Employment record, not retaliation, reason for refusal to rehire worker

B.C. worker's inquiry about position came during active human rights complaint; Town wasn't recruiting and didn't feel worker was a good fit

Employment record, not retaliation, reason for refusal to rehire worker

A British Columbia municipality’s refusal to rehire a former employee was not retaliation for a human rights complaint, the B.C. Human Rights Tribunal has found.

Jessica Wallis worked in the Hall and Recreation Department of the Town of Comox, B.C., starting in September 2009.

In July 2016, Wallis filed a discrimination complaint claiming that she faced discrimination in her employment based on a mental disability. The process before the B.C. Human Rights Tribunal stretched out for more than two years.

On April 16, 2018, Wallis emailed the town’s recreation director to ask for a meeting to discuss the possibility of her teaching fitness classes. Her discrimination complaint was still ongoing at the time.

The recreation director said that he would look into the options for fitness instruction but that he didn’t think it would be a good idea to meet at that time. He stated in his email that “I don’t want to prejudice or inform the action you have against the town through the B.C. Human Rights Tribunal. So any discussion will have to wait until the issue is resolved.”

Wallis responded by saying “your comments regarding my human rights claim against the town are potential for amendment to my already accepted claim” and suggesting he discuss it with the town’s lawyer. She added that she was trying to get a job doing things for which she was qualified — she was certified to teach fitness classes — and if the town was denying her a discussion for such a position it was retaliation for her previous complaint, which was contrary to the B.C. Human Rights Code.

Retaliation complaint
There was no response from the town, so, more than a month later, Wallis emailed the town’s lawyer asking who was responsible for the decision not to discuss a fitness instructor position. On June 1, 2018, the town’s chief administrative officer emailed Wallis stating that the town had answered her questions from April 16. Wallis disagreed, saying that she had grounds for a claim of retaliation. Four days later, she filed a complaint of retaliation with the tribunal.

One month after Wallis filed the complaint, on July 5, the town’s recreation director emailed Wallis to clarify their communications from April. He said the town had been preparing its reply submissions in an application to dismiss the original human rights complaint at the time of her request and that’s why he thought it best to not meet at the time — the application was still outstanding and he thought they shouldn’t speak with each other. He clarified that any decision regarding her request to teach fitness classes wasn’t related to her complaint.

The recreation director also said that the town wasn’t actively recruiting fitness instructors and he had reviewed her employment history with the town — which revealed “consistent interpersonal conflict with instructors, contractors, staff and customers, poor judgment and communication, and overall poor performance” and comments that it was a toxic workplace. For him, this demonstrated that Wallis didn’t feel the town was a positive place to work so hiring her wouldn’t benefit either her or the town.

Wallis disagreed that she was always a “problem employee” as she had been promoted twice during her employment with the town. She felt that she had “gotten past things” that were related to her mental health and her original human rights complaint but that the town’s recreation director and chief administrative officer didn’t understand mental health. She believed that had the recreation director met with her, he would have seen that she had addressed her mental health issue with medication and time, and she was no longer a challenging person with whom to work.

Wallis maintained her belief that her “human rights are being retaliated against” and the town had the chance to explain its decision not to meet with her before she submitted her claim.

The tribunal noted that the B.C. Human Rights Code protects people against “adverse consequences related to their involvement or potential involvement in a human rights complaint.” In order for Wallis to prove that the town violated the code by retaliating against her, she had to show that the town was aware she had made or intended to make a complaint, the town adversely treated her and there was a connection between the adverse treatment and Wallis’ complaint.

No adverse consequences
The tribunal found that when Wallis sent her email inquiry to the town’s recreation director, she didn’t have a right to a discussion about the position. The evidence showed that, although the recreation director didn’t explain it initially, the town wasn’t actively recruiting for fitness instructors, so there was no formal process going on of which Wallis’ email was a part. As a result, Wallis wasn’t denied any opportunity to apply for a job and suffered no adverse consequences from the recreation director’s refusal to meet at that time.

It was also understandable that the recreation director referred to Wallis’ active human rights complaint, since the timing of her email coincided with the town preparing its application to dismiss and raised concerns, the tribunal said.

The tribunal noted that the town might have been in a shadier position if it had denied Wallis from applying for the position or rejected her application. However, it wasn’t accepting applications and it wasn’t actively looking for someone to fill such a position. There was no evidence that Wallis suffered adverse consequences stemming from her email inquiry. In addition, the recreation director didn’t outright refuse to meet with Wallis, the tribunal said. Instead, he said it would have to wait until a better time.

“There is no question that the recreation director’s decision not to meet was informed by the discrimination complaint,” the tribunal said. “However, the uncontested evidence that the town was not actively recruiting together with evidence of a lengthy employment history between the parties reasonably suggests that it may have been a prudent decision on the part of the town and not intended to be retaliation as contemplated by [the code].”

While there were no adverse consequences stemming from the recreation director’s refusal to meet with Wallis in April 2018, the town’s decision not to rehire her in the future — communicated in the July 5 email — qualified as adverse consequences for Wallis. However, the evidence demonstrated the town had legitimate reasons for the decision based on her employment history. Although Wallis didn’t initially receive that explanation, it was provided later after she had filed the retaliation complaint — which was the town’s attempt to address the retaliation complaint and was “a genuine and deliberate attempt to explain to Ms. Wallis why there is no causal link between the discrimination complaint and the recreation director’s refusal to meet and the town’s ultimate decision that she would not be suited for future employment.”

The tribunal found Wallis’ retaliation complaint had no reasonable prospect for success and dismissed it.

 

For more information, see:

  • Wallis v. Town of Comox, 2019 BCHRT 63 (B.C. Human Rights Trib.).

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