Nova Scotia human rights decision dismisses complaint by former firefighter

Delay in accommodation due to hiring freeze, not retaliation for previous complaints: Board
By The Canadian Press
|employmentlawtoday.com|Last Updated: 10/21/2019
A human rights inquiry board found no evidence a Halifax firefighter was discriminated against because of her gender or previous complaints. Julie Marshall/Shutterstock

HALIFAX (CP) -- A Nova Scotia human rights inquiry has dismissed claims by a former Halifax firefighter that she was discriminated against because of her gender and retaliated against because of previous human rights and workplace complaints.

In a written decision, inquiry board chair Dennis James says there is no evidence of any discrimination or retaliation against Kathleen Symington between May 19, 2015 and May 19, 2016.

That period runs up to the date of Symington's complaint, which came roughly a year after she informed Halifax Regional Fire and Emergency she was refusing an accommodated position as a storeperson.

She also submitted a medical opinion that she was unable to work in any capacity with the fire service or the municipality.

Symington, who hadn't been to work since 2011, subsequently retired from the fire service on Aug. 1, 2016.

James says in the 12 months proceeding the 2016 complaint, there was no evidence of gender discrimination and he is convinced there was a "fully engaged effort'' to have Symington return to work.

Further, he said there was no evidence to suggest anyone involved in the effort to find Symington a position to accommodate her physical disabilities -- following neck fusion surgery related to a 2004 motor vehicle accident -- was motivated by her previous complaints from 2004.

"There was nothing in the documentary evidence that showed anything other than Halifax Fire trying to bring Ms. Symington back to work within the department. She did not suffer any adverse treatment due to gender."

James points out there was a hiring freeze put in place by Halifax Regional Council in 2014 that led to delays in solidifying the stores position and offering it to Symington.

"Although there are points of concern in the management of the matter, they are not sufficient to support a finding that Halifax Fire failed in its obligation to accommodate Ms. Symington,'' he said.

"It is concerning that council would institute a hiring freeze without clear policy guidelines that provided direction on issues as fundamental as accommodation.''

In the decision, James also dismisses claims by Symington's lawyers that two disciplinary letters played a role in the alleged retaliation efforts against her during the accommodation process.

He notes the letters weren't supposed to be in her personnel file as per a 2008 settlement regarding Symington's 2004 complaints, but remained there as late as this spring. Despite that, James said there was no evidence to suggest anyone was motivated by the 2004 complaints.

"The mere presence of the letters remaining in the file ... was the entire foundation of a hyper-exaggerated allegation of retaliation,'' James wrote.

Symington's case has been supported by former Halifax firefighter Liane Tessier, who received a public apology and settlement in December 2018, after a 12-year battle over systemic gender discrimination in the city's fire department.

Symington's 2004 human rights and workplace complaints were not reviewed by the human rights inquiry as agreed to in a pre-hearing meeting.

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