Employee just trying to cause trouble for employer
Question: We have an employee who has made multiple claims of discrimination which we consider frivolous. All of the claims were dismissed and we feel the employee is trying to cause trouble and disrupt the workplace. Would discipline or firing still be considered retaliation even though the employee’s claims were without merit?
Answer: In short, if the claims were advanced under human rights legislation, the answer is yes. Human rights codes include statutory protections for complainants. For example, the Saskatchewan Human Rights Code provides very strong protections for employees who make complaints under the code or who participate in an investigation or a proceeding of the Human Rights Commission or the Human Rights Tribunal.
The code prevents an employer from taking any retaliatory action against an employee for making a human rights complaint or participating in a human rights investigation by:
•refusing to employ or to continue to employ any person
•threatening to dismiss or penalize an employee in any way
•discriminating against any person with respect to that person’s employment
•intimidating, retaliating against, coercing or imposing any pecuniary or other penalty, loss or disadvantage on any person.
This effectively prohibits an employer from taking action against an employee because of a human rights complaint, regardless of the complaint’s merits. It also protects employees who participate in an investigation or a tribunal proceeding.
In Walsh v. Mobil Oil Canada, the Alberta Court of Appeal set out the requirements for a finding of retaliation. Firstly, the employee must establish a link between the termination or negative treatment and the filing of the complaint or participation in the proceeding. Secondly, the employer’s conduct must have been a deliberate response to the employee making a human rights complaint or participating in an investigation or proceeding. Basically, it is up to the employee to demonstrate she experienced negative treatment because she lodged a human rights complaint.
It is important to consider the employee is not required to show the employer acted with malice or bad faith. In Walsh, the Alberta Court of Appeal stated:
“(W)hat a complainant needs to show, directly or by inference, is that, on a balance of probabilities, the respondent's alleged treatment was retaliatory, meaning it was connected to the initial complaint and the respondent intended (in the sense of a deliberate response) to pay back the complainant for his or her complaint. I agree that payback need not be the only reason for the conduct complained about, but so long as it forms part of the motive for the conduct at issue, it will be retaliatory.”
Even where the initial complaint is groundless, if an employer takes action in response to the employee launching a complaint, the employer’s conduct is considered retaliatory. The employee would still be required to prove the link between the employer’s allegedly retaliatory conduct and the launching of the complaint. This means the employee must prove the negative treatment was at least partially due to the complaint or participating in the investigation or proceeding. Keep in mind the retaliation provisions only apply to complaints made under the Saskatchewan Human Rights Code.
An employer’s actions may be retaliatory even when the initial complaint was entirely without merit. The Alberta Court of Appeal in Walsh noted that retaliation also includes “post-complaint conduct that is intended to prevent or discourage future complaints of discrimination,” such as where an employer dismisses or disciplines an employee because it is annoyed by the employee's complaint, even if there was no discrimination.
Also, just because an employer considers a discrimination claim under the Human Rights Code to be frivolous, this does not necessarily make it so. The objective of the legislation is to prevent employers from discouraging employees from making human rights complaints.
Conduct is retaliatory if even part of the reason for the action against an employee relates to a human rights complaint. The merits of the complaint are immaterial to the determination of whether retaliation has taken place. It is a violation of the Human Rights Code for an employer to terminate or penalize an employee for making a human rights complaint. Keeping accurate records may afford an employer a certain degree of protection; however, it is still open to the employee to demonstrate she was terminated or disciplined at least in part because of a complaint.
Thus, while the code provides that the chief commissioner may at any time dismiss a complaint where she is of the opinion that the complaint was made in bad faith or is frivolous or vexatious, retaliatory acts against an employee are prohibited. Following Martin v. Kamloops Cariboo Regional Immigrant Society, the filing of an internal complaint does not trigger the protection of a Human Rights Code that is meant to ensure that persons who raise human rights complaints, and those who are assisting them, do not face retaliation as a result.
The B.C. Human Rights Tribunal in Bissonnette v. Sooke School District No. 62, set the following requirements for employees to prove retaliation:
•A previous complaint has been made under the code and the employer was aware of the complaint.
•The employer engaged in or threatened to engage in retaliatory conduct.
•The employer intended to engage in that conduct or can reasonably be perceived to have engaged in that conduct in retaliation, with the element of a reasonable perception from the point of view of a reasonable complainant.
Outside of the code, however, an employee’s discharge may be terminated for knowingly filing a false claim. In Canada Post Corp. v. Canadian Union of Postal Workers (Sinnock Grievance), a postal worker’s discharge was upheld because “she filed a false claim knowingly, and steadfastly maintained this falsehood throughout her testimony, all in an attempt to avoid discipline for her refusal to perform certain work.” The employee alleged a supervisor called her an offensive name and pushed a wire mesh cage for parcels at her, hitting her hip and knee. The arbitrator concluded the employee’s complaint was both false and malicious as opposed to simply unsubstantiated or unfounded. The complaint in this instance was not specifically filed under the company’s harassment provision.
Thus, in certain circumstances such as in Canada Post Corp., an employee may be discharged for knowingly filing a false internal claim that does not trigger the protection of the retaliation provisions of a Human Rights Code.
For more information see:
•Walsh v. Mobil Oil Canada, 2008 CarswellAlta 1168 (Alta. C.A.).
•Martin v. Kamloops Cariboo Regional Immigrant Society, 2010 CarswellBC 3600 (B.C. Human Rights Trib.).
•Bissonnette v. Sooke School District No. 62, 2006 CarswellBC 3556 (B.C. Human Rights Trib.).
•Canada Post Corp. v. Canadian Union of Postal Workers (Sinnock Grievance), [2007] C.L.A.D. No. 416.
