March 18, 2015
Now and then, a decision comes along which demonstrates that an old fashioned apology may be sufficient.
For example, in Baker v. Brentwood College School, 2011 BCHRT 335, the BC Human Rights Tribunal carefully considered the employer’s swift and thorough reaction to a human rights complaint filed by a housekeeper who had worked at a local school for approximately nine years. She was a good employee and had never been the subject of any discipline.
The school was described by the complainant as being a multi-cultural facility with people of 22 different nationalities and various cultural and religious beliefs attending or working at it. The complainant described herself as First Nations. In the summer of 2010, while the cleaning crew was having lunch in the lunchroom, the conversation turned to people’s nationalities and what languages they spoke. At this point in the conversation, the complainant claimed that her manager asked her whether or not she spoke a First Nations language, and then proceeded to speak in derogatory and inflammatory terms about First Nations people, First Nations land, and generally exhibited a negative stereotypical attitude toward First Nations people.
The complainant claimed that her manager’s comments profoundly hurt her. She filed a claim with the B.C. Human Rights Tribunal pursuant to the Human Rights Code alleging discrimination in employment based on race, colour and ancestry.
The employer later applied to have the complaint dismissed on the ground that proceeding with the complaint would not further the purposes of the Code. The employer claimed that it took prompt, reasonable and effective remedial actions when it was made aware of its manager’s comments. The employer’s evidence was that it investigated the incident and found that the comments were inappropriate, improper, unacceptable and discriminatory. It suspended the manager during the investigation, prohibited the manager from having any direct contact with the complainant, called a meeting to bring workplace policies to the attention of other employees, directed the manager to write a letter of apology, wrote a letter of apology on behalf of the school, held a mediation session with those who were witnesses to the comments at which time other staff members apologized, and required the manager to take sensitivity training.
After reviewing the evidence, the Tribunal found that it would not further the purposes of the Code, and would be an inefficient use of the Tribunal and parties’ resources, to proceed with the complaint. In coming to this decision, the Tribunal noted the importance of encouraging parties to resolve matters internally and in a manner reflective of the purposes of the Code. The Tribunal went on to state that, “The purposes of the Code are remedial, not punitive…” and “… the College has acknowledged discrimination, and demonstrated reasonable and effective efforts to prevent any further re-occurrence and to redress the impact of the comments…”.
A very similar result occurred in Roach-Leforte v. Caring for First Nations Children Society and another, 2014 BCHRT 250, a case which concerned allegations that a manager uttered vulgar comments to the complainant, which she found to be humiliating, degrading, and harassing. The respondents admitted the conduct occurred and took it very seriously. The manager was placed on leave while the matter was investigated. In a subsequent meeting between the parties, the manager apologized, expressed remorse and committed to take steps to avoid any measure of similar behaviour. The complainant appeared to be satisfied with the result and offered to give the manager a hug. In response to her subsequent allegations of discrimination on the basis of sex, the Tribunal determined it would not further the purposes of the Code to proceed with the complaint because the respondents had responded appropriately to issues raised in the complaint.
The key to these outcomes was, without a doubt, the respondents’ swