B.C. ruling looks at complaint claiming bullying based on ethnicity, disability
In a recent decision, Seyed-Ali v. Central City Brewers and Distillers Ltd. (No. 3), the British Columbia Human Rights Tribunal confirmed that the Human Rights Code does not protect individuals from “general bullying and harassment”; it is intended to protect individuals from bullying and harassment that is connected to a protected ground such as ethnicity.
Seyed-Sepehr Seyed-Ali was employed by Central City Brewers and Distillers (CCBD). His co-worker, Kory Black, was responsible for training him. The two men did not get along.
Seyed-Ali complained to CCBD about Black’s treatment towards him. As a result, an investigation was conducted into Black’s conduct. The investigation concluded with Black receiving a written warning for using inappropriate language and volume.
Seyed-Ali was not satisfied with this outcome and he refused to return to work after his medical leave ended. As a consequence of his unauthorized absence from work, his employment was terminated.
Seyed-Ali filed a complaint against CCBD with the British Columbia Human Rights Tribunal. He alleged that he was bullied and harassed by Black based on his ethnicity and disability. In his complaint, Seyed-Ali said that he is from the Middle-East and speaks with an accent; Black is white.
CCDB brought an application to dismiss the complaint without a hearing, on the grounds that the complaint had no reasonable prospect of success. The complaint was initially dismissed. However, the tribunal subsequently discovered that Seyed-Ali had filed a further submission which was not brought to its attention during the original hearing.
Based on this new information, the application was reconsidered and dismissed, which allowed the complaint to proceed. For more information on the background of this case, please click to read my previous blog.
Seyed-Ali’s complaint was dismissed in its entirety after the tribunal concluded that there was no evidence to prove that his ethnicity had anything to do with Black’s treatment towards him or the termination of his employment.
The tribunal held that Black’s conduct during the meeting on June 19, 2018 did not amount to discrimination. The tribunal agreed with CCBD’s assessment that Black was mimicking Seyed-Ali in the way a child mimics another child and that it had nothing to do with his accent; Seyed-Ali did not speak with a “specific accent”.
The tribunal concluded that Seyed-Ali did not perceive that Black’s behaviour was motivated by racial discrimination at the time of the incidents and instead made these connections after his employment was terminated. The tribunal came to this conclusion because Seyed-Ali never made reference to his ethnicity or accent in any of his communications to CCBD.
The tribunal held that Seyed-Ali’s lack of reference to his accent or ethnicity was detrimental to his position that Black’s conduct towards him was connected to his ethnicity.
The tribunal also rejected Seyed-Ali’s argument that he did not have to be explicit about the connection to his ethnicity when he raised his complaints to CCBD. The tribunal commented that “employers are not mind readers” and based on the events that transpired, there was “no reasonable way” that CCBD “knew or ought to have known” that ethnicity was connected to Seyed-Ali’s complaint.
The tribunal held that if Seyed-Ali felt that his ethnicity was connected to Black’s treatment of him, he should have raised it at the time. The tribunal concluded that by not raising the issue of ethnicity, CCBD’s obligation to respond reasonably and appropriately to the alleged discriminatory conduct was not triggered. The tribunal held that CCBD “does not have to investigate things it does not, or could not, know.”
After assessing Seyed-Ali’s conduct at the hearing as well as his interactions with CCBD, the tribunal concluded that he was thoughtful, articulate and assertive. The tribunal, therefore, did not accept that Seyed-Ali would have been hesitant to raise the issue of ethnicity if he truly believed it was an issue. The tribunal also did not believe that this was a case where Seyed-Ali was so traumatized that he blocked out the events and later recovered them.
The tribunal concluded that discrimination could not be inferred from Black’s conduct. The evidence suggested that he treated people poorly, regardless of ethnicity. The tribunal held that “while Mr. Seyed-Ali suffered negative impacts from Mr. Black’s conduct, he did not suffer a discriminatory impact.”
The tribunal also concluded that the termination of Seyed-Ali’s employment did not give rise to a valid cause of action. Even if one of CCBD’s reasons for terminating his employment was because he complained about Black’s conduct towards him, “it still lacks the connection to his ethnicity to bring it under the protection of the Code.”
For the above reasons, the complaint was dismissed in its entirety.