Khalifa v. Indian Oil and Gas Canada

Khalifa v. Indian Oil and Gas Canada
Collection
Canadian Human Rights Tribunal
Date
2010-08-24
Neutral citation
2010 CHRT 21
File number(s)
T1334/6408
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
MELISSA KHALIFA
Complainant
- and - CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and - INDIAN OIL AND GAS CANADA
Respondent
DECISION
2010 CHRT 21 2010/08/24
MEMBER: Athanasios Hadjis
I. WHAT FACTS DOES MS. KHALIFA ALLEGE IN HER COMPLAINT?
II. WHAT IS THE LAW REGARDING MS. KHALIFA'S CLAIM OF DISCRIMINATION WITH RESPECT TO HER DISMISSAL?
A. Has Ms. Khalifa established a prima facie case that IOGC committed a discriminatory practice pursuant to s. 7 of the CHRA, in terminating her employment on August 2, 2005?
B. Has IOGC provided a reasonable explanation for the otherwise discriminatory behaviour?
(i) What were Ms. Khalifa's alleged shortcomings regarding her attendance and punctuality?
(ii) What were the indicators of Ms. Khalifa's declining work performance?
(iii) How did Ms. Khalifa develop a tense relationship with, and show disrespect towards, Ms. Murphy?
(iv) What is IOGC's explanation regarding the termination of Ms. Khalifa's contract?
(v) Did Mr. Currie and Ms. Murphy discuss Ms. Khalifa's family status with her and was it a factor in their conduct and decisions regarding her?
(vi) Is IOGC's explanation reasonable or just a pretext for otherwise discriminatory practices?
III. WHAT IS THE LAW REGARDING MS. KHALIFA'S CLAIM OF HARASSMENT?
A. Has Ms. Khalifa established all of the conditions needed to make out a case of harassment?
[1] Melissa Khalifa alleges that due to her family status as a single mother of four children, Indian Oil and Gas Canada (IOGC) treated her differently in the course of her employment, and ultimately terminated her. She also alleges that she was harassed during her employment on the same discriminatory basis.
[2] In the decision that follows, I initially set out the facts as alleged and presented by Ms. Khalifa and find that she established a prima facie case that her termination was discriminatory under s. 7 of the Canadian Human Rights Act (CHRA). I then deal with IOGC's explanation, which I determine to be reasonable and not pretextual. Finally, I address Ms. Khalifa's harassment complaint, under s. 14 of the CHRA, and find that the incidents she raises do not constitute harassment within the meaning of the CHRA.
I. What facts does Ms. Khalifa allege in her complaint? [3] IOGC manages and administers oil and gas resources that are found on Indian reserve lands. It is a special agency within the Department of Indian and Northern Affairs. Ms. Khalifa worked in various capacities at IOGC's offices south of Calgary, from October 25, 2002, until August 2, 2005. Throughout this period, however, she was never formally an employee of IOGC, but rather an employee of a staffing agency named Spirit Staffing and Consulting Inc. (Spirit Staffing).
[4] IOGC informed the Tribunal at the hearing that it was not claiming that Ms. Khalifa's employment arrangement ousted the Tribunal of its jurisdiction to hear the complaint. I understand IOGC's position to therefore mean that it accepts Ms. Khalifa's relationship with IOGC as constituting employment within the meaning of ss. 7 and 14.
[5] Spirit Staffing had a standing offer with Public Works and Government Services Canada to provide temporary help services to the Government of Canada. Accordingly, government agencies, such as IOGC, had the authority to call-up temporary help services from Spirit Staffing on an as-needed basis.
[6] Ms. Khalifa's first assignment at IOGC was as a receptionist within IOGC's Professional and Corporate Services Division. IOGC renewed her initial call-up and she was eventually asked to replace the Production Division's administration officer, who had transferred to another job. The Production Division was headed by the General Manager of Production, Bill Currie.
[7] In 2004, Mr. Currie was named Acting Chief Executive Officer (CEO) of IOGC, a position that came within the agency's Executive Division. The CEO position was already staffed with an administration officer. According to Ms. Khalifa, Mr. Currie nevertheless had [her] moved over, on October 12, 2004, to the Executive Division, to work under the supervision of another manager. She was assigned tasks relating to communications, the production of annual reports as well as any other sundry tasks that Mr. Currie also may have asked of her.
