Worker had requested modified work schedule continue as accommodation of mental disability, family status
A British Columbia worker’s discrimination complaint related to alleged harassment by supervisors and the ending of a modified work schedule has been dismissed because she already had the same issues addressed through labour arbitration.
The worker joined the BC public service in 2005. About seven years later in 2012, she requested that her work schedule be modified to allow her to fulfill her childcare obligations. Her request was granted.
In 2015, the worker moved to the provincial Ministry of Social Development and Poverty Reduction and she continued with her modified work schedule.
In 2020, the worker started suffering from a mental disability and she had to go on medical leave for about five months, starting in April. When she returned in September, she had a new supervisor.
A short time after the worker’s return from medical leave, her new supervisor told her that her modified work schedule was being discontinued and she would have to work the same hours as the rest of her work group. According to the worker, the supervisor also gave her tasks with unrealistic deadlines, inadequate time to complete a performance review exercise, and harassed her over an overpayment of her salary. He also called her on her personal phone when she took time off.
Worker filed bullying and harassment complaint
The worker submitted a bullying and harassment complaint against the supervisor and filed a grievance against the ministry for failing to honour her modified schedule.
The worker also felt that another supervisor singled her out and treated her poorly by questioning her working hours, ordering her to take unpaid leave when she couldn’t work for reasons beyond her control, and telling her co-workers not to answer her work-related questions. This supervisor also insisted she continue to report to her new supervisor against whom she had filed the complaint. The worker submitted a second bullying and harassment complaint, this time against the second supervisor.
In November, the worker requested that her modified work schedule be continued as an accommodation of her mental disability and family status, providing a doctor’s note. Her request was denied and informed her that she would be expected to work a regular schedule as of Dec. 21. The worker filed a second grievance over the ministry’s failure to accommodate her.
Just before her modified work schedule ended, the worker went on medical leave again. She remained off work until 2023, when she returned in a different job with different managers. In this role, she was able to continue with her modified work schedule.
Human rights complaint followed grievances
The worker filed a human rights complaint alleging that the ministry and the supervisors discriminated against her on the grounds of disability and family status.
An arbitration panel heard the worker’s grievances and bullying and harassment complaints, determining that her new position and modified schedule resolved some of the issues. It noted that the worker’s human rights complaint involved “essentially the same discrimination-based allegations as those raised and pursued in these proceedings.”
The panel found that the supervisors hadn’t singled out the worker for bad treatment, as the worker viewed all of their moves to be mistreatment after they told her that her modified schedule would be discontinued. It also noted that the ministry hadn’t agreed to permanently modify her schedule as it was an informal arrangement, and it found that the discontinuance was related to operational requirements, not discriminatory reasons.
The panel also found that the decision to discontinue the modified work schedule didn’t seriously interfere with a substantial parental duty and her doctor’s note didn’t establish a medical basis for a modified schedule. As a result, her disability and family status weren’t a factor in the decision, the panel said.
However, the panel found that management had been “generally insensitive” to the worker’s mental disability in how it handled the decision to discontinue the modified schedule and the relatively short notice it gave her, and this exacerbated her disability and led to her going back on medical leave. It also found that the worker was subject to investigations and privacy invasions that could have been avoided with more sensitivity to her condition.
The panel ordered the ministry to pay the worker $15,000 for the harassment complaints.
Arbitration panel addressed human rights issues
The ministry and the supervisors then applied to the BC Human Rights Tribunal to dismiss the worker’s human rights complaint because the arbitration panel appropriately dealt with the substance of the complaint.
The worker maintained that the panel’s decision didn’t deal with her human rights complaint and that the remedy awarded was inappropriate. She requested that the tribunal address issues she claimed were not resolved by the panel and raised concerns about the adequacy of the panel’s process.
The tribunal noted that s. 27(1)(f) of the BC Human Rights Code allows it to dismiss a complaint if “the substance of the complaint has been appropriately dealt with in another proceeding.” It had been established that labour arbitrators have jurisdiction to address human rights issues, so the tribunal considered whether the legal issue was essentially the same in that process and whether the worker had the opportunity to know and meet the case against her.
The tribunal found that the arbitration panel addressed the same issues raised in the worker’s human rights complaint – it examined if the supervisors harassed her and whether her protected grounds were factors in the decision to discontinue her modified duties. There was no need to assess whether the ministry met its duty to accommodate, as the panel determined the worker didn’t experience an adverse impact connected to her disability or family status, said the tribunal, adding that the $15,000 award took into account the ministry’s insensitivity to the worker’s disability.
The tribunal also determined that the worker had the opportunity to know the case she had to meet and a fair chance to meet it during the arbitration process. As a result, panel had appropriately dealt with the substance of the worker’s human rights complaint and allowing the human rights complaint to proceed would be a duplication of action, the tribunal said.
The tribunal rejected the worker’s submissions that the arbitration panel’s process was inadequate, noting that although she was unable to call witnesses, she had notice of the case to meet and a fair chance to meet it. As a result, “it does not make sense to expend further resources on the re-litigation of this dispute,” said the tribunal in dismissing the worker’s complaint.
