Cannabis in the Workplace and Employer Rights

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In a recent decision, Aitchison v L&L Painting and Decorating Ltd., 2018 HRTO 238, the Ontario Human Rights Tribunal (the “Tribunal”) upheld the termination of an employee who was using cannabis at work, ostensibly for medical purposes.

Background

The employer was a commercial contractor involved in restoring high-rise buildings. The complainant worked for the employer as a seasonal painter from 2011 – 2015. The complainant suffered from chronic pain in his back and neck as a result of a degenerative disc disease and started using medical cannabis in March 2015 to manage the pain. Before that, he had been self-medicating with cannabis.

In order to perform his job, the complainant worked on a “swing stage” that was suspended outside the building. On the morning of June 18, 2015, the site supervisor saw the complainant smoking cannabis while on the swing stage, which was at a level of 37 floors. The complainant was also not wearing a hard hat and was untethered. The supervisor sent the complainant home in accordance with the General Contractor’s zero tolerance policy on the use of intoxicating drugs and alcohol on the worksite (the “Policy”) and the complainant was ultimately terminated on July 6 by the employer. The complainant then filed a human rights complaint on the ground of discrimination based on disability; namely, that the employer had failed to accommodate him.

Hearing

At the hearing, the complainant argued that his disability was a factor in the employer’s decision to terminate his employment and that in relying on the Policy, the employer failed to take an individualized approach to his accommodation needs. The complainant also argued that the employer should have inquired whether his use of cannabis was for medical purposes, or possibly part of an addiction.

The complainant also stated that he had an understanding with the site supervisor that he could medicate in a designated spot away from the rest of the crew during his breaks and that he medicated himself on the swing stage, because he worked on the 37th floor which left no time for him to go down to the ground level during his breaks.

The employer stated that it had terminated the complainant because of health and safety concerns relating to impairment while at work. The employer stated that it would have been reckless for it to have allowed the complainant to work in a potentially intoxicated state and that if the General Contractor had observed these events, the employer could have lost its contract.

The employer also produced evidence to show that subcontractors were contractually obliged to adopt the General Contractor’s Policy and that zero policies were common in the construction industry. The evidence also showed that all employees had been provided training, which included watching a health and safety video that referenced the Policy.

Decision

The Tribunal found that given the health and safety risks inherent to that particular worksite, the dismissal of the complainant was not discriminatory and that the employer had not acted in a discriminatory manner. In reaching this decision, the Tribunal considered the following:

  • There was no evidence to indicate that the site supervisor had condoned the cannabis use;
  • There was no evidence to indicate that the complainant had requested an accommodation in relation to the cannabis use;
  • It was the complainant’s choice and preference to self-medicate while at work and if the complainant had asked his physician whether he should medicate at work, the physician would have instructed him not to, given the nature of the complainant’s job;
  • There was no evidence to suggest the complainant was addicted to cannabis; and
  • The employer did not apply the Policy in a mechanical way, but instead considered the specific circumstances.

The Tribunal noted that an employee does not have an absolute right to smoke cannabis at work regardless of whether it is used for medicinal purposes and that an employer is not required to accommodate preferences with regard to using cannabis if doing so would amount to undue hardship. The Tribunal also noted that the employer had no obligation to consider whether it could reasonably accommodate the complainant after the fact, i.e., after the complainant had provided grounds for his termination. The Tribunal further noted that it would not be reasonable to expect that the employer would have had to formally test the complainant’s level of impairment, before it could raise a health and safety issue.

In finding that the Policy itself was not discriminatory, the Tribunal considered the following:

  • Zero tolerance policies are commonly used in the construction industry given the safety risks inherent in that industry;
  • The employer adopted the Policy in the honest belief that allowing someone intoxicated into the worksite was a serious risk to that individual as well as the public;
  • The Policy was reasonably necessary to protect the health and safety of the workers and the public;
  • The Policy did not impose automatic termination as a condition – it only required the removal of an intoxicated employee from the job site.
  • The Policy did not preclude the accommodation of employees who needed to use medical cannabis as such employees could be accommodated in non-safety sensitive positions; and
  • The Policy did not stigmatize the use of marijuana based on its history as an illegal substance.