[8] Early in 2005, Mr. Currie returned to his position as General Manager of Production. In February 2005, he interviewed and hired, as a full-time IOGC employee, his new administration officer, Laurie Murphy. Ms. Khalifa testified that although Mr. Currie now had a full-time administration officer in the Production Division, he nonetheless again arranged to have Ms. Khalifa return to work for him in the division as well, commencing April 1, 2005. This contract or call-up was scheduled to end on August 19, 2005. Her designated supervisor, according to the contract, was Ms. Murphy.
[9] Ms. Khalifa testified that she questioned at the time whether her services were needed in the division, given the tasks that Ms. Murphy was already performing, but Mr. Currie advised Ms. Khalifa to continue working under the new call-up just the same. She took his advice and was pleased to discover that she was being assigned projects she enjoyed doing. Furthermore, aside from her Production Division tasks, Ms. Khalifa was also being given overtime work from the Executive and Land Divisions, which she found very satisfying as well.
[10] In contrast, Ms. Khalifa claims to have observed, by the end of April 2005, that Ms. Murphy was unhappy in her position and the rather mundane administrative tasks she was being assigned, such as making travel arrangements for Mr. Currie. According to Ms. Khalifa, Ms. Murphy was envious of the tasks being given to Ms. Khalifa, and began expressing her disgruntlement through discriminatory statements directed at Ms. Khalifa, relating to her family status. Ms. Khalifa was a single parent of four children, three of whom were minors at the time. Issues relating to their schooling or health would occasionally arise, resulting in her having to be absent from work. In addition, one of her children had a learning disability, which required that she sometimes take him to appointments with various specialists.
[11] One day in late April 2005, Ms. Khalifa was called away from work to take care of a matter at school regarding one of her children. She testified that when she subsequently informed Ms. Murphy (whose office was in the cubicle adjoining hers) about this situation, Ms. Murphy responded by telling her that as a single parent, she should consider looking for work elsewhere, in a place that is better suited for a single parent.
[12] Ms. Khalifa claims that she was so shocked by this comment that she immediately rose from her work desk and walked over to the office of Darryl Jaques, who was a senior engineer with IOGC. His office was situated across the hall from hers. Ms. Khalifa closed the door and told him, Would you believe what Laurie Murphy just said to me?, and recounted to him Ms. Murphy's statement. Ms. Khalifa testified that Mr. Jaques suggested she take her concerns directly to Mr. Currie.
[13] Ms. Khalifa called Mr. Jaques as a witness at the hearing into her complaint. He recalled Ms. Khalifa complaining about the hard times she was having with Ms. Murphy as her supervisor, but did not recall her having mentioned any remark by Ms. Murphy relating to Ms. Khalifa's single parent status.
[14] Ms. Khalifa testified that a day or two later, she spoke to Mr. Currie about Ms. Murphy's remarks and was flabbergasted by his response. She claims that Mr. Currie suggested to her that perhaps Ms. Murphy was looking out for Ms. Khalifa's best interests and that looking for a job elsewhere may be more suitable to her family situation. Ms. Khalifa was also unhappy to hear Mr. Currie then ask her what kind of child care arrangements she had planned for the upcoming summer. She explained to him that she was extending her existing afterschool child care to the full day. She testified that she was unhappy that Mr. Currie did not satisfactorily address her objections to Ms. Murphy's remarks during the meeting.
[15] Ms. Khalifa contends that after her discussion with Mr. Currie, she began to get a sense of the tone and direction of his attitude with respect to her family status. She was surprised by this as there was never any concern expressed about her being a single parent prior to Ms. Murphy's comment.
[16] In the months following Ms. Murphy's comment, Ms. Khalifa observed that when she would bring up some activity regarding her children, Ms. Murphy would breathe a heavy sigh or roll her eyes. In June, 2005, after one of those sighs, Ms. Khalifa challenged Ms. Murphy. She pointed out that Ms. Murphy also had a child and asked why her situation should be treated any differently. Ms. Murphy allegedly replied that in her own case, it was acceptable for her to work because she had a husband's support, whereas Ms. Khalifa did not.
[17] Ms. Khalifa indicated in her testimony that on another occasion, Mr. Currie invited her into his office, though her evidence regarding this meeting was not very clear. She seemed to suggest that Mr. Currie asked her personal questions on this occasion, including where she was living, and commented that he knew how hard it was to be a single parent.
