Northern Exposure

Retaliation against unreasonable discrimination complaint can cost you

By Kevin O’Neill, Q.C.

How the British Columbia Human Rights Tribunal recently handled a retaliation complaint—where the employee was found to be not credible and unreasonable—should give employers pause.

In the case of Chelsey Macklem v. The Cambie Malone’s Corporation, the tribunal had before it both a complaint of discrimination based on sex contrary to the Human Rights Code and a retaliation complaint.

The complainant, Macklem, quit her job with Malone’s at its Esquimalt operation because of the long commute. When a new job came up at a location closer to home, she was rehired at the Nanaimo location. While she testified she was hired as “the” manager, the tribunal found that was not the case (the first of many negative credibility findings). She was initially hired in a non-managerial position and later promoted to assistant manager, not as general manager.

There were two parts to Macklem’s complaint based on sex:

  • She wanted to be the director of wine, spirits, and special events. She filed her complaint when she did not get the job. The successful candidate was also a woman, which should have quickly ended that complaint. However, Macklem did not discontinue this part of the complaint until the hearing before the tribunal.
  • The second part alleged she was denied benefits that were offered to a male worker. The evidence was overwhelmingly against her on this as, among other things, she had never specifically asked to include her husband in the benefits, whereas the male employee had specifically asked to include his spouse (or family).

The Human Rights Tribunal was quite critical of Macklem and her uncorroborated and unsupportable assertions.

Two and a half months after the employer received notice of the complaint, it issued Macklem two months’ working notice of termination. However, one month later she was fired for cause, based on poor work performance and misconduct.

The tribunal found Macklem not to be a “reasonable” complainant and, further, that her perception of events was generally not reasonable. It dismissed her discrimination complaint. But the tribunal further determined that despite her behavior and evidence, she was protected from retaliation for filing this frivolous complaint.

The protection afforded a complainant in Section 43 of the Code against retaliation has no specific wording permitting the employer to discipline or discharge an employee who has filed a frivolous complaint. However, the tribunal could have awarded no damages for this breach by the employer to show its displeasure of the complainant’s evidence and behavior. As well, the tribunal may have considered reading into this clause the ability to dismiss the retaliation complaint when the original discrimination complaint was so ill-founded.

When the tribunal assessed Malone’s reasons for giving the initial notice of termination and then firing Macklem for just cause, it discounted Malone’s assertion that work and attitude were the only grounds and that they were completely separate from the human rights complaint. The employer had not documented the significant performance issues nor had it spoken to her about her bad attitude. The tribunal concluded that the decision to terminate was “significantly” influenced by Macklem’s complaint.

The approach to the retaliation remedy is instructive for employers. The tribunal found that Macklem was an unsatisfactory employee and it is very likely she would NOT have remained employed indefinitely. She would have been terminated for poor performance with notice or for cause. As a result, her claim for $6,000 in lost wages was reduced to $3,000.

In respect of an award for “injury to dignity, feelings and self-respect,” Macklem gave NO evidence of overt injury to dignity, feelings, and self-respect. The tribunal stated that it was not aware of any successful complaint of retaliation under the Code where such compensation was not ordered, even though there was no proof. The tribunal also noted that the lowest amount ever ordered in this category was $1,000. That is what it awarded to Macklem.

Terminating an employee while a human rights complaint is active has always been a difficult task. This case, again, reinforces that employers have to bring all concerns to the employee’s attention and follow up with documentation. Nothing whatsoever in the meetings or letters should take into consideration or refer to a human rights complaint. Terminating for performance issues, short of cause, in this period would be even more difficult.

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