Alberta Human Rights Tribunal upholds decision in favour of Imperial Oil
A recent Alberta Human Rights Tribunal decision involving Imperial Oil serves to highlight an important “tool” that employers can use when it comes to discrimination complaints despite a “fair and reasonable” offer.
The employee, a 47-year-old man with attention deficit hyperactivity disorder (ADHD), filed a complaint with the Tribunal alleging that his employer, Imperial Oil, had discriminated against him on basis of mental disability and physical disability, in violation of section 7 of the Alberta Human Rights Act.
The director of the tribunal dismissed the claim, so the employee appealed that decision, but it was also rejected by the tribunal panel.
Fair and reasonable settlement from Imperial Oil refused
Imperial had offered the employee a hefty settlement – twice – which the employee had refused. On top of $25,000 for alleged human rights damages, the company offered $55,000 minus statutory deductions as a “retiring allowance.” The first offer of $80,000 was made without prejudice, followed by the same offer made with prejudice, meaning if accepted, the matter could not be filed again.
In a statement, the employee said he didn’t want to accept the offer because he didn’t want to be seen to have “resigned in disgrace” – a detail that Walter Pavlic, partner at MLT Aikins in Edmonton, said would not have any bearing on an HRT decision such as this.
“Whether or not he didn't want to resign in disgrace, if that’s his excuse, doesn't really matter,” said Pavlic. “I think implicit in the whole decision is that it was a fair and reasonable offer, and he refused it, and in the face of that refusal, the Human Rights Commission has no obligation to pursue his claim. And that's exactly what happened here.”
Employee had history of anger management, had been on medical leave
The employee worked for Imperial for over eight years, starting in 2011. In 2019, he had taken a nine-month leave of absence due to his ADHD – it was not specified in the decision exactly how the disorder affected his ability to work.
It was also indicated that an investigation into the employee that had been paused during the absence was continued upon his return to work in December 2019; Imperial was investigating serious allegations of threats of physical violence the complaint had made against other employees. A medical examination had cleared him for return to work, but his “anger management” issues continued, and he was terminated for cause on March 16, 2020.
“It's that attention deficit disorder piece that, I think, grounded the basis of Imperial’s offer, that he had some sort of physical or mental disability. That's why they felt they might have some potential exposure,” Pavlic said.
“If someone's just a really angry person, and they have no medical diagnosis, then you can terminate them for just being difficult. As long as there's some sort of medical basis, then you have the potential grounds for complaint.”
Imperial Oil settlement offer included social media cease order
After they filed their complaint with the Tribunal, the employee took to social media to wage a public campaign against Imperial. It was stipulated as a condition of Imperial’s settlement offers that he remove their public posts and cease future public comments about Imperial, its employees and contractors.
“The Human Rights Commission receives hundreds and hundreds of calls every day, and a lot of them just stop right there, at the intake level … This one was accepted and actually went through the process,” Pavlic said.
“But in this particular case, Imperial Oil quite rightly thought that they'd made a very reasonable offer. And so they went and asked it to be dismissed on the basis that if a fair and reasonable offer is made, the tribunal has the ability to dismiss it, and that's exactly the tribunal did.”
In the decision to dismiss the employee’s claim, the tribunal pointed out that recent awards for damages range from $25,000 to $50,000.
“Imperial offered to settle this complaint for $80,000. This was a fair and reasonable offer, which you refused,” the tribunal wrote.
Dismissal of discrimination claim based on refusal of fair and reasonable offer
The complainant alleged that when he was terminated for aggressive behaviour, intimidation, threats of violence and breach of confidentiality, Imperial did not take into account how his disability may have affected the offending behaviour.
However, the decision to dismiss the complaint was based on the complainant’s refusal of two settlement offers, as outlined in the decision.
“I find that the offer of general damages coupled with a retirement allowance is well within the reasonable range of the amount the complainant may have been awarded had the complaint received a full hearing by a tribunal. Even if the complainant’s full case were accepted as true, the respondent’s offer is well within the range of a fair and reasonable settlement,” the decision stated.
It also found the clause for the claimant to cease their social media campaign to be reasonably necessary, “in order to ensure a continued safe work environment for Imperial employees and/or contractors, to protect Imperial’s business and reputational interests, and to put an end to the complainant’s continued reckless, illegal, and threatening conduct.”
Section 21(3) of Labour Code an important tool for employers in human rights arbitration
“This one resonates quite loudly, because the guy had an $80,000 cheque basically handed to him and he turned it away, now he gets nothing,” Pavlic said, explaining that that is a reality for complainants who choose to negotiate or hold out for higher payouts.
Section 21(3) of the Alberta Human Rights Act stipulates that a tribunal director can choose to dismiss a claim if the claimant has refused what is determined to be a “fair and reasonable” offer.
It’s an important tool for employers to be aware of, said Pavlic.
“If you do make an offer that you believe to be fair and reasonable, and it's rejected, before you go to the next step and just go ahead with the hearing, make this type of application, make more use of Section 21(3),” he said.
“It's designed to shut down these idealogue types, the ones that are just hell bent to get their pound of flesh one way or another, and use the tribunal as a mechanism to do it; and I think that's why the legislation is in there. It certainly applied in this case.”
