventually their supervisor. After she refused to pick up pills in September, he never asked her again. He said she had poor computer skills and had attempted to get training for her. He denied threatening a narcotics count, claiming he only discussed the value of narcotics on the street with her after seeing a presentation on it. He also denied he ever raised his voice with her and did not threaten to report her to the head office.
Klobucar’s supervisor said the first he had heard of any problems was in August 2004 from a clerk, and he looked into it. He was told it had to do with something else and not harassment, so he didn’t follow up with her.
After Klobucar filed her grievance and human rights complaint, Zehr’s launched an investigation. It found no evidence of harassment and this was backed up by an independent harassment investigator.
The arbitrator found little in Zayat’s treatment of Klobucar that could be considered harassment or discrimination. Noting harassment must be “vexatious comment or conduct” which is unwelcome, the arbitrator said Zayat’s comments did not meet those qualifications. Stating he liked it at the store and wanted to stay had no link to Klobucar’s age and sex and he could not have known it would be unwelcome. There was also no link to any “prohibited ground of harassment” in his comments about his wife working there as a pharmacy technician.
The arbitrator found Zayat to be a more reliable witness than Klobucar, who frequently avoided questions and reluctantly answered others. She altered the dates of the alleged harassment in her complaint and stretched the truth in letters to Zehrs management about it. Zayat, on the other hand, was calm and straightforward with his answers. Because of this, the arbitrator found Zayat to be a more reliable witness and accepted his assertion he didn’t threaten her, yell at her or make a comment about her hormones.
The arbitrator concluded none of the comments Zayat did make could be considered harassment, separately or together. There was no sufficient link to her age or sex to be considered a breach of the Human Rights Code.
“Before (Zehrs) began to look into Zayat’s concerns about (Klobucar’s) job performance, there was no evidence that (she) had mentioned anything to anyone about any inappropriate comments made to her by Zayat,” the arbitrator said. “That fact does suggest (she) came late to the conclusion that Zayat’s comments were harassment.
However, even looking at all the comments together, they do not amount to harassment und the collective agreement or the Human Rights Code.”
The arbitrator also found, since no harassment took place, Zehrs’ findings were correct and its investigation was reasonable.
For more information see:
• Zehrs Markets Inc. v. U.F.C.W., Locals 175/633, 2007 CarswellOnt 1847 (Ont. Arb. Bd.).