[18] After this conversation, Ms. Khalifa apparently met with Susan McCurdie, who was IOGC's human resources advisor. Ms. Khalifa was not always certain in her testimony about the sequence of events, so it may well be that this meeting took place prior to this last-mentioned conversation with Mr. Currie. Ms. McCurdie's responsibilities included dealing with human rights and harassment issues arising at IOGC. Ms. Khalifa told her about the comments and questioning she had been getting from Mr. Currie and Ms. Murphy, and asked to file a harassment complaint. Ms. McCurdie told her that she could not accept a complaint from her because she was not an IOGC employee, but rather a temporary staff person employed by Spirit Staffing. Ms. McCurdie nonetheless listened to the details provided by Ms. Khalifa. According to Ms. Khalifa, Ms. McCurdie replied that Mr. Currie, as a manager, should have known that it is a big no-no to allow the kind of comments being made by Ms. Murphy and to be raising the types of personal questions that he had been asking Ms. Khalifa.
[19] Ms. McCurdie also suggested that if Mr. Currie were to pose such questions again, Ms. Khalifa should tell him that she is uncomfortable answering and that he should refrain from asking them. On Ms. McCurdie's suggestion, Ms. Khalifa also spoke to Bryan Potter, who was IOGC's manager of contracts and administration, and therefore responsible for the contracting of temporary staff like Ms. Khalifa. Mr. Potter concurred that Ms. McCurdie was not authorized to receive a harassment complaint from Ms. Khalifa. He suggested to Ms. Khalifa, however, that if she was having these difficulties with her supervisor, she could consider seeking work elsewhere within IOGC.
[20] Ms. Khalifa testified that Ms. Murphy's attitude with respect to her family status became so upsetting that on July 22, 2005, she went to Mr. Currie in tears and told him she could no longer take the situation anymore and wanted to leave. The insinuations, comments and questioning about her children were getting to her. She began doubting whether indeed she could cope with working and being a single parent. It was becoming apparent to her that she could not perform properly because of her family needs and was feeling uncomfortable. However, she also testified that the source of her problems was Ms. Murphy's blowing things out of proportion with respect to her inability to meet her work requirements. Mr. Currie urged her during their meeting to be patient. He was leaving on vacation the next day but assured her that he would deal with her concerns upon his return.
[21] On August 2, 2005, which was Mr. Currie's first day back at work after his vacation, he invited Ms. Khalifa into his office for a meeting. It was a short conversation. According to Ms. Khalifa, he told her that being a single parent interfered too much with her work and that her contract was therefore being terminated that day, seventeen days prior to the scheduled end of her call-up (August 19, 2005). She claims she was asked to pack up her stuff and leave. She testified that she then returned to her office cubicle in a state of shock. While she began to collect some of her belongings, she noticed Mr. Currie walking back and forth outside her cubicle, looking in. She found it difficult to stay any longer, so she left IOGC's offices with only a few of her things. She had intended to return and collect the rest of her items, but could not bring herself to do so, so she sent her daughter to pick them up instead.
[22] Ms. Khalifa testified that her work performance at IOGC was always satisfactory or better. Mr. Jaques gave evidence at the hearing that there were no issues with her performance to his knowledge, having always found her helpful. He sometimes served as Acting General Manager of the Production Division, though he had little recollection at the hearing of having supervised her.
[23] Mr. Potter, for his part, testified that Ms. Khalifa had worked within his division when she first came to IOGC as a receptionist. In his view, she had provided excellent service while employed in that position. Ms. McCurdie was Ms. Khalifa's supervisor for about eight of the weeks when Ms. Khalifa was employed at reception. Ms. McCurdie testified that she had no concerns with respect to Ms. Khalifa's performance, punctuality or attendance at the time.
[24] Alexandra Steinke is a communications officer at IOGC who worked within the Executive Division at the same time as Ms. Khalifa. Ms. Steinke testified that Ms. Khalifa was able to deal with any task assigned to her and did a really good job. Ms. Steinke did not apprehend any attendance problems regarding Ms. Khalifa and, based on her perception, believed that Mr. Currie thought the world of Ms. Khalifa.
[25] The owner of Spirit Staffing, Janice Larocque, also testified that IOGC had never complained to her about Ms. Khalifa's performance or attendance. She noted that according to Spirit Staffing's standing offer with the Government of Canada, a temporary staffer cannot be called up for a period in excess of six months. Ms. Khalifa worked at IOGC continuously for almost three years, on a series of different call-ups, which is the longest period that any of Spirit Staffing's employees has ever worked at one employer. Ms. Laroque surmised therefore that Ms. Khalifa's performance must have been good. Since June 2007, Ms. Khalifa has been working within Spirit Staffing's own offices as a receptionist as well as a recruiter. Ms. Laroque testified that Ms. Khalifa is one of the most dedicated employees the firm has ever had, often working overtime and through her lunch hour. There are no issues regarding her attendance or punctuality at work.
