Firing was business decision, not discrimination

Employer properly handled harassment incident; decided to dismiss worker after learning she planned to quit
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 09/04/2018

A British Columbia worker’s dismissal wasn’t related to her complaints of sexual harassment from a co-worker’s behaviour and management comments but rather was a business decision when her employer learned of her intention to quit, the B.C. Human Rights Tribunal has ruled.

Crystal Brown worked for Proactive Hazmat & Environmental — a company that provides asbestos removal, vermiculite removal, and mould remediation for residential and commercial buildings — as a hazmat worker from Aug. 1, 2014, to Dec. 22, 2015. On the latter date, Brown resigned from her position with Proactive.

Less than four months after Brown’s resignation, Proactive rehired her effective April 4, 2016. She continued in the level 1 hazmat worker position until early October, when she attended training for the level 2 hazmat worker position.

During a break in the training, Proactive’s general manager overheard Brown talking to another employee about “sexts” — text messages of a sexual nature. The general manager asked Brown if she had received sexts from any of her co-workers and Brown replied that she hadn’t. However, she did say that recently a male co-worker had approached her from behind and “grinded” himself against her. Brown said that she had reported the incident to her foreman, who had dealt with the matter at the time. The male co-worker had apologized and Brown had accepted.

The general manager remained concerned about the incident and investigated further. He met with Brown and Proactive’s superintendent to learn more about what happened. Brown talked about how it had made her feel and the general manager told her that while he didn’t blame her for the incident, she should avoid using terms such as “hun” and “sweetie-pie” when talking to male co-workers as her intentions could be misinterpreted. The superintendent added that Brown was working “in a man’s world.”

Brown disagreed, as she felt she was usually treated with respect at work and “the only people in this company that make me feel like a woman in a man’s world are in this room.” According to Brown, the superintendent also said the type of incident she experienced should be expected, though the superintendent and general manager both denied that was said or that she disagreed with anything they said.

The same day as the meeting — Oct. 7 — Proactive fired the male employee involved in the incident with Brown.

Worker upset by comments

Brown was upset by the meeting and the suggestion that using the words “hun” and “sweetie-pie” could give male co-workers the wrong impression. She talked to a health and safety manager about it, and he responded that he would look into it and let her know. She also talked to Proactive’s field safety co-ordinator, who told her that her rights had been infringed and he would also look into it. However, Brown didn’t hear from either of them and both left Proactive some time later.

On Oct. 28, Brown sent a text message to Proactive’s operations manager — it was normal practice for employees to communicate by text message since they were often at different job sites — saying her last day with Proactive would be two months later, on Dec. 24, and she was going to “move forward” with the next stage of her life since she had been “standing still with my wage for a long time now.” After a few more text messages involving “happy face” emojis, Brown texted him that he was “a good man” and she was going to “miss you like crazy.”

The operations manager forwarded the text messages to the general manager on Nov. 2. Proactive decided to terminate Brown’s employment sooner since it didn’t want a departing employee who felt slighted to continue working for two months when she could become disengaged and unproductive. The company terminated her on Nov. 4, providing two weeks’ pay in lieu of notice.

At the termination meeting on Nov. 4, the general manager first confirmed with Brown that she was resigning effective Dec. 24. After he informed her of her immediate termination, Brown tried to raise other issues — including that she believed Proactive hadn’t given her a fair chance — but the general manager didn’t want to debate her at the meeting.

Brown later claimed she said the incident and the Oct. 7 meeting about it were unacceptable and they terminated her after those comments, but Proactive management denied that was the case. She also claimed that she had invited the health and safety manager and field safety manager to the meeting, but they weren’t there. The general manager argued he wasn’t expecting them because he hadn’t invited them himself.

Brown filed a human rights complaint, claiming the comments said to her in the Oct. 7, 2016, meeting and the termination of her employment — she claimed she didn’t formally notify the company of her intention to resign — constituted discrimination on the basis of her sex, contrary to the B.C. Human Rights Code.

The tribunal found that the instructions given to Brown to avoid using the terms “hun” and “sweetie-pie” to address co-workers were reasonable and not indicative of discrimination based on Brown’s sex — the same instructions would likely apply to a male worker as well. In addition, the tribunal said the comment that Brown was a woman working “in a man’s world” happened in the meeting and nowhere else, making it likely Proactive could establish the comment as an isolated incident. The tribunal also pointed out that the company fired the male co-worker who sexually harassed Brown.

“While I appreciate that the superintendent’s comments may have crossed the line, and may have been discouraging for Ms. Brown to hear, the company’s decision to fire the offending employee spoke volumes in respect of sending a message that sexual harassment will not be tolerated at Proactive,” said the tribunal.

Termination decision not related to sex

The tribunal also found that while Brown didn’t formally notify Proactive of her intention to resign, the company became aware when the operations manager forwarded her texts to the general manager and president. Proactive then made a business decision to terminate Brown’s employment because it didn’t want a potentially disengaged employee working there for two months. The evidence showed the decision to terminate was made before the Nov. 4 meeting at which Brown claimed she complained about discrimination and treatment, and Brown’s sex was not a factor in the decision, the tribunal said.

The tribunal determined Brown’s dismissal wasn’t related to any protected grounds under the B.C. Human Rights Code and dismissed her complaint.

For more information see:

• Brown v. Proactive Hazmat & Environmental, 2018 CarswellBC 1686 (B.C. Human Rights Trib.).

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