Employer Takeaways

  • Employees do not have an absolute right to smoke cannabis at work even for medicinal purposes.
  • An employer does not have to accommodate employee preferences in relation to cannabis use if it would result in undue hardship.
  • An employer is not required to consider whether an employee needs accommodation, after an employee has already provided the grounds on which the termination is based.
  • Note the factors to be considered in drafting a zero tolerance impairment policy
    See also our previous post on “Medical Cannabis and Undue Hardship” https://integritasworkplacelaw.com/medical-cannabis-undue-hardship/

Termination for Off-Duty Conduct

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In the recent decision of Klonteig v. West Kelowna (District), 2018 BCSC 124, the BC Supreme considered when an employer could terminate the employment relationship based on off-duty conduct.

Background

Mr. Klonteig was the Assistant Fire Chief for the City of West Kelowna (the “Employer”). Prior to taking up the position with the Employer, he had worked for the City of Kelowna for 13 years. In all, Mr. Klonteig had been a firefighter for about 23 years.

In the early morning hours of October 7, 2013. as he was driving home with his wife, Mr. Klonteig was pulled over by an RCMP officer on suspicion of impaired driving. At the time, Mr. Klonteig was driving the vehicle of the Employer’s Fire Chief even though he was off duty. When Mr. Klonteig failed a roadside breathalyzer test twice, the officer impounded the vehicle and issued Mr. Klonteig a 90-day administrative driving prohibition.

Mr. Klonteig reported the incident to the Fire Chief later that same day after which he and the Fire Chief met with the Employer’s Human Resources Advisor (HR Advisor). Initially, the Employer thought that Mr. Klonteig had received a 24-hour suspension. When it found out that the suspension was for 90 days, the matter was escalated to the Chief Administrative Officer (CAO). The CAO decided to terminate Mr. Klonteig’s employment despite the objections of the Fire Chief and the HR Advisor who urged him to consider a lesser form of discipline.

Mr. Klonteig was considered to be an exemplary employee and had no prior disciplinary record. Additionally, Mr. Klonteig was very forthright, honest, distraught and remorseful about what had happened. Mr. Klonteig was 48 years old at the time his employment was terminated.

Decision

Mr. Klonteig sued the Employer for wrongful dismissal and the issue before the court was whether the Employer had cause to dismiss Mr. Klonteig.

The Court noted that off-duty conduct could give rise to a just cause termination if the conduct in question was, or was likely to be, prejudicial to the interests or reputation of the employer. The court stated at paragraph 60:

“While there is no single test which defines the degree of misconduct that will justify summary dismissal, it is clear that the misconduct must be considered in the context of the circumstances surrounding the misconduct and the nature of the employment relationship. Misconduct arising in one employment context might justify summary dismissal while it will not in a different employment context”.

In reviewing the case, the court noted the following: the vehicle Mr. Klonteig was driving at the time of the off-duty incident was not marked as a City of West Kelowna vehicle; there was no public knowledge of Mr. Klonteig’s administrative suspension; and Mr. Klonteig held an administrative, as opposed to a public-facing, role. The court also took note of the fact that 24 of Mr. Klonteig’s peers had signed a letter supporting him, stating that members of the public were unlikely to lose confidence in Mr. Klonteig, if his peers still supported him.

The court also considered the fact that the officer had imposed an administrative license suspension on Mr. Klonteig instead of a criminal charge and commented that there was no evidence that “the public at large would have been offended by Mr. Klonteig’s lack of judgment being sanctioned by a lengthy suspension without pay.”

Based on all of the above factors, the court found that the Employer did not have just cause to terminate Mr. Klonteig and awarded him severance pay based on the termination clause in his contract of employment.

Employer Takeaways

  • Employers can terminate employees for cause, for off duty misconduct.
  • In order for a just cause termination on the basis of off-duty conduct to be upheld, the conduct must be, or must likely be, prejudicial to the interests or reputation of the employer.
  • While each case must be assessed on its own merits, the following factors are relevant:
  • The degree of moral reprehensibility of the conduct
  • The nature of the charge against the employee; for example, whether it is a criminal charge, an administrative penalty, or a civil charge
  • The trust and confidence placed by the public in the employee’s role
  • Whether the public is aware of the misconduct
  • Whether the employee’s role is administrative or public-facing
  • Peer support of the employee, or lack thereof

Mental Disorder Presumption – BC

The British Columbia Workers Compensation Amendment Act, 2018 (Bill 9) has received Royal assent and is now in effect. This legislation creates a mental disorder presumption for first responders who are exposed to traumatic events as part of their employment.