[26] During the last call-up prior to the termination of her contract, Ms. Khalifa claims that the services she was providing greatly exceeded what was expected of her. She produced the timesheets that she was filing with Spirit Staffing indicating the numbers of hours worked. Spirit Staffing would pay her remuneration for the services rendered based on these timesheets. The timesheets indicate that during 13 of the 18 weeks that Ms. Khalifa worked in the Production Division in 2005, she also filed timesheets relating to overtime services provided to the Land, Executive and Communication Divisions, ranging in most weeks from 16 to 30 hours per week. This overtime work was in addition to the weekday work.
[27] Ms. Khalifa testified that she had a reasonable expectation of continued employment at IOGC, beyond the expiry of the April to August 2005 call-up, having been told by a representative of the accounting section of the Professional and Corporate Services Division (whose name Ms. Khalifa does not recall) that her services had been budgeted for the remainder of the fiscal year, although the call-ups would still have to be renewed every 20 weeks.
[28] Ms. Khalifa therefore submits that given her more than satisfactory work performance, the only conceivable explanation for the early termination of her call-up must be related to Mr. Currie's and Ms. Murphy's attitude with respect to her family status as a single mother of minor children. She also contends that their behaviour constituted harassment within the meaning of s. 14 of the CHRA. I will deal with each of these two alleged discriminatory practices separately.
II. What is the law regarding Ms. Khalifa's claim of discrimination with respect to her dismissal? [29] It is a discriminatory practice under the CHRA to refuse to continue to employ a person on the basis of her family status (ss. 3 and 7(a)).
[30] A complainant must first establish a prima facie case of discrimination (Ont. Human Rights Comm. v. Simpsons-Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28 (O'Malley)). A prima facie case, in this context, is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour, in the absence of an answer from the respondent. Once the prima facie case is established, the onus then shifts to the respondent to disprove the allegations or provide some other reasonable explanation.
[31] It is not necessary that discriminatory considerations be the sole reason for the actions at issue in order for the complaint to be substantiated. It is sufficient that the discrimination be one of the factors in the employer's decision (Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 at para 7 (F.C.A.); Canada (Attorney General) v. Uzoaba, 1995 CanLII 3589 (F.C.), [1995] 2 F.C. 569 (T.D.)).
[32] In Basi v. Canadian National Railway Company (1988), 9 C.H.R.R. D/5029 at para. 38481 (CHRT), the Tribunal stated that discrimination is not a practice that one would expect to see displayed overtly. A tribunal should therefore consider all circumstances to determine if there exists a subtle scent of discrimination.
A. Has Ms. Khalifa established a prima facie case that IOGC committed a discriminatory practice pursuant to s. 7 of the CHRA, in terminating her employment on August 2, 2005? [33] I am satisfied that Ms. Khalifa has established a prima facie case that her termination was discriminatory. The evidence adduced by her, in support of her allegations, if believed, would be complete and sufficient to justify a verdict in her favour, absent an explanation from IOGC.
[34] She was terminated 17 days prior to the scheduled end of her employment and she alleges that based on her more than satisfactory performance since joining IOGC, as well as the information she had received that her salary had been budgeted for until March 31, 2006, it was reasonable to expect that she would again be called up to work for IOGC after the expiration of the then current call-up.
[35] She testified, in addition, that Mr. Currie openly stated, in their final meeting, that the reason for her termination was the impact her commitments as a single mother were having on her work. His comments were along the same lines as his remarks during their prior meetings, regarding the care of her children. Based on the foregoing, Ms. Khalifa's evidence, if believed, is sufficient to establish prima facie that her family status was a factor in the decision to pre-emptively terminate her contract.
B. Has IOGC provided a reasonable explanation for the otherwise discriminatory behaviour? [36] IOGC contends that Ms. Khalifa's family status was never a factor in the termination of her contract. Rather, IOGC explains that her call-up was ended because of:
her shortcomings with respect to punctuality and attendance, her declining work performance, and the tense relationship that developed with IOGC's permanent staff (namely her supervisor, Ms. Murphy) and the disrespect she showed towards her.
