Canadian HR Reporter

February 2020 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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www.hrreporter.com 33 C O L U M N S E M P L O Y M E N T L AW NO HARASSMENT FOR FITNESS WORKER A British Columbia worker who claimed he was harassed and fired because he was gay has lost his human rights complaint. Derek Bedry was hired by Raincity Athletics, a strength and conditioning gym in Vancouver, in the summer of 2014 to be a fitness coach. His duties involved running group fitness classes, guiding members of the gym in fitness programs and providing feedback to clients on their programs. According to Bedry, he began to experience bullying and abuse from Raincity's owner, Simon Damborg, not long after he started there. He said Damborg threatened his job with comments such as "You're on thin ice" and "This is your last chance." Bedry, a gay man, also claimed Damborg made comments and jokes about his sexual orientation by using terms such as "sausage," "behind" and "bottom." Damborg, however, had a different take on their interactions. He saw Bedry demeaning clients and other coaches, and he received feedback from clients saying they avoided Bedry's classes because he was rude, abrasive and wasn't a very good fitness coach. When Damborg brought these things to Bedry's attention, Bedry gave him excuses. Damborg claimed they had an informal relationship at work and often joked about sexuality. When they discussed bodies, it was in relation to athletic physique and what clients wanted. He denied harassing Bedry and said it was Bedry who often behaved inappropriately, frequently using the word "bitch" when referring to people. Bedry developed mental health issues, which he told Damborg about in October 2015. Damborg agreed to meet with Bedry regularly to check up on his wellness, but Bedry claimed the meetings became opportunities to threaten him about his job and complain about his poor performance. Bedry asked for Raincity's co-manager to take over the meetings to protect his mental health. Damborg said Bedry chose not to participate in the meetings due to insubordination and denied any harassment. He agreed to reduce Bedry's work duties and hours and covered the cost of his Raincity membership whenever Bedry needed time off due to his mental health issues. In April 2017, Bedry asked Raincity's manager to be present at any staff meetings as things with Damborg had deteriorated. A few days later, Damborg told Bedry that if he wasn't willing to meet with him one on one, he should resign. On April 23, Damborg informed Bedry that Raincity was terminating his employment due to his poor performance, rude behaviour, bad-mouthing of clients and insubordination. Bedry filed a human rights complaint, claiming he was discriminated against and dismissed because of his sexual orientation and mental disability. 'Disrespectful attitude' The tribunal found that the evidence pointed to the fact that Bedry "displayed a consistently disrespectful attitude towards Raincity clients." There were records of numerous complaints and negative survey feedback from clients. Other Raincity employees agreed with Damborg regarding Bedry's conduct, and Damborg raised this issue with Bedry, but Bedry continued to display this behaviour. The tribunal also found that there was no harassing pattern of behaviour from Damborg. Bedry provided no evidence to corroborate his claims of harassment, while Damborg and other Raincity employees testified that Bedry often initiated sexually themed jokes. In addition, other LGBTQ employees and clients testified that the facility was a welcoming and safe environment. As for Damborg's comments such as "You're on thin ice" and "This is your last chance," these were unrelated to Bedry's sexual orientation and were legitimate expressions that Bedry was a poor performer and his job was at risk. The other comments related to body parts were a product of their informal joking relationship and weren't specifically targeted at Bedry or his sexual orientation, said the tribunal. The tribunal noted that when Bedry revealed his mental health issues, Damborg reduced his hours and duties and implemented the wellness meetings. This showed Raincity's willingness to accommodate Bedry's disability and it was Bedry who chose to stop attending the meetings. The tribunal found that Bedry was not discriminated against or harassed because of his sexual orientation or mental disability and Raincity had just cause to terminate his employment. CHRR For more information see: • Bedry v. Raincity Athletics and another (No. 2), 2019 BCHRT 210 (B.C. Human Rights Trib.). Jeffrey R. Smith takes an in-depth look at a case involving a gay fitness club worker in British Columbia whose claims of discrimination and harassment contrasted with evidence from his boss and co-workers SUPPORTING LGBTQ RIGHTS AT WORK 33% of Canadians surveyed don't think their workplace is safe and inclusive for LGBTQ employees. 43% said their employers have clear policies and procedures to address discrimination or harassment against LGBTQ employees. 30% of LGBTQ respondents have witnessed or experienced homophobic or transphobic discrimination or harassment at work. 64% of all respondents think businesses that support the LGBTQ community are more likely to understand customer needs. Jeffrey Smith Editor of Canadian Employment Law Today Source: Telus The comments related to body parts were a product of an informal joking relationship and weren't specifically targeted at the fitness worker or his sexual orientation.

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