The presumption means that in BC, first responders who are exposed to one or more traumatic events arising out of and in the course of their employment and have a mental disorder that is recognized as a condition that may arise from exposure to a traumatic event, do not have to prove that the mental disorder is a reaction to a traumatic event related to their work.

The presumption applies to correctional officers, emergency medical assistants, firefighters, police officers and sheriffs but does not extend to call-takers and dispatchers.

With this amendment, BC joins seven other Canadian jurisdictions that currently have legislative presumptions in relation to work-related PTSD/mental disorders. These jurisdictions are: Alberta, Manitoba, New Brunswick, Nova Scotia, Ontario, Saskatchewan and Yukon.

Medical Cannabis & Undue Hardship

In the recent decision of Lower Churchill Transmission Construction Employers’ Association and IBEW, Local 1620arbitrator John Roil, QC, dismissed a grievance where an employer, Valard Construction LP (the “Employer”) refused to hire an employee using medical cannabis, on the basis of undue hardship.

Background

The Grievor applied for the position of Utility Person on the Churchill project with the Employer. The Grievor used medical cannabis to manage pain relating to osteoarthritis and Crohn’s Disease. The medical cannabis had been prescribed by the Grievor’s physician after attempts at treating his pain with conventional treatments had been unsuccessful.  The Grievor ingested 1.5 grams of cannabis at a THC level of less than 20% each evening, through vaporization.

The job that the Grievor had applied for required a satisfactory drug and alcohol test and the Grievor informed the Employer of his cannabis prescription prior to testing.  When the results tested positive for THC, the Employer sought further medical information regarding the Grievor’s cannabis prescription. The Grievor’s prescribing physician provided information to the effect that while the Grievor should not drive for four hours after inhaling the cannabis, he could perform his day time job without impairment. Dissatisfied, the Employer sought further information.

While the Employer was awaiting the additional information, the Grievor sought to apply for another position which had been posted, that of an Assembler. When the Employer refused to consider him for the position while waiting for the additional medical information, the Union filed a grievance on behalf of the Grievor. The Union argued that the Grievor had the necessary qualifications and experience to perform the work for which he had applied and that the Employer’s refusal to accommodate and individually assess the Grievor’s ability to perform the work, was a failure to accommodate him and a violation of his human rights. The Union also pointed out that the Grievor had worked without issue for another employer on the Churchill project, while undergoing cannabis treatment.

The Employer argued that the positions that the Grievor had applied for were safety sensitive and that as part of the Employer’s legal obligation to ensure a safe workplace under occupational health and safety legislation, it had to determine whether the Grievor was able to work without impairment. The Employer stated that it had sought information to assess the Grievor’s situation on an individual basis but that the amount of information provided by the prescribing physician was limited. The Employer further argued that because there was no way to measure impairment from the Grievor’s use of cannabis as there was no test for measuring current impairment from cannabis, it increased the workplace safety risk and this amounted to undue hardship.

Decision

Based on the evidence, the Arbitrator found that the positions that the Grievor had applied for, were safety-sensitive. The Arbitrator also found that the Grievor had a disability, which required accommodation and that this accommodation had to be determined on the basis of an individualized assessment and in order to do this assessment, the Employer needed reasonable medical information.

Based on the expert testimony provided, the Arbitrator noted that THC can cause impairment, and that depending on the dose, the impairment could last up to 24 hours after last use because of the long half-life of THC. The Arbitrator further noted that as there currently is no test to accurately measure impairment arising from the regular use of cannabis, the use by the Grievor of medical cannabis was a legitimate safety concern in relation to safety sensitive positions and that under the Occupational Health and Safety Act regulation, workers are prohibited from being on a job site while their ability to perform work is impaired. Given these circumstances, it would be undue hardship for the Employer to permit the Grievor to work in the positions that he had applied for. At page 60, the Arbitrator stated, “if the Employer cannot measure impairment, it cannot manage risk”. The Arbitrator also noted that it would not be possible to address these issues through random testing, given the lack of ability to measure current impairment from THC use.

Employer Takeaways

  • Accommodating an employee who uses medical cannabis in a safety sensitive position would amount to undue hardship as it poses an increased safety risk, which an employer cannot measure as there is no ability to measure current impairment from use of THC.
  • Accommodation of an employee using medical cannabis must be assessed on an individualized basis.
  • Random testing is not a solution, as there is no testing available to accurately measure current impairment of regular cannabis use.
  • Although it may amount to undue hardship to permit an employee who uses medical cannabis to work in a sensitive position, the employer’s duty to accommodate would require the employer to explore other options such as placing the employee in a non-safety sensitive position.

