The British Columbia Human Rights Tribunal recently heard a complaint from an employee of the City of Kamloops (the “City”). The complainant, an employee who was also the son of a former councillor, claimed that he had been discriminated against on the basis of his ancestry, family status, and sexual orientation. The claim was dismissed as the Tribunal held that a reasonable settlement offer had been made by the City and had been rejected by the Employee.
The complainant argued that he had been discriminated against and harassed by a former co-worker. Between 2011 and 2016, the employee lodged many internal complaints with the City about his co-worker’s conduct about persistent derogatory comments. Each of these complaints was investigated, however, no significant changes were made to the employee’s work environment. In 2017, the employee’s co-worker bumped into him and then proceeded to mock him. The employee left work and advised his supervisor that he did not feel safe around his co-worker.
An investigation was undertaken which found that the co-worker had, in fact, made numerous derogatory remarks towards the employee between 2011 and 2016, and that the co-worker had bumped into the employee and had subsequently mocked him.
As a result of the investigation, the City took the following steps:
- imposing significant discipline on the co-worker;
- giving the complainant an opportunity to return to his previous employment;
- removing the co-worker from the employee’s department and prohibiting him from working while the employee worked; and
- providing harassment training to all employees.
The City also made a with prejudice settlement offer (the “Offer”) as follows:
- acknowledge that the employee experienced harassment;
- continue its regular training on bullying and harassment to both staff an dmanagement;
- pay of $7,657.65 to restore the employee’s used sick time, and an additional $8,085.05 in lost wages less required deductions; and
- pay the sum of $34,000.00 as damages for injury to dignity pursuant to Section 37(d)(iii) of the Human Rights Code (the “Code”).
The employee rejected the settlement offer.
The Tribunal’s Analysis
The City applied to dismiss the employee’s complaint pursuant to Section 27(1)(d)(ii) of the Code. The City argued that it would not further the purposes of the Code to proceed to a hearing in light of the Offer.
The Tribunal conducted a two-part analysis to determine whether the complaint should be dismissed. The first part of the analysis required the Tribunal to consider whether the Offer is reasonable. To make this assessment, the Tribunal considered what appropriate remedy may be issued if each of the allegations were proven in a hearing. The factors considered to make this assessment were listed in Issa v Loblaw Companies and include:
- whether the settlement offer is with prejudice such that it may be referred to in an application to the Tribunal; and
- whether the City’s remedial actions adequately remedy the alleged violation, and are consistent with the types of orders the Tribunal may make if the complaint were successful.
The employee argued that the Offer was not reasonable as it did not hold management accountable, and did not undo the harm he had experienced. The Tribunal disagreed and held that the City had been fully accountable to the employee as it acknowledged the harm he had suffered. As a result, the Tribunal held that the Offer was reasonable.
The second part of the analysis required the Tribunal to consider whether it furthered the purposes of the Code to proceed despite the reasonable settlement offer. In finding that the purposes of the Code were not furthered by proceeding with a hearing, the Tribunal noted that there is a strong public policy interest in encouraging parties to resolve claims of discrimination in a good faith and voluntary basis. For that reason it does not further the purposes of the Code to proceed with a hearing where there is a reasonable settlement offer.
You can find the full text of the Human Rights Tribunal’s decision here.
If you have questions about Human Rights in the workplace, we encourage you to contact one of our lawyers.