Company documented investigations, discipline, showing non-discriminatory reasons
The British Columbia Human Rights Tribunal has dismissed three discrimination and retaliation complaints filed by a worker against her former employer for a lack of timeliness and insufficient evidence to proceed.
The worker was a tenant support worker for the Vancouver Island Mental Health Society, an organization providing housing, rehabilitation, and services to people with mental health and substance use issues. She joined the society in 2015, working at a supportive housing unit providing care to residents.
On June 1, 2018, a resident commented on the worker’s clothes and a co-worker told her to go home and change. In 2019, she moved to a different job site.
In October 2019, a co-worker told the worker that a manager made critical comments about her work. Over the next few months, the worker made complaints to the society about in appropriate behaviour of residents for whom she provided care. However, according to the worker, the society didn’t deal with the residents and instead bullied and harassed her, including a negative performance review in May.
Also in May, the worker was given a verbal warning and a written letter about removing confidential information from the workplace and engaging in non-work activities during work hours.
Investigation report
The society hired a third-party investigator in August 2020 to investigate the worker’s complaints of bullying and harassment. The investigator provided a written report on Dec. 21 concluding that the society had not bullied and harassed the worker.
On Jan. 15, 2021, a co-worker complained that the worker had made a death threat against another employee. The society placed the worker on unpaid leave while it investigated. The worker denied making comments about killing the co-worker and the society determined that she didn’t pose a threat to anyone and approved her return to work.
However, the worker decided to take two weeks off before returning. She then went on long-term disability leave in February and didn’t return to work.
On Feb. 12, the worker filed a human rights complaint alleging that the society discriminated against her based on mental disability – she had post-traumatic stress disorder (PTSD) - sex, and gender identity or expression. She cited the co-worker’s comments about her clothes in June 2018, the critical comments about her work in October 2019, the society’s failure to deal with her complaints about residents in late 2019 and early 2020, the May 2020 warning and performance review, the finding of no harassment or bullying against her, and the death threat allegation against her in January 2021.
Retaliation complaints
The worker subsequently filed two more complaints in April and August 2021 alleging retaliation for her initial human rights complaint.
The society denied all the allegations, asserting that its actions were non-discriminatory and unrelated to any protected characteristics. It filed an application to dismiss the complaints under s. 27(1)(c) of the BC Human Rights Code for lack of a reasonable prospect of success and under s. 27(1)(g) for untimeliness.
The tribunal determined that the allegations occurring before February 12, 2020 - one year prior to the worker’s first complaint – weren’t filed within the code’s one-year limitation period and didn’t constitute a “continuing contravention” related to the timely instances of alleged discrimination and retaliation. The worker argued that her allegations formed part of a broader pattern of discriminatory behaviour, but the tribunal concluded that the incidents were distinct and separated by significant gaps in time, including a 16-month gap between the earliest allegations.
The tribunal further considered whether to accept the late-filed allegations, but it found that the worker’s reason for the delay - her attempt to resolve workplace issues by transferring job sites in 2019 – unpersuasive. There was no compelling public interest in accepting the late complaints, the tribunal said.
Non-discriminatory reasons
Regarding the allegations that fell within the limitation period, the tribunal found no reasonable prospect of success. The society provided documentary evidence, including policies, correspondence, and investigative reports, supporting its claims that all actions taken against the worker were based on her job performance and workplace conduct rather than any discriminatory intent.
The tribunal noted that the May 2020 warning was for engaging in non-work-related activities during work hours, not due to the worker’s PTSD symptoms as she alleged. In addition, an independent investigator found no bullying or harassment after reviewing the worker’s complaints and the paid leave in January 2021 was for a reported death threat, which the society considered a potential policy violation, the tribunal said.
The tribunal also dismissed the worker’s retaliation claims, finding no evidence of a connection between the society’s actions and the worker’s human rights complaints. The alleged adverse actions that the worker experienced occurred months before she filed her first complaint in February 2021, and the timing and context of the society’s decisions supported a non-retaliatory rationale, said the tribunal.
The tribunal granted the society’s application to dismiss the complaints in their entirety under ss. 27(1)(c) and 27(1)(g) of the code, determining that the society’s actions were based on legitimate workplace considerations and that the worker’s allegations lacked sufficient evidence to proceed to a hearing. See Graveley v. Vancouver Island Mental Health Society, 2024 BCHRT 289.