Workplace Incivility

In today’s frenzied world, dominated by the unparalleled use of social media to viciously attack people, incivility appears to be on the rise in society at large, as well as in the workplace.

While a rude, uncivil and inconsiderate work environment destroys morale and can negatively impact an employer’s bottom line, workplace incivility appears to be alive and well and indeed “thrive” in some organizations.

Reasons for organization incivility

The reasons for workplace incivility, include:

poor behaviour modelled by the organization’s leader or leaders
ignoring bad behaviour of organizational “stars”, such as rainmakers and top salespeople
disregarding the bad behaviour of personal favourites and protégés
moving ‘problem’ employees within the organization instead of dealing with the issues
focusing and encouraging individual performance over teamwork
deliberately creating a culture of conflict to keep employees on their toes

Costs of workplace incivility

In addition to causing psychological damage, incivility in the workplace, if unchecked, can impact overall productivity, morale and profitability.

The costs of workplace incivility can manifest itself in a number of ways including:

  • high absenteeism
  • high turnover
  • decreased work effort
  • increased grievances
  • poor customer service
  • decline in performance
  • human rights and other complaints

Tips for a civil workplace

What can employers do to build and maintain a civil and respectful work environment?

  • model good behaviour – while a civil work environment requires everyone’s commitment, it is critical for an organization’s leaders to set the tone
  • reward good behaviour
  • set behavioural expectations at time of hire and monitor behaviour throughout
  • consider a potential candidate’s “civility” when hiring, not just their technical skills
  • teach employees to take responsibility for their own actions
  • rely on facts, not assumptions, when dealing with complaints and conflicts
  • deal with uncivil behaviour promptly; be clear that repetition could result in a parting of ways
  • do not “tolerate” bad behaviour from organizational “stars” – treat everyone even-handedly

Can post-employment conduct constitute discrimination?

Is it possible for an employer’s post-employment conduct to constitute discrimination?

In BJ Simon and S Simon & Yukon Human Rights Commission v Rhonda Sallows, Owner, White Tornado Cleaning Services, the Yukon Human Rights Board of Adjudication (the “Board”) answered this question in the affirmative when it found that an employer’s post-employment treatment constituted discrimination under the Yukon Human Rights Act.

BACKGROUND

The two complainants in this case, were sisters. They were First Nations and members of the Tetlit Gwich’in. The complainant Suzannah Simon started working for Rhonda Sallows (the “Respondent”) on July 9, 2015 and the complainant Bobbi-Jean, on July 8.

They complainants worked as cleaners and were in a group of about nine, most of whom were women. The complainants stated that their co-workers were alright to work with but when the Respondent showed up, there was a lot of swearing and yelling. On one occasion, when the complainants were on their way to pick up their pay cheques, Bobbi-Jean’s cell phone rang, and they overheard the Respondent telling someone that she was waiting for two “stupid-ass bitches” to come pick their cheques. While they returned to work after that incident, both complainants subsequently decided to quit as they did not like the Respondent’s attitude. Accordingly, they quit their employment on July 23rd.

When they were not paid their final wages as expected, Bobbi-Jean texted the Respondent inquiring about their wages, on July 27. This resulted in the Respondent sending Bobbi-Jean a string of texts which contained comments like “You FAS kuds [sic]”, “And pill poppers”, “I have envelopes for you two squaws!”.

On July 28, the Respondent also left a voicemail on Bobbi-Jean’s phone stating, “I got your envelopes you two squaws… I’m not doing your gong show. Your. All your bullshit. You guys are trouble…”

The complainants filed a complaint with the Yukon Human Rights Commission (the “Commission”) on August 7, alleging that the Respondent harassed them in connection with their employment on the grounds of ancestry and sex by referring to them in derogatory terms.

The Hearing

At the hearing, the Commission submitted that the Respondent engaged in a course of vexatious conduct, that the word “bitch” is a gendered pejorative, the term “squaw” is a gendered racist pejorative targeting Indigenous women and that the term “FAS kuds” (which presumably meant FAS kids), was rooted in the racist stereotype that First Nations people abuse alcohol.

The Commission sought damages of $7,500 for each complainant for injury to dignity, feelings and self-respect.