[37] Mr. Currie testified with respect to Ms. Khalifa's April 1, 2005, call-up to work at the Production Division. Her previous call-up was to come to an end on March 31, 2005. He had no intention of using any temporary staff at the Production Division. He testified, however, that a number of people from the other divisions for whom Ms. Khalifa had been providing services wanted to continue using her temporary services but lacked room in their budgets to fund her continued employment. So these individuals asked Mr. Currie to call up Ms. Khalifa through his Production Division, which had a larger available budget than the other divisions, and effectively fund her activities through his budget. Mr. Currie, in fact, asserted in his evidence that but for his consenting to allocate his division's funds for the performance of work principally for other divisions, her call-up would not have been renewed and her services for IOGC would have ended on March 31, 2005.
[38] Ms. Khalifa's new contract was prepared in writing and indicated that its term ran from April 1, 2005, until August 19, 2005, a total period of 20 weeks. Her rate of pay was shown to be $21.75 per hour, for a total of 37.5 hours per week. Mr. Currie testified that he had expectations that Ms. Khalifa would be able to complete the work for the Production and other divisions within the normal course of a business day, starting at a reasonable time of 8 to 9 o'clock. These expectations were conveyed to her along with an understanding that there would be some flexibility extended as to the start and end of the work day.
[39] When Mr. Currie executed the call-up for Ms. Khalifa, he had concerns regarding his division's ability to monitor her time. He was worried that given his extensive duties as General Manager, he would be unable to supervise Ms. Khalifa sufficiently. Staff who had worked more closely with her in the past had advised Mr. Currie that they had had some difficulty monitoring her time and performance, and that her attendance and work habits were very fluid. He testified that this was the background information that he had regarding Ms. Khalifa's potential performance.
[40] He acknowledged that when Ms. Khalifa had previously provided temporary services, he found her work performance satisfactory. He highlighted, however, that when he served as Acting CEO, he had a full-time administrative officer to handle any administrative tasks. So his interaction with additional staff, including Ms. Khalifa, was minimal during the period that preceded her call-up to the Production Division in April 2005.
[41] Since Mr. Currie was too busy, as General Manager of Production, to monitor Ms. Khalifa's activities directly and keep track of her time, he assigned the task to Ms. Murphy. He met with her on April 11, 2005, and asked that she supervise Ms. Khalifa's hours of work and report to him on the status of her performance of assigned tasks. He explained to her that he had concerns about Ms. Khalifa's work schedule and hours of work. In an effort to ensure that the work was done according to the contract, Ms. Murphy was directed to monitor Ms. Khalifa's hours to ensure that she performed her work and to report back weekly to Mr. Currie on the status of Ms. Khalifa's work performance.
(i) What were Ms. Khalifa's alleged shortcomings regarding her attendance and punctuality? [42] Ms. Murphy testified that early in her career, she had established a practice of always maintaining a diary in which she would jot down activities from her personal and work-related life, on a daily basis. Ms. Murphy filed in evidence the excerpts from her diary for the period that she worked with Ms. Khalifa, in 2005. Following her meeting with Mr. Currie on April 11, Ms. Murphy began noting in her diary Ms. Khalifa's attendance and the times when Ms. Khalifa would arrive and leave work each day. Ms. Murphy pointed out that her main objective in recording this information was not to verify whether Ms. Khalifa was arriving at a specific time in the morning (be it, for instance 8:45 or 9:00 a.m.), but more importantly to monitor if she was working the full 7.5 hours daily expected of her (37.5 hours per week).
[43] On April 12, which was the very next day after her meeting with Mr. Currie, Ms. Murphy wrote in the diary that Ms. Khalifa did not come in to the office at all, and did not call in during the morning to explain her absence. Later in the day, Ms. Khalifa telephoned to explain that her car had a flat tire and she would not be coming in. On April 18, Ms. Murphy wrote in her diary that although Ms. Khalifa arrived at 8:45 a.m. that day, she left at 2:00 p.m., having worked only 5.25 hours. On April 19, Ms. Khalifa arrived at work at 2:00 p.m., having explained that she again had had tire problems with her car.
[44] On April 25, Ms. Murphy recorded that she had to speak to Ms. Khalifa about a discrepancy in her timesheets. Although Ms. Murphy's records were showing that Ms. Khalifa had only worked 32.5 hours the previous week (April 18 to 22), Ms. Khalifa had filled out her timesheets to show that she had worked a full 37.5 hour week. After Ms. Murphy spoke to her, Ms. Khalifa amended the document to reflect the corrected number of hours worked.
[45] Ms. Murphy testified that she brought this incident to the attention of Mr. Currie who requested that she continue keeping track of Ms. Khalifa's hours, stating that if similar problems continued to arise, he would have to address the matter.
