Canadian Employment Law Today

6 | February 6, 2019 Canadian HR Reporter, a Thomson Reuters business 2019 Cases and Trends member when the faculty member told her: "You'll have to let me know if this is a mis- step, but I'm crazy about you." e worker responded that she didn't feel the same way about him and wasn't interested. e worker had to return to the faculty member's hotel room to get her suitcase and they discussed what he had said for about one hour. e faculty member told the worker he hoped "she would still smile" even if she had to withdraw from work to protect herself. During the rest of the business trip, the fac- ulty member tried to talk more about what had happened, asked the worker about her personal life, and made sure they travelled together — which made the worker uncom- fortable. Eventually, the faculty member ac- knowledged his comment was inappropriate and apologized to the worker. Unsuccessful grievance followed by human rights complaint In June 2016, the worker completed her probation and became a full-time, regular employee of the university. She and her em- ployee association then reported the events of the March business trip to the university. At the same time, the worker began a medi- cal leave and filed a workers' compensation claim, which was granted by WorkSafe BC. After the worker went on medical leave, the employee association filed a grievance of sexual harassment. e university hired ex- ternal investigators to examine the circum- stances and they determined that the faculty member's behaviour crossed "boundaries of propriety" and was "a breach of his responsi- bility to a staff member." However, they deter- mined it wasn't sufficiently of a sexual nature to qualify as sexual harassment and it didn't have direct job consequences for the worker, so there was no breach of the university's sexual harassment policy or collective agree- ment provisions against sexual harassment. e employee association withdrew the grievance, but the worker disagreed with the investigation findings. She filed a hu- man rights complaint for sex discrimination, claiming she was adversely impacted by the faculty member's conduct because it caused "feelings of helplessness, hopelessness, and disempowerment." She argued she felt val- ued more for her physical appearance than her professional capabilities and she worried about losing her job because she rejected the faculty member's advances. e faculty member and the university offered a settlement that would provide the worker with up to $6,500 in counselling fees, up to $5,000 for professional coaching, mov- ing costs up to $1,000, $30,000 for injury to dignity — $10,000 of that to be paid by the faculty member — and six months' salary continuance. To receive this settlement, the worker would have to sign a release and with- draw her complaint. e university and the faculty member then applied to have the human rights com- plaint dismissed on the basis there was a with-prejudice offer on the table. However, the B.C. Human Rights Tribunal disagreed and dismissed the application, saying it wasn't clear if the offer was still available. e university then informed the worker the offer was still on the table, but the worker didn't respond. In February 2018, the worker began a graduated return to work. e faculty member wasn't disciplined, but an annual merit increase was withheld. In August 2018, the university revised the settlement offer and stated it would be avail- able until either two months after the com- plaint was dismissed or two weeks before the hearing began. e new offer retained the $30,000 compensation for injury to dignity, feelings and self respect as well as the coun- selling expenses, but added up to $10,000 for educational courses or non-legal-fee expens- es up to Dec. 31, 2018. It also offered a retir- ing allowance of $34,572 if the worker decid- ed to resign her position. e worker didn't respond to the second offer and returned to work at the university in a position filling in for another employee on maternity leave. e university and faculty member main- tained there was no harassment based on the investigation findings, and applied once again to have the complaint dismissed on the grounds that the employee refused a rea- sonable settlement offer. To continue with a hearing wouldn't further the purposes of the B.C. Human Rights Code, they argued. e tribunal noted that the university's first application to dismiss the worker's complaint was denied because it was unclear if the origi- nal settlement proposal was still open for ac- ceptance. e university took steps to fix that and eventually amended its proposal with clear parameters as to how long the worker had to accept it. "It is in everyone's interests for a respon- dent to be responsive to concerns of another party or the tribunal and to continue good faith efforts to resolve complaints," said the tribunal. Settlement offer but no action However, the tribunal still found the settle- ment offer wasn't good enough that the worker's refusal to accept it warranted dis- missal of her complaint. First, it found that the release the worker would have to sign was too broad, as the worker would have to agree that it was "full and final settlement of my affairs with the university" — this could unfairly include other legal rights uncon- nected to the human rights complaint such as the worker's pension. Forcing the worker into such an agreement would not further the purposes of the code, said the tribunal. e tribunal also found that while the external investigators found no sexual ha- rassment, they still found that the faculty member's behaviour crossed boundaries and breached his responsibility as a staff mem- ber. However, there was no indication the university did anything significant to address the situation or correct the faculty member's behaviour — no clarification of expectations for senior staff behaviour and no discipline for the faculty member, said the tribunal. Given the lack of action on the university's part to address the situation and the worker's evidence on how she was affected, the tribu- nal found that the university's settlement of- fer and its conduct wasn't enough to make a hearing on the worker's complaint unneces- sary. e tribunal denied the application to dismiss the sex discrimination complaint. "I do not see here that the university's ac- tions remedied the alleged violation or that it took steps consistent with the types of non- monetary remedies the tribunal might offer," the tribunal said. "e purposes of the code are best served by allowing this complaint to proceed to a hearing." For more information see: • e Employee v. e University and another, 2018 CarswellBC 3481 (B.C. Human Rights Trib.). No discipline or warning for inappropriate conduct « from SETTLEMENT on page 1 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as GM's legal obligations after its plant closure, privacy in the workplace, and dealing with mental injuries to employees. You can view the blog at www.employmentlawtoday. com.

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