Worker said pro-union position, opposition to employer's policy linked to adverse treatment
A worker who claimed that he was treated adversely due to his pro-union views and his opposition to mandatory vaccination policies was not discriminated against because of political beliefs, the British Columbia Human Rights Tribunal has ruled.
The worker was an employee of the City of Richmond, BC, and a member of a bargaining unit represented by the Canadian Union of Public Employees. He served as the union local’s vice-president from June 2020 to October 2021.
In October 2021, the city announced that it was considering implementing a policy requiring city staff to get vaccinated against COVID-19. The worker wrote a post on Facebook saying that he opposed this policy and he was against vaccination mandates in general, stating that the city was “incapable of making decisions themselves” and the “leadership displayed in this community is pathetic.”
On Oct. 26, the worker sent a terse email to the city’s chief administrative officer (CAO) expressing concerns and disappointment about the city’s vaccination policy. He said there was “little to no discussion” about it and it put some staff members “in limbo regarding the future of their employment.”
The worker’s manager and other senior staff reminded the worker about the city’s social media directive and the expectations for his communications. The worker removed his Facebook post and he wasn’t disciplined.
Medical information
The worker suffered a back injury earlier in 2021 for which he had made two workers’ compensation claims. The city had policies for medical accommodation that specified when medical documentation was necessary to support injury-related absences.
On Jan. 31, 2022, the worker provided a note from his physician stating that the worker was unable to work until Feb. 4 and he confirmed that it was due to his back injury. The city’s disability, health and wellness (DHW) specialist told the worker that he would need to provide medical forms clearing him to return to work on Feb. 7 and whether he had any medical restrictions. The worker responded with emails that the city considered inappropriate.
The worker returned to work on Feb. 7 but didn’t provide any medical information. On Feb. 11, he called in sick while he travelled to Ottawa for the Freedom Convoy protest. He also booked off his next workday as a vacation day. According to the worker, before he left for Ottawa his manager told him that the city would be monitoring his social media accounts, although the manager denied this.
The worker returned from Ottawa on Feb. 14 and tested positive for COVID-19, requiring him to isolate for two weeks. While he was off work, the city continued to request medical information clearing him for work from his back injury.
The worker returned to work on Feb. 21 and later obtained a letter from his doctor clearing him to return effective Feb. 5.
Investigation into misconduct
On March 7, the city held an investigation meeting to address the worker’s back injury and his inappropriate emails to the DHW specialist. The worker was also asked about travelling and posting photos on social media while he claimed to be sick, and he was reminded about the city’s expectations about respectful behaviour and the social media policy.
On Aug. 4, the worker requested approval for funding for a supervisor skills course at a postsecondary institution, as the city supported such training for employees. The city denied the request because the worker wasn’t meeting his job expectations and it was concerned about his judgment and communication style in the wake of his Facebook post and emails. The worker’s supervisor suggested that he focus on improving his written communication skills and be careful about what he posted on social media, and he would support an application to a respectful workplace course.
The worker filed a human rights complaint alleging that his union involvement and his opposition to vaccination mandates constituted political beliefs under the BC Human Rights Code, and he faced discriminatory adverse treatment – a meeting about his activities in Ottawa and the denial of his request for training funding - because of them.
The city applied to dismiss the complaint on the basis that it had no reasonable prospect of success.
The tribunal noted that its jurisprudence established that political beliefs have a broad definition but they should be genuinely held with a greater scope than someone’s own personal interests, not “a passing idea nor position taken for convenience or advantage in the circumstances in which the conflict arises.” They should also be “core to a person’s concept of a system of social co-operations,” the tribunal said.
Political beliefs
The tribunal noted that being in a union wasn’t a protected characteristic under the code, but an individual’s beliefs about unions was “inherently political.” However, the worker didn’t provide any information to explain how his involvement in the union was political. While the worker may have sincerely held union-related political beliefs, he only made “vague statements” that didn’t establish a clear foundation for his argument, said the tribunal.
There has to be discernment that the pro-union beliefs aren’t just about the worker’s own personal interests, but something broader, according to Ryan Macklon, an employment lawyer with Vancouver-based Kent Employment Law.
“Is it about something broader than just the worker and his personal beliefs - things like the institution of the union that he belongs to and the activities that engage the union’s powers,” he says. “[The worker] was pro-union and wanted to make sure that the collective agreement was followed, but there's nothing there for the tribunal to grab on to and be able to slot that as a political belief - it doesn't necessarily go beyond just his own interests.”
“They want to draw a distinction between a person who's being opportunistic versus this is a fundamental, core belief - it goes beyond the transient moment,” adds Macklon.
As for the worker’s opposition to the vaccination policy, the worker also didn’t explain how it was political but he did take it out of the realm of conjecture, said the tribunal. The worker’s Facebook post described his views about mandatory vaccination policies in general – a matter of public interest relating to government actions - and he expressed concerns about the employment and health of other city employees, the tribunal said.
“It fits into a political belief simply because it's a public issue involving some kind of governmental action, being these vaccine mandates,” says Macklon. “That's politics because it’s a decision made by the government, so having views one way or the other can be political - I think that was generally accepted without too much debate.”
No link between political beliefs, adverse treatment
Despite finding that the worker’s views on vaccine mandates was a political belief, the tribunal determined that the worker failed to show a link between his political beliefs and any adverse treatment in his employment.
The tribunal found that the meeting where the worker claimed city officials questioned his attendance at the Freedom Convoy protest was actually about the worker’s travelling while he was off sick, his workplace conduct, and medical documentation for his back injury – which was supported by the city’s minutes from the meeting – not his political beliefs, said the tribunal.
The tribunal agreed that the denial of the worker’s request for training funding was an adverse effect, but the worker again had little evidence showing a connection to his political beliefs. The city provided email evidence showing that it denied the request due to concerns over the worker’s judgment and communication, said the tribunal.
“The city had a number of reasons why they denied this training – his work performance, his communications with a number of city staff being rude and disrespectful, his Facebook post – and they didn’t get into the substance of the post or the views that the worker expressed,” says Macklon. “They took issue with it because it was a violation of their social media policy and poor decision-making in the sense that he was critical, in not a very nice way, of city staff.”
As for the alleged comment that the worker’s social media would be monitored, the tribunal found no evidence that any such statement was connected to his political beliefs or even made – the supervisor denied it and the worker wasn’t at work before going to Ottawa.
No evidence of discrimination
The tribunal determined that, while the worker’s opposition to vaccination mandates could be classified as a political belief under the code, there was no reasonable prospect of establishing that this belief influenced the city's actions against him. The complaint was dismissed.
“For any kind of incidence of employee discipline or a workplace investigation, you want to make sure that you have excellent records of what went on,” says Macklon. “Everything should be well documented, including all of the communications – in this case, the city denied the employee the training because all of the reasons stated in the emails.”
