Pharmacy assistant claimed she faced discrimination based on her religion and place of origin
The Supreme Court of British Columbia recently dealt with a judicial review application concerning a human rights complaint involving alleged workplace discrimination.
At issue was whether a complaint filed with the British Columbia Human Rights Tribunal should proceed to a full hearing or be dismissed without one.
The worker claimed she faced discrimination based on her religion and place of origin during her employment.
She alleged that colleagues made discriminatory statements about her background, creating a hostile work environment that ultimately contributed to her dismissal during her probationary period.
The Vancouver Island Health Authority sought review after the Tribunal refused to dismiss a complaint filed by a pharmacy assistant. The worker alleged discrimination based on religion and place of origin, citing three specific statements allegedly made by colleagues.
The worker had been dismissed during her probationary period, with the health authority stating this was primarily due to her inability to dispense medication accurately. She had also grieved her termination through her union and applied to WorkSafeBC for compensation for alleged bullying and harassment, both unsuccessfully.
The health authority then asked the Tribunal to dismiss the complaint without a hearing, arguing the same issues had already been addressed in the other proceedings - a strategy HR professionals might consider when facing multiple complaints about the same workplace situation.
The complaint focused on three statements allegedly made by colleagues: that her manager said, "We don't let Vancouver Island become the same as the Mainland and full of immigrants"; that a coworker said, "If we came to your country your people would kill us, but your people come here and get our jobs"; and that another coworker said, "You came and got their jobs."
In the previous proceedings, an industry troubleshooter who heard the termination grievance did not accept the worker's allegations, stating: "I do not accept, based on the evidence before me, that her coworkers or management were acting in a discriminatory manner. In my view, the evidence before me does not support the allegations of discrimination."
Similarly, in her WorkSafeBC claim, a case manager found that while there was evidence of workplace conflict, "I do not find that the interpersonal conflict rose to a level of threatening or abusive behaviour or behaviour that was intended or should reasonably have been known would demean, humiliate or degrade you."
The Tribunal refused to dismiss the complaint, viewing it narrowly as being about "whether the Alleged Statements were made, and if they were, whether there was a contravention of the Code." The Tribunal felt that determining who was telling the truth required a full hearing.
The Tribunal found that neither the industry troubleshooter nor WorkSafeBC had specifically decided whether the alleged statements were made or violated human rights laws.
The health authority disagreed with this approach, arguing that the Tribunal misapplied a key Supreme Court of Canada test that helps determine when complaints that have already been addressed elsewhere should be dismissed.
The court agreed that the Tribunal had misunderstood the proper test. The Tribunal had wrongly limited its review to whether other decision-makers had specific authority to decide human rights issues under the Human Rights Code.
The court explained: "The Code is not the only source of human rights issues. Decisions under the Code are not the only proceedings in which the substance of a human rights dispute may be resolved."
The court found that the Tribunal's view of the complaint was too narrow. Rather than just asking whether specific statements violated the Code, it should have examined "whether, in relation to the Alleged Statements, [the worker] was adversely treated in her employment based on her religion or place of origin."
The court sent the case back to the Tribunal, requiring it to reconsider whether the issues decided by WorkSafeBC were essentially the same as what was alleged in the human rights complaint.
The court provided practical questions for the Tribunal to consider, including:
The court also directed the Tribunal to consider: "What are the practical implications of the finding by the Vice Chair that [the worker] was not a credible or reliable witness?" and ultimately, "At the end of the day, does it make sense to expend public and private resources on the Complaint?"
The case highlights the importance of documenting workplace incidents thoroughly and consistently. When handling multiple complaints about the same situation in different forums, the court said that evidence may be interpreted differently depending on the specific laws being applied.
