By Daniel Standing LL.B., Editor, First Reference Inc.
Silence during the accommodation process, strange facts and self-serving evidence in support of a human rights complaint prove to be an unsatisfactory combination of factors for establishing a reasonable prospect of success in proving a complaint at a hearing. Exercising its gatekeeping function in 2023 BCHRT 1, the British Columbia Human Rights Tribunal dismissed a complaint that is equally odd (factually) and instructive (legally).
A company’s safety coordinator attended a meeting at work one day. A project manager opened the door to leave, knocking over an empty water jug. The safety coordinator said the noise it made caused him to spend the rest of the day in a fearful, depressed state. He described being extremely hyper-vigilant, nauseated and exhausted. In short, he said this “violent act” precipitated PTSD that was then worsened by the employer’s treatment of him, which culminated in his termination.
His complaint alleged it was discriminatory for the employer to have initially put him on administrative leave and cut off his benefits after he filed a WorkSafeBC claim. However, unbeknownst to him at the time, the reason his benefits ceased was because he was hired on a probationary period and was too new to have earned any paid time off, and he wasn’t yet eligible for the employer’s disability plans under its benefits package. Additionally, there was no income from which to deduct his part of the premiums. This all would have been explained to him, said the employer, except, apart from receiving medical notes extending his leave, the employer was unable to communicate with the employee. He simply wouldn’t return its calls and messages.
What the Tribunal decided
The Tribunal began by stating it was being asked by the employer to exercise its gatekeeping function which, under section 27(1) of the Human Rights Code, permits it to dismiss complaints that aren’t worth the time or expense of a hearing. In legal terms, the question is whether there is a “reasonable prospect” that facts supporting a complaint will be proven at a hearing. Since this was the employer’s application, it had the burden of showing the complaint had no reasonable prospect of success.
Problems abounded with the complaint, making the Tribunal’s task seemingly easy. First, the Tribunal said the complainant provided no evidence he had PTSD, other than his own self-disclosure. His medical notes were silent on this point, merely saying he needed to be off work due to illness.
Second, there was no evidence that his disability was linked to his adverse treatment. True, the timing looked bad, but the employer had a legitimate explanation for why no benefits were available. The Tribunal couldn’t overlook the fact the employer tried to discuss this with the employee but couldn’t reach him.
These factors combined to convince the Tribunal that the complaint stood no chance because the complainant wouldn’t be able to prove any link between his disability and the adverse impacts he suffered. For that reason, the Tribunal dismissed the complaint.
Takeaways for employers
Retaining evidence of an employee’s unresponsiveness during the accommodation process will only serve to benefit the employer. In this case, the employee’s silence at times he was expected to or had a duty to respond hurt his case badly, while strengthening the employer’s.
Secondly, as in this case, the employer may have a non-discriminatory reason and explanation for why an employee has experienced an adverse impact at work. This illustrates how central the facts are to any dispute of this nature, even when they are hard to believe.