Worker hadn't previously mentioned her own concerns until after warning; breached confidentiality
The Ontario Labour Relations Board has dismissed a worker’s claim that her firing following an investigation into a complaint against her was a reprisal for her own complaint.
The worker was employed with Planta Queen, a vegan restaurant in Toronto that was part of a chain of North American restaurants. She initially worked as a hostess when hired in February 2020 before becoming a server in April 2022.
On May 4, 2023, a colleague of the worker who was employed as a kitchen leader and chef emailed a human resources representative with a complaint about the worker. According to the colleague, the worker sent a message to his girlfriend on Instagram saying that the worker had been flirting with her since May 2022. The worker went on to say that she wasn’t aware that the colleague had a girlfriend and she didn’t actively pursue the colleague, and she was aware of their breakup and she deserved “so much better.”
The colleague told the HR representative that he never shared anything about his personal life at work and he didn’t know how the worker knew about his girlfriend. He said that the worker kept telling everyone at work that he flirted with her it was affecting his mental health. That day, his staff told him that she was still telling people that he was trying to flirt with her and it makes her uncomfortable, he said, adding that he didn’t talk to her.
Employer investigation
On May 12, two HR representatives met with the worker, explaining that they were investigating a complaint that she had harassed the colleague and made him uncomfortable. The worker replied that the colleague made her uncomfortable and asked for more time to think about the matter. They agreed and met again on May 15.
At the second meeting, the worker said that she believed that it was a personal matter that didn’t affect her ability to do her job or the colleague’s. She thought there was a “flirtatious vibe” between them but it might not be detectable by co-workers and it shouldn’t have been brought to the restaurant’s attention.
The worker acknowledged sending messages to the colleague’s girlfriend, which she claimed weren’t harassing or untruthful. She had seen “concerning postings” on the girlfriend’s Instagram page and co-workers were talking about whether the colleague was in a relationship or had broken up.
At a third meeting on May 19, the HR representatives told the worker that her behaviour towards the colleague constituted workplace harassment as defined by Planta’s workplace violence and harassment policy. They reviewed the definition – which closely followed the definition of harassment in the Ontario Occupational Health and Safety Act (OHSA) - and the worker understood why her actions could be seen as harassment.
Final warning to worker
The worker received a copy of the investigation report and a final warning letter advising her to keep the matter confidential and “future violations of the policy will be subject to disciplinary action, up to and including termination of employment.”
On May 21, the worker responded to an email summary of the meeting and warning, asking clarification on what she was being accused of. The reply stated that the colleague had been made to feel uncomfortable in the workplace, to which the worker had no questions.
The HR representatives met with the worker again on June 5, telling her that they had learned that she had contacted someone on social media and told him that the colleague had been flirting with her. They had also interviewed two witnesses at the restaurant who confirmed that the worker had told them that the colleague had flirted with her, had a crush on her, and made her feel uncomfortable. The worker replied on June 9 that she had just told a friend that the colleague made her uncomfortable and she had “witnessed a pattern of Planta invalidating women and protecting men.”
She alleged that the colleague had been constantly staring at her over the past year, talking to her, invading her personal space, and showing signs of jealousy and possessiveness towards other male employees.
An HR representative replied that the worker had not mentioned any of those concerns previously and her interactions with the colleague didn’t affect her ability to work.
Worker contacted witnesses
On July 1, the colleague emailed HR to advise that the worker had messaged another co-worker to ask him to be a witness that she “didn’t do anything” to harass him. The HR representative advised her of this allegation along with copies of two messages the worker had sent to two co-workers. The worker admitted to writing the messages, along with a third, requesting them to support her version of events.
On July 14, Planta Queen terminated the worker for violating its code of conduct and confidentiality and retaliation policy, as well as tampering with an investigation by approaching witnesses.
The worker made an application under the OHSA alleging that Planta Queen had terminated her employment as a reprisal for her complaint of harassment by a colleague. She added that Planta Queen had a history of failing to listen to women’s complaints of harassment.
The board noted that for a reprisal complaint under the OHSA to be successful, the worker must have sought enforcement or compliance with the OHSA, been subject to discipline, dismissal, a threat or intimidation, and there be a link between them.
No formal complaint from worker
However, the board found that the worker didn’t attempt to seek enforcement of the OHSA. Planta Queen investigated the colleague’s claim in May 2023 and the worker didn’t make any reference to the colleague making her uncomfortable in the meetings or emails with HR. Her June 9 email referred to the colleague making her uncomfortable, but his wasn’t a request for a harassment investigation, as one had already occurred and resulted in a final warning letter to the worker, said the board.
In addition, the worker had filed a harassment complaint a year earlier, so she was familiar with the procedure to do so, the board said, adding that the worker told the HR representatives that she believed it was a personal matter that shouldn’t have been brought to them.
The board determined that the worker did not seek any compliance or enforcement of the OHSA, so her termination was not a reprisal. The worker’s application was dismissed. See Hana Nizam v. Planta Queen, 2024 CanLII 2081.