[46] On April 27, Ms. Murphy noted in her diary that Ms. Khalifa was not in her office and that no notice or explanation for the absence had been provided to Ms. Murphy. Ms. Murphy does not recall if an explanation was ultimately given or if Ms. Khalifa's absence lasted all, or just a portion, of the day.
[47] On April 28, Ms. Murphy wrote in her diary that she spoke to Mr. Currie about the supervision issue. She told him that with the repeated absences and late arrivals, she was finding it uncomfortable supervising Ms. Khalifa. Mr. Currie replied that he would speak to Ms. Khalifa directly about the problem. Ms. Murphy testified that Ms. Khalifa's personal life or family status were not raised at all during this conversation.
[48] Following up on his conversation with Ms. Murphy, Mr. Currie invited Ms. Khalifa to his office the following day (April 29), in order to discuss the attendance and timeliness issues brought up by Ms. Murphy. According to Mr. Currie, Ms. Khalifa complained during the meeting about Ms. Murphy's close supervision of her. Mr. Currie testified that he believed Ms. Khalifa had never been so closely supervised at IOGC before.
[49] Mr. Currie also confirmed that during the meeting, Ms. Khalifa expressed her objections to Ms. Murphy's alleged comments that Ms. Khalifa should work elsewhere, where her schedule would be more flexible and more accommodating to her family-related needs. After the meeting, Mr. Currie testified that he asked Ms. Murphy if she had said anything suggesting (or which could be interpreted as suggesting) that she work elsewhere, as related to him by Ms. Khalifa. Ms. Murphy replied that she had not.
[50] Ms. Murphy was asked in cross-examination if her conversation with Mr. Currie included a discussion about Ms. Khalifa being a single parent and that she should seek employment elsewhere because of her family status. Ms. Murphy testified that she did not recall any such conversation with Mr. Currie. She recollects Mr. Currie's telling her that Ms. Khalifa had expressed resentment towards Ms. Murphy's close supervision of her work. Mr. Currie testified that during this meeting with Ms. Murphy, she stated that Ms. Khalifa had also brought up a matter relating to another IOGC employee, who had obtained employment at a different government agency. This former employee had called Ms. Khalifa to inform her that his new employer may have a job available for her. Ms. Murphy recalled this latter discussion in her evidence as well, although she believed that it took place in June 2005. She remembers having told Ms. Khalifa that if this was an opportunity she wished to pursue, she should consider it.
[51] Ms. Murphy testified that after the April 29 meeting with Mr. Currie, Ms. Khalifa returned to her office cubicle and told Ms. Murphy in an angry and loud voice that if she had a problem with her, she should have brought it up directly, rather than raise it with Mr. Currie. Ms. Murphy recalls Ms. Khalifa noisily pushing things around her desk. In her diary for that day, Ms. Murphy recorded, Discussion with Bill re: MK [Melissa Khalifa], Angry response from MK.
[52] Following up on Ms. Khalifa's reaction, Ms. Murphy testified that she went to Mr. Currie's office to discuss how to deal with the issue. Mr. Currie explained that Ms. Khalifa had displayed resentment to Ms. Murphy's tight supervision of her hours and work performance. Ms. Khalifa was experiencing some scheduling difficulties. To address this issue and afford her some flexibility in her scheduling, Ms. Murphy suggested to Mr. Currie that Ms. Khalifa be offered the opportunity to enter into a Compressed Work Schedule Agreement (also known as a flex time agreement) with IOGC. Flex time agreements allow employees to work an extra half hour per day, thus enabling them to gain 13 compressed work days off per year. Essentially, for every 19 days worked, the employee gets a day off (with one additional day off per year). IOGC's policy made flex time agreements available only to its indeterminate employees and term employees of six months or longer, not to temporary staff like Ms. Khalifa. Nevertheless, Mr. Currie accepted and approved Ms. Murphy's suggestion, and agreed to offer the option to Ms. Khalifa later that same day (April 29th). It was hoped that Ms. Khalifa might welcome the ability to have these extra days off from work, which would perhaps enable her to fulfill some of her personal commitments, such as taking her children to medical appointments or attending their school activities.
