Settlement offer not good enough to dismiss harassment complaint

Worker rejected settlement offer after investigation found bad behaviour but no harassment, but settlement offer and lack of corrective measures necessitated hearing before tribunal
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 02/21/2019

A British Columbia university has lost its bid to have an employee’s sex harassment complaint dismissed because the employee didn’t accept what it felt was a reasonable settlement offer.

The worker, who is in her 30s and whose identity was protected in the hearing, started working for a B.C. university in 2015. She reported to a university manager as well as a faculty member who had management responsibilities and the position involved a one-year probationary period.

The worker developed a good working relationship with the faculty member. In March 2016, they went on a business trip that required them to stay overnight at a hotel. They had separate rooms, but the worker left her suitcase in the faculty member’s room when they arrived.

After a day of work on the trip, the worker was walking back to the hotel with the faculty member when the faculty member told her: “You’ll have to let me know if this is a misstep, but I’m crazy about you.” The worker responded that she didn’t feel the same way about him and wasn’t interested.

The 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. The 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 faculty 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 uncomfortable. Eventually, the faculty member acknowledged 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 employee association then reported the events of the March business trip to the university. At the same time, the worker began a medical 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. The university hired external investigators to examine the circumstances and they determined that the faculty member’s behaviour crossed “boundaries of propriety” and was “a breach of his responsibility to a staff member.” However, they determined 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 agreement provisions against sexual harassment.

The employee association withdrew the grievance, but the worker disagreed with the investigation findings. She filed a human 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 valued more for her physical appearance than her professional capabilities and she worried about losing her job because she rejected the faculty member’s advances.

The 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, moving 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 withdraw her complaint.

The university and the faculty member then applied to have the human rights complaint 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.

The 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.

The 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 available until either two months after the complaint was dismissed or two weeks before the hearing began. The new offer retained the $30,000 compensation for injury to dignity, feelings and self respect as well as the counselling expenses, but added up to $10,000 for educational courses or non-legal-fee expenses up to Dec. 31, 2018. It also offered a retiring allowance of $34,572 if the worker decided to resign her position. The 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.

The university and faculty member maintained 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 reasonable settlement offer. To continue with a hearing wouldn’t further the purposes of the B.C. Human Rights Code, they argued.

The tribunal noted that the university’s first application to dismiss the worker’s complaint was denied because it was unclear if the original settlement proposal was still open for acceptance. The 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 respondent 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 settlement offer wasn’t good enough that the worker’s refusal to accept it warranted dismissal 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 unconnected 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.

The tribunal also found that while the external investigators found no sexual harassment, they still found that the faculty member’s behaviour crossed boundaries and breached his responsibility as a staff member. 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 tribunal found that the university’s settlement offer and its conduct wasn’t enough to make a hearing on the worker’s complaint unnecessary. The tribunal denied the application to dismiss the sex discrimination complaint.

“I do not see here that the university’s actions remedied the alleged violation or that it took steps consistent with the types of non-monetary remedies the tribunal might offer,” the tribunal said. “The purposes of the code are best served by allowing this complaint to proceed to a hearing.”

For more information see:

The Employee v. The University and another, 2018 CarswellBC 3481 (B.C. Human Rights Trib.).

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