Employer conducted investigation, but workplace comments could still justify complaint
The British Columbia Human Rights Tribunal has denied an application by an employer to dismiss a complaint of discrimination brought against it and its representatives by a former employee.
The worker was a construction safety officer (CSO) for Thind Properties, a real estate development company based in Burnaby, BC. Hired in May 2018, she oversaw safety at various construction sites.
In December, the worker was transferred to a construction site called “Beta,” where the construction superintendent had been the subject of complaints. She was told that she would be “the 15th CSO to endure his wrath.”
On the worker’s first day at Beta, the construction superintendent commented about “another f---ing woman on my jobsite.” According to the worker, he also said to her, “Are you stupid? God damn woman, I should fire you.” After it became evident that the worker had a stutter, the superintendent said, “What’s the matter with you. Can’t speak… from now on I will tell what to say and when to speak.”
On the worker’s second and third day at Beta, she spoke to a female electrician about inappropriate work pants. The electrician and her employer – a contractor on the site – complained about the worker and the superintendent accused her of sexual assault, harassment, and discrimination against the electrician. He then called the worker – who was a lesbian – a “dyke” and threatened her with jail.
Worker felt bullied, harassed
On Jan. 15, 2019, the worker emailed the superintendent and others in management saying that she felt threatened and bullied by him and had filed a WorkSafeBC complaint. She believed that Thind didn’t conduct a proper investigation into the complaint with the female electrician and followed up herself, saying that she has rectified the matter.
On Feb. 10, Thind relocated the worker to another worksite nearby called “Alpha” so she wouldn’t have to work with the construction superintendent at Beta. The next day, the worker sent an email saying that “phasing me out is not a resolution” and she was filing a formal complaint.
In May, Thind hired a safety consultant to investigate the construction superintendent’s behaviour towards the worker and another employee, and to develop a new respectful workplace policy and complaint resolution procedure. The consultant issued an investigation report in July finding that the superintendent’s conduct met WorkSafeBC’s definition of bullying and harassment and breached the policy.
A few days later, WorkSafeBC issued an inspection report stating that Thind’s investigation and follow-up were compliant with its requirements.
Thind management met with the worker on Sept. 25 to explain the investigation results, but the worker wasn’t pleased because the company didn’t fire the superintendent.
Discrimination complaint
The worker filed a human rights complaint on Nov. 4, alleging that Thind, the superintendent, and another manager discriminated against her based on sex and sexual orientation.
In February 2020, the worker also submitted a claim to WorkSafeBC for compensation for a mental disorder stemming from the superintendent’s treatment. However, WorkSafeBC didn’t accept it because, although it found the superintendent’s behaviour was bullying and harassment, it didn’t constitute traumatic events warranting compensation for a mental disorder.
Thind and the individual respondents, the superintendent and the manager, sought to have the complaint dismissed under s. 27(1)(c) - there was no reasonable prospect of the complaint succeeding – s. 27(d)(ii) - proceeding with it would not further the purposes of the Code – and s. 27(f) - the substance of the complaint had already been dealt with by WorkSafeBC - of the BC Human Rights Code.
However, the tribunal found that there was a reasonable prospect that the worker’s complaint could succeed, particularly given the alleged comments made by the superintendent that could be linked to the worker’s sex and sexual orientation. The tribunal also determined that the actions of the company and the manager in response to the worker’s complaints, including transferring her to another site and issuing a verbal warning to the superintendent, didn’t fully address her concerns and didn’t warrant dismissal of the complaint under s. 27(1)(d)(ii).
WorkSafeBC addressed different issues
Furthermore, the tribunal concluded that the issues before WorkSafeBC - which involved assessing whether Thind's investigation into the worker’s allegations was fair and impartial – didn’t address the same legal issues as the human rights complaint and, therefore, didn’t preclude the tribunal from hearing the case under s. 27(1)(f).
The tribunal declined to dismiss the worker’s complaint, allowing it to proceed to a hearing. The tribunal also encouraged the parties to consider mediation as a means of resolving the dispute.