The Decision

The Board concluded that the Respondent had engaged in a course of vexatious conduct on July 27 and 28 and that the name calling by the Respondent was repeated, and abusive in tone and content.

On the issue of whether the vexatious conduct referred to one or more prohibited grounds of discrimination, the Board held that while the word “bitch” could be a gendered pejorative and was quite inappropriate, based on the evidence, it did not constitute discrimination. However, the Board concluded that the use of the word “squaw” and “FAS kuds” was racist, pejorative and unquestionably derogatory and referenced the prohibited grounds of sex and ancestry.

The Board held that although the impugned conduct occurred after the complainants quit their employment, it happened during their dealings with the Respondent in connection with their employment, i.e., as they were trying to collect their final pay and that consequently, it amounted to discrimination.

Considering the relatively short duration of the employment and the harassment, the Board awarded each of the Complainants damages in the amount of $2,500 for injury to dignity, feelings and self-respect.

Takeaways

Generally, claims of discrimination in employment relate to conduct that occurs or occurred, during the employment relationship. However, this decision shows that an employer’s post-termination conduct can lead to a finding of discrimination.

While the post-employment conduct must still be “in connection with the employment” of the complainant, for it to constitute discrimination in employment, employers should treat former employees with respect and courtesy as a matter of best practice.

Does Income from Second Job Constitute Mitigation?

In a recent decision of the BC Court of Appeal, Pakozdi v. B & B Heavy Civil Construction Ltd., 2018 BCCA 23, the Court clarified when post-termination income from a second job counts as mitigation.

BACKGROUND

David Pakozdi, the respondent, was an experienced bid estimator and construction professional. After providing briefly providing consulting services to B & B Heavy Civil Construction Ltd., the appellant, for a couple of months, he became an employee of the appellant in January 2014.

When he started working for the appellant, it was agreed to by the parties that Mr. Pakozdi could continue to provide consulting services to some of his former clients as long as it did not interfere with his duties or create a conflict of interest. Further to this, Mr. Pakozdi did some consulting work for Mainroad towards the latter part of 2014. His earnings from Mainroad varied from month to month. His salary from the appellant was $130,000 per year.

In January 2015, approximately one year after he started working for the appellant, the appellant terminated Mr. Pakozdi’s employment and provided him with approximately two weeks notice. Mr. Pakozdi sued for wrongful dismissal.

Trial Decision

The trial judge noted that Mr. Pakozdi was entitled to five months reasonable notice based on his experience, age and length of employment but that he should receive an additional three months because his physical and medical condition would make it more difficult for him to find alternative employment.

B & B argued that Mr. Pakozdi was not entitled to any damages as he had earned more than he would have earned at B & B in the three months after his termination through the work he did for Mainroad.

The trial judge disagreed with B & B’s argument on the issue of mitigation and held that where an employer was aware that an employee would be working at two jobs, it was proper to exclude the post-termination income from the second job, from the calculation of damages.

B & B appealed the decision on two grounds – the issue of mitigation and the length of the notice period. Mr. Pakozdi cross-appealed on the employer’s failure to award damages relating to the loss of RRSP payments.

COURT OF APPEAL

The Court of Appeal disagreed with the trial judge’s two-step analysis of assessing the proper notice period and held that while an employee’s health could be relevant to the assessment of the reasonable notice period, it was not an independent factor that would increase the notice period. The Court noted that in any event, Mr. Pakozdi’s health did not affect his ability to work as he had continued to consult while working for B & B and had accelerated his work, after he was terminated. Based on this analysis, the Court held that the proper notice period was five months.

On the issue of mitigation, the Court stated that mitigation can arise in one of two ways: (1) reducing the loss by taking reasonable steps to replace the lost income through new employment, or avoidable loss; and (2) when the loss is reduced by replacing the income with new income that would not have been earned if the previous employment relationship had continued, i.e., avoided loss.

The issue in the Pakozdi case was whether Mr. Pakozdi had effectively “avoided loss” by ramping up his consulting business and replacing his employment income during the notice period, with that consulting income.

The Court held that the trial judge had erred in excluding all income from the second job. What should properly be excluded is the income from the second job that could have been earned had the employment from the first job continued. In other words, the question is “whether the new income is replacement income regardless of the source of the income or a continuation of supplementary income being earned prior to the dismissal”.