[53] According to Ms. Murphy, Ms. Khalifa told her that she appreciated the opportunity being afforded to her. The agreement was prepared and signed by Ms. Khalifa, Ms. Murphy (as supervisor) and Mr. Currie (as Divisional General Manager) later that day. The agreement was filed in evidence. It provided that Ms. Khalifa's work schedule would run from an 8:45 a.m. start to a departure time of 4:45 p.m., a total of 8 hours per day. This information was filled in by Ms. Khalifa herself, who testified that she did not insert any stipulation for a noon-hour break, since she rarely left the office for lunch. She usually ate while working at her desk. Ms. Murphy testified that she advised Ms. Khalifa that she could nonetheless take a half hour lunch if she chose to, provided she extended her working day accordingly, i.e. to a total of 8.5 hours including lunch. IOGC produced a copy of the policy regarding flex time agreements. It specifies that the starting and quitting time of an employee must respect the organization's core hours of activity, which are defined as 8:30 to 11:30 a.m. and 1:30 to 3:30 p.m.
[54] Ms. Murphy testified that despite the implementation of the flex time agreement, Ms. Khalifa continued to have difficulty being punctual in arriving to work and maintaining her attendance. There were also discrepancies between the work times entered by Ms. Khalifa in her timesheets and those observed by Ms. Murphy. In her testimony, Ms. Murphy listed a series of dates where she had recorded some of these lapses in her diary:
May 4 - Ms. Khalifa arrived at her office at 9:30 a.m.
May 6 - Ms. Khalifa arrived at her office at 9:00 a.m. but left at 2:15 p.m. Ms. Murphy does not recall if an explanation was given or if Ms. Khalifa ever made up those hours. In the timesheet, Ms. Khalifa had recorded a departure time of 4:55 p.m.
May 12 - Ms. Khalifa arrived at 10:45 a.m., after having first called Ms. Murphy to advise her that she would be coming in late. Ms. Khalifa recorded in her timesheet that she arrived at 9:00 a.m. that day.
May 16 - Ms. Khalifa arrived at 10:00 a.m., after having first called Ms. Murphy to advise her that she would be coming in late. Ms. Khalifa recorded in her timesheet that she arrived at 9:00 a.m. that day.
May 24 - Ms. Khalifa arrived at 9:20 a.m. and left at 2:45 p.m. Ms. Murphy does not recall if she was notified or was given an explanation. She does not recall if Ms. Khalifa made up those hours. Ms. Khalifa recorded in her timesheet that she left at 5:00 p.m. that day.
May 31 - Ms. Khalifa arrived at 1:40 p.m. Ms. Murphy recorded in her diary that Ms. Khalifa had an emergency dental appointment.
June 7 - Ms. Khalifa arrived at 9:15 a.m. and left at 3:30 p.m. Ms. Murphy does not recall any explanation being given or if Ms. Khalifa ever made up those hours.
June 16 - Ms. Khalifa took a lunch break of two hours. Ms. Murphy does not recall being given any advance notice for this. Ms. Khalifa recorded a 30 minute lunch in her timesheet.
June 21 - Ms. Khalifa arrived at 9:10 a.m. and left at 3:00 p.m. Ms. Murphy does not recall any notice being given for the early departure.
June 28 - Ms. Khalifa did not arrive until 1:30 p.m. Ms. Murphy did not receive any call advising or explaining why her arrival would be late. Ms. Murphy noted in her diary that she checked with the reception desk to verify whether Ms. Khalifa had called in, and was told she had not. From this date forward, Ms. Murphy changed cubicles so that she was no longer located next to Ms. Khalifa's office. However, Ms. Murphy testified that in order to verify Ms. Khalifa's arrival and departure times, she was getting up and walking to Ms. Khalifa's office every 10 minutes to check. Thus, the times recorded in her diary are never more than 10-15 minutes after Ms. Khalifa's actual time of arrival.
June 29 - Ms. Khalifa arrived at 10:00 a.m. She did not call in to explain that she would be late. Ms. Khalifa recorded that she arrived at 9:30 that day.
June 30 - Ms. Khalifa arrived at 9:30 a.m.
July 4 - Ms. Khalifa arrived at 9:30 a.m.
July 7 - Ms. Khalifa called Ms. Murphy at 8:55 a.m. to advise that she would be late as she had a doctor's appointment. She indicated that she would be coming in at 10:30 a.m. As of 12:20, when Ms. Murphy was stepping out of the office, she noted in her diary that Ms. Khalifa had yet to arrive and had not called in an explanation. Ms. Khalifa recorded in her timesheet that she arrived at 12:30 p.m., but stayed that evening until 7:30 p.m.
July 8 - Ms. Khalifa arrived at 10:00 a.m. She recorded in her timesheet that she arrived at 9:00 a.m.
