But tribunal allows complaint about accommodation of mental disability
A worker’s complaints of sex discrimination from a colleague’s treatment of her and her employer’s handling of the matter have been dismissed by the BC Human Rights Tribunal as having no reasonable prospect of success, although the tribunal allowed her complaint on how her employer accommodated her mental disability to proceed.
“I think people get confused that if someone is bullying or harassing them and they're just a jerk to everybody, it's not discriminatory just because it's a woman to a woman or whatever it is - there was no element to show that it was sexual because of her gender,” says Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver.
The worker was a full-time crisis intervention worker (CIW) for the City of North Vancouver. Her job involved providing initial support services for victims of crime.
In June 2016, the worker made an internal complaint about another CIW. The worker alleged that her colleague asked her questions of a sexual nature in August 2015 that constituted sexual harassment. She also claimed that the colleague told her in early 2016 that she hated her, she didn’t trust women, and later told her that if she told anyone about a previous conversation, she would kick the worker’s “teeth down her throat.” The worker believed that the colleague was referring to the sexual questions.
The worker also alleged that the colleague swore at her in response to a joke. The worker said that she developed anxiety and mental health issues because of how her colleague treated her. However, she said that she wouldn’t submit a formal complaint because she wanted to proceed “informally.”
Informal investigation
An HR advisor investigated the complaint and told the worker that she would need to continue working with the colleague, as they were the only two full-time employees in the unit. The advisor also determined that the colleague did not bully or harass the worker, but their interpersonal conflict should be addressed.
The worker went off work on July 4, saying she was “overwhelmed with fear and paranoia.”
In the fall of 2016, the worker’s family doctor and psychologists developed a graduated return to work plan that recommended no direct communication with the colleague. The doctor also suggested that the worker not participate in “contentious conversations” about the colleague.
When the worker returned to work, the city separated them, but the worker’s supervisor repeatedly mentioned her dispute with the colleague. In mid-October, the colleague reported to the supervisor that she overheard the worker talking about her and someone with the worker took a photo of her. The worker said these were false allegations and made her anxiety worse. She went off work again on Oct. 17.
The city retained an independent investigator, who determined that the colleague’s concerns were reasonable. The colleague was satisfied and didn’t file a formal complaint.
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Human rights complaint
In April 2017, the worker filed a human rights complaint, alleging that her colleague discriminated against her on the basis of sex with her comments and the city discriminated against her on the basis of mental disability by not addressing the colleague’s threats against her and failing to investigate her allegations of bullying, harassment, and discrimination. She also claimed that the colleague made false allegations against her and the city failed to follow her medical restrictions and properly accommodate her during her graduated return to work.
The worker returned on another graduated return to work in November 2017.
On Feb. 28, 2018, she filed another complaint, alleging that the city retaliated against her for her human rights complaint, including denying her request to have a different supervisor, a written warning about or obligations while working without a security clearance, and a reprimand about her tone in email communications.
The city applied to have the worker’s complaints dismissed as having no real prospect of success.
The tribunal found that the colleague’s questions of a sexual nature occurred in August 2015. By the time the worker filed her human rights complaint in April 2017, the one-year limitation period had elapsed. As a result, the complaint related to this conversation was out of time, said the tribunal.
Employees must be able to show evidence beyond their own suspicion to connect unfair treatment to a discriminatory reason, says a lawyer.
Nexus with protected characteristic
As for the other elements of the worker’s complaint, the tribunal noted that for there to be discrimination, the worker must be able to show that she had a protected characteristic under the BC Human Rights Code, the city’s conduct had an adverse impact on her, and there was a nexus between her protected characteristic and the adverse impact.
The worker claimed discrimination on the basis of sex, which was a protected characteristic. However, there was no evidence that the colleague’s threat referred to the sexual questions from several months earlier beyond the worker’s speculation, said the tribunal.
The tribunal also found nothing indicating a connection between the colleague swearing at the worker after a joke and the worker’s sex. Ultimately, the worker alleged that the colleague spoke to her inappropriately in response to a joke and showed anger for reporting a conversation they had. The tribunal found that neither complaint had a reasonable prospect of succeeding.
“It wasn't that [the colleague] was commenting to the worker based because of her sex,” says Samuels. “She was making comments of a sexual nature, but she could have as easily said them to a man - it wasn't because [the worker] was a woman.”
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Employer investigates
In addition, it was unclear if the worker requested to be separated from the colleague and she initially wanted to settle things informally. The city did separate them when the worker returned from her medical leave and the worker’s complaints were investigated, first by an HR advisor and then an external investigator, said the tribunal in finding this element of the worker’s complaint had no reasonable prospect of success.
However, the tribunal found some merit to the worker’s claim that the city didn’t follow her graduated return-to-work instructions, as there was a chance that the worker could establish that her supervisor spoke to her about her issues with the colleague despite direction not to. There were other issues with the accommodation process that should be addressed at a hearing, since the city didn’t provide sufficient evidence of its accommodation efforts that could refute the worker’s claim, said the tribunal.
It looked like the city responded to the worker’s complaints properly, says Samuels.
“They investigated, they tried to make responsive recommendations to address a conflict between [the worker and the colleague], they said they were going to make efforts to give the supervisor directions about the return-to-work process,” she says. “There was still a question of whether the city had actually made a reasonable effort, so that was the only element of the complaint that was allowed to proceed.”
“I think that the tribunal would have dealt with [the accommodation issue] in this decision, but unfortunately for the city, they didn't provide evidence and now they have to go to another hearing about that issue,” says Samuels. “Who knows why they didn't do it at the time, but I'm sure in hindsight they wish they had.”
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No retaliation after complaint
The tribunal dismissed the retaliation complaint as having no reasonable prospect of success, finding that there was no evidence that the actions of the city were anything more than reasonable instructions and directions.
The tribunal dismissed the allegations of discrimination relating to the colleague’s conduct towards the worker, the city’s investigation of the worker’s complaints, and retaliation for her human rights complaint, all as having no reasonable prospect of success. It allowed the complaint relating to accommodation and the graduated return to work to proceed to a hearing.
Since most of the worker’s complaints were dismissed, there probably wasn’t much else the city could have done, says Samuels.
“When you have a situation like this, any employer has to ensure that they have dotted their i’s and crossed their t's and made sure they've done a really thorough investigation,” she says. “Because otherwise, they're going to be subjected to a safety complaint and/or a human rights complaint - the time and effort to defend these claims are significant, so you want to make sure that you've done a thorough investigation.”