Applying the above principle, the Court calculated that approximately $30,000 of Mr. Pakozdi’s earnings during the five-month reasonable notice period was replacement income and should be deducted from the damages otherwise payable to him by the appellant.

The Court also allowed Mr. Pakozdi’s cross appeal in part and awarded him a modest sum of $2,500 for the loss of RRSP payments.

Takeaways

Income from a second job can amount to mitigation and will be deducted from damages owed to the employee, if the income from the second job is found to be replacement income.

While an employee’s health could be relevant to the assessment of common law reasonable notice, it is not an independent factor that would increase what would otherwise be the proper notice period.

Noteworthy employment/human rights cases (BC 2017)

BCHRT v. Schrenk, 2017 SCC 62

In this decision, the SCC expanded the scope of the “workplace” in relation to human rights.
This case involved M, a Muslim Iranian descent who worked for Omega and Associates Engineering Ltd., and S, a site supervisor who worked for Clemas Contracting Ltd., the prime contractor on a road improvement project. While on site, S frequently taunted M based on his religion and place of origin as well as his sexual orientation. M complained to Clemas and S was eventually removed from the worksite and terminated. M then filed a complaint with the BC Human Rights Tribunal against S and Clemas (the “Respondents”) alleging discrimination. The Respondents argued that the Tribunal did not have jurisdiction to hear the matter as there was no employment relationship between M and the Respondents. The Tribunal proceeded on the basis that any discrimination suffered “regarding employment” could attract the protection of the BC Human Rights Code. The Supreme Court of Canada agreed and held that discrimination regarding employment can be perpetrated by someone other than the complainant’s employer or superior in the workplace and that the protection of the Code extends to all employee who suffer discrimination with a sufficient connection to their employment context.

Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42

In this case, the BC Supreme Court confirmed that the test for dismissing a probationary employee is suitability.
Mr. Ly was hired as the Manager of Patient Safety and Client Experience at Interior Health. His contract had a probationary clause of six months, but he was terminated after two months. During the two months, Mr. Ly repeatedly sought feedback on his performance but did not receive any. When he was terminated, he filed a wrongful dismissal action. The court held that Mr. Ly had been wrongfully terminated because Interior Health had not met its legal obligation to carry out a good faith assessment of Mr. Ly’s suitability for the position. Accordingly, Mr. Ly was awarded three months notice. The court stated that an employer can consider not only job skills, but also character, judgment, compatibility and reliability when it is assessing an employee’s suitability.

Buchanan v. Introjunction Ltd. 2017 BCSC 1002

This case confirms that an employee who is terminated before starting work, would be entitled to reasonable notice or damages in lieu, absent an express contractual provision to the contrary. The Plaintiff in this case executed a formal contract for the position of Senior Software Engineer at a salary of $125,000. The contract had a three-month probationary clause which permitted the employer to terminate the Plaintiff’s employment without notice. Three days before he was due to start work, the company informed the Plaintiff that it needed to retract his employment for business reasons. The Company offered the Plaintiff temporary work, which the Plaintiff did not accept as the terms were unclear. The Plaintiff then sued the company for wrongful dismissal. At trial, the company argued that the probationary clause should apply, because otherwise, the Plaintiff would enjoy better rights before he started work. The court rejected this argument on three grounds: (a) the probationary clause was not in effect on the date of the retraction; (b) a probationary clause does not give an employer an unfettered right to terminate an employee without notice, or cause; and (c) by retracting the offer, the employer repudiated the contract. The court then awarded the Plaintiff six weeks notice.

The Employee v. The Company and Owner, 2017 BCHRT 266

This case clarifies that an employee may proceed with a complaint despite signing a settlement agreement, in certain situations.
The complainant in this case was a 24-year-old single mother with a grade 11 education who worked for the Company, washing RVs. The Owner, was the President of the Company. A few weeks after the employee started work, the Owner touched her inappropriately and made sexually suggestive remarks. The employee filed a human rights complaint, but eventually agreed to settle the matter for $800 and a promise that she would be allowed to return to work. The parties then met at the bank at the Owner’s request and, while there, signed a settlement agreement. The agreement was silent on a return to work and when the complainant attempted to do so, she was rebuffed. The complainant then informed the Tribunal that she wanted to proceed with the complaint and the Company applied to dismiss the complaint based on the signed settlement agreement.
While recognizing that there are strong policy reasons for holding people to settlement agreements, the Tribunal held that based on all of the circumstances, the purposes of the Human Rights Code would be best served by allowing the complaint to proceed.

