Discrimination complaint not superseded by workers’ compensation claim related to bullying

The BC Human Rights Tribunal has denied an employer’s application to dismiss a worker’s discrimination complaint due to lateness and a workers’ compensation complaint for bullying that arose from the same allegations.

The worker was an employee of the City of Richmond, BC. She alleged that she was treated poorly at work because of her gender and her mental health. She alleged that she was paid less because she was a woman and reported several incidents that took place between July 2015 and November 2018 to the city.

The incidents included:

• She returned to work in July 2015 from a shoulder injury and her new manager placed her in a lower-paying position and made sexist comments several times.
• She was moved to a truck driver position in August 2015 in which she was paid less than junior male co-workers and given the worst jobs.
• In a grievance meeting about her level of pay, a city manager screamed and swore at her and called her a “girl.”
• After she complained about a co-worker insulting a colleague, the co-worker pinned her against a truck, screamed at her, and called her “a rat” and “a stupid woman.” Other employees watched and did nothing, and her manager laughed about it.
• In Spring of 2017, a superior tried to touch her on the buttocks and laughed when she protested.
• Other truck drivers sexually harassed her by buying her gifts that she didn’t want and one called her his “work wife.”
• In May 2018, a male worker she supervised was insubordinate to her on several occasions. The co-worker who had pinned her against the truck previously screamed and swore at her and her crew.
• In November 2018, she was diagnosed with post-traumatic stress disorder (PTSD) after she helped city workers with an injured man who later died. While off work, an HR manager told her she should be back at work instead of “at home eating bonbons and watching re-runs of I Love Lucy.” The worker took this to be a crack about her being a woman and weak, and mocking her mental health issues.

In addition to her workplace complaint, the worker filed a claim with WorkSafeBC on Jan. 30, 2019, seeking workers’ compensation on the basis that she had developed a mental disorder related to bullying and harassment in the workplace related to the November 2018 comments by the HR manager about her medical leave and other incidents in 2016 and 2017.

An Alberta worker’s age discrimination complaint was dismissed for being based on speculation and not evidence.

Independent investigation

The city hired an independent investigator to investigate the worker’s allegations. The investigation was completed on Oct. 14, 2019, and found, based on the accounts of other employees and other evidence, that most of the allegations likely did not occur as the worker claimed and were unsubstantiated.

The exception was the male worker’s comments about his “work wife” was in response to the worker coining the term “work husband” and was non-discriminatory joking together, as well as the insubordinate behaviour by the male subordinate, which the investigator determined was a conflict but not discriminatory.

WorkSafeBC rejected the worker’s claim, finding that the incidents in 2016 and 2017 were beyond its one-year limit for filing claims and the November 2018 comment by the HR manager did not rise to the level of threatening or abusive conduct under its policy.

The city requested the tribunal to dismiss the worker’s complaint on the basis that WorkSafeBC had appropriately dealt with the substance and timeliness of the complaint. The BC Human Rights Code allows the tribunal to dismiss a complaint if “the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding.”

The tribunal disagreed that WorkSafeBC dealt with the substance of the worker’s complaint. As for timeliness, WorkSafeBC considered whether the complaint met the specific criteria to file a late complaint under the province’s Workers Compensation Act, which has a one-year limit unless special circumstances precluded the filing of the claim within that time and a three-year limit for special circumstances.

There was no indication that WorksafeBC applied the Human Rights Code in assessing the timeliness of the claim, said the tribunal.

An Ontario worker’s human rights complaint was dismissed due to a duplicate constructive dismissal action based on the same facts.

Different assessments

The tribunal noted that the code contemplates factors such as the public interest to determine if a late complaint is to be allowed, and whether older allegations form a “continuing contravention” into the limitation period. In the circumstances, WorkSafeBC’s decision on the complaint’s timeliness under the act was not the same as how the tribunal would assess timeliness under the code, said the tribunal.

Although the worker’s WorkSafe complaint specifically addressed the November 2018 comments by the HR manager that was also alleged in her human rights complaint, that decision was a finding related to whether it was threatening or abusive – it did not assess whether it was discrimination under the code using the traditional three-part test, said the tribunal.

The tribunal determined that the WorkSafeBC decision addressed different issues than what was in the discrimination complaint and should not be dismissed on that basis.

The tribunal also noted that only the November 2018 comment fell within the one-year time limit to file a human rights complaint. However, if found that “the common thread running through all of [the worker’s] allegations is a poisoned work environment connected to her gender as a woman.” All of the allegations were of “a sufficiently similar character” that linked them together in a pattern of “continuing contravention” that fell within the limitation period.

The tribunal also declined to dismiss the complaint as having no reasonable prospect of success due to the witness accounts used in the independent investigation. Although the investigator found none of the individual allegations were discriminatory, it was possible that several incidents when considered together could constitute discrimination.

This left the possibility that the worker could prove in a hearing that some of the conduct occurred and was discriminatory, said the tribunal.

The city’s application to dismiss the complaint was denied. See Complainant v. City of Richmond, 2023 BCHRT 57.