July 15 - Ms. Khalifa arrived at 10:15 a.m.
July 27 - Ms. Khalifa was away at lunch between 11:45 and 2:00 p.m. She recorded in her timesheet that she only took a 30 minute lunch.
July 29 - Ms. Khalifa was away at lunch between 11:45 and 1:15 p.m. She recorded in her timesheet that she only took a 30 minute lunch.
[55] Ms. Murphy testified that she raised with Ms. Khalifa the discrepancies between the observed times and those that Ms. Khalifa was entering on the timesheets. For instance, as I already mentioned, on April 25th, the differences were pointed out and Ms. Khalifa modified her timesheet accordingly. On June 6th, Ms. Murphy noticed Ms. Khalifa had entered 35 hours worked in her timesheet for the previous week, when Ms. Murphy had observed only 28 hours worked. Ms. Murphy discussed this matter with Ms. Khalifa, who explained that she was having some financial problems at the time and asked Ms. Murphy to sign off on the exaggerated timesheet as an advance payment for work to be performed later. Ms. Murphy testified that she accepted her request and signed in good faith, in order to afford Ms. Khalifa the flexibility to perform the work when she could. Ms. Murphy does not recall being given any indication that Ms. Khalifa ever actually made up those hours owing.
[56] On July 4, Ms. Khalifa submitted a timesheet for signature showing that she had worked 27.5 hours, but Ms. Murphy's records showed that she had in fact worked 25 hours that week. Ms. Murphy testified that Ms. Khalifa was often claiming that she was doing some of her work at home. Given the relatively small discrepancy of 2.5 hours, and her inability to verify Ms. Khalifa's claim, Ms. Murphy accepted her claim in good faith and did not bother raising this discrepancy with her.
[57] On July 20, while reviewing Ms. Khalifa's performance, Ms. Murphy noticed that a timesheet submitted by Ms. Khalifa relating to a previous week showed 37.5 hours worked. Ms. Murphy's records, however, indicated that she had worked only 30.5 hours that week. Since Ms. Murphy was away from the office when Ms. Khalifa prepared the timesheet for approval, another supervisor, who was presumably unaware of the actual hours worked as recorded in Ms. Murphy's records, signed it in her absence.
[58] On July 25, Ms. Murphy's review of Ms. Khalifa's timesheet for the preceding week indicated that she had worked 37.5 hours, but Ms. Murphy's records showed a total of 27.5 hours worked. Ms. Murphy testified that she did not bother talking to Ms. Khalifa about the discrepancy as she was still unable to verify Ms. Khalifa's claims that she was also working from home. Moreover, Ms. Murphy felt that with all the conflicts that had developed between her and Ms. Khalifa by this point, it was no longer worth it to raise the issue.
[59] On August 2, which ended up being the last day that Ms. Khalifa worked at IOGC, she submitted a timesheet for the prior week to Ms. Murphy, who noted in her diary that the claimed hours of work (25) exceeded the number recorded by Ms. Murphy (21). Given Ms. Khalifa's departure, this discrepancy was never raised with her.
[60] On many of the timesheets, the arrival time entered by Ms. Khalifa for numerous workdays is 10 to 30 minutes earlier than what Ms. Murphy had noted in her diary. Ms. Murphy testified that she only raised the larger discrepancies with Ms. Khalifa, particularly during the first couple of months of the latter's employment at the Production Division. In almost all instances, Ms. Murphy signed off on the timesheets nonetheless, without any adjustments being made, having opted not to split hairs but rather, to give Ms. Khalifa the benefit of the doubt with respect to the smaller differences.
(ii) What were the indicators of Ms. Khalifa's declining work performance? [61] Ms. Khalifa's duties during April to August 2005 were divided into two general categories (project coordination/reporting duties and administrative duties), which were reflected in a document entitled contract that she and Ms. Murphy had developed together by April 12, 2005. The project coordination and reporting duties were to be assigned to her by the Production Division as well as other divisions. These tasks were to include the production of IOGC reports, communication initiatives involving the IOGC website, the preparation of statistical summaries, as well as working on a document known as Royalty Simplification and Guidelines (the Guidelines). Ms. Khalifa's administrative duties included making travel arrangements for other staff, booking meetings, distributing mail, providing administrative support to Ms. Murphy, and replacing the receptionist during breaks on Tuesdays and Thursdays.
[62] Ms. Murphy testified that on a couple of occasions, Ms. Khalifa did not perform this last task,