No settlement, says Human Rights Tribunal

In The Employee v. The Company and the Owner, 2017 BCHRT 266, the B.C. Human Rights Tribunal (the “Tribunal”) refused to dismiss a complaint despite a settlement agreement between the parties.

BACKGROUND

The Complainant started working for the Company in May 2017 on an on-call basis. Her job was to clean RVs. She was a 24-year old, single mother, with a grade 11 education. The Company was owned by a 62-year old man (the “Owner”). The Complainant also worked for another business on the same lot. That business was owned by Mr. S.

On July 17, 2017, the Complainant filed a complaint with the Tribunal alleging that the Owner had harassed her sexually (the “Complaint”).

The Complaint

Briefly, the Complainant alleged that on June 3, 2017, while the Complainant was cleaning a RV, the Owner entered the RV and made sexually suggestive comments to her, insisted that she needed a “massage”, rubbed her legs and her shoulders, asked if she wore panties, forcibly looked down her pants to check, and then commented on her underwear.

The Complainant told Mr. S about the Owner’s behaviour and said she was going to report it to the police. A few days later, the Owner apologized to the Complainant and Mr. S told the Complainant that the Owner wanted to give her a RV to live in and would pay her rent for three months.

The Complainant attempted to return to work but felt uncomfortable because the Owner kept coming into the RV while she was cleaning it.

Attempts to settle

Between August 9 – 17, Mr. S attempted to settle the issue on the Owner’s behalf and eventually offered the Complainant $500. The Complainant stated that she would withdraw the Complaint if the amount was doubled and she could keep her job. The Complainant and Mr. S then agreed on the sum of $800.

On August 28, the Owner asked the Complainant to meet him at the bank and while at the bank, the Owner presented the Complainant with a short settlement agreement, which they both signed. The gist of the agreement was that the Complainant would discontinue the Complaint in exchange for the sum of $800.

The Complainant alleged that she attempted to return to work but that Mr. S “laughed at her” by responding with “Work? What work? Work there?” etc.

When the Complainant informed the Tribunal that she would not withdraw the Complaint despite the settlement, the Company and the Owner filed an application to dismiss the Complaint.

DECISION

The Tribunal recognized that there are strong policy reasons for holding people to voluntary settlement agreements and that allowing parties to pursue a complaint that has been settled, would undermine those reasons. On the other hand, the Tribunal noted that it had jurisdiction to hear a dispute even if parties have entered into a settlement agreement because “people cannot contract out of their rights under the Human Rights Code”. However, in these circumstances, the burden falls to the person who seeks to pursue a complaint despite a settlement agreement, to persuade the Tribunal that the purposes of the Code would be best served by allowing the complaint to proceed.

The Tribunal stated that in such situations, the Tribunal would consider a number of factors to determine whether a complaint should be allowed to proceed. These include: the language of the release, unconscionability (inequality of bargaining power and a substantially unfair settlement), undue influence, independent legal advice or lack thereof, conditions of duress (which may be related to the timing of the agreement, financial need, or other circumstances), and whether the party received little or no consideration for the release.

Applying the above factors to the circumstances, the Tribunal noted the following:

• the nature of the allegations, were serious;
• there was a large power differential between the parties – the Owner was 62 years old, he was the President of the Company and he had the power to hire and fire; the Complainant was 24 years old and had a grade 11 education and she was dealing with health, finances and housing challenges;
• the Complainant was alone with the Owner at the bank when she signed the agreement, she did not have any independent advice;
• the agreement was substantially unfair as the Complainant would have received much more than $800 if her Complaint was upheld; and
• the Complainant had wanted assurances that she would be able to keep her job; however, there were no such assurances in the settlement agreement and when she tried to return to work, she was belittled.

Accordingly, the Tribunal held that the purposes of the Code would not be best served by holding the parties to the settlement agreement and that the Complaint may proceed.

EMPLOYER TAKEAWAYS

  • A settlement agreement may not resolve a complaint, if it fails to satisfy the requirements described above.
  • Give an employee sufficient time to review a proposed settlement agreement.
  • Encourage the employee to seek independent advice.
  • Consider whether the agreement is “substantially” fair considering the remedies that the Tribunal could award if the complaint is upheld and the nature and seriousness of the complaint.
  • Consider engaging the services of a mediator to assist the parties with crafting a mutually acceptable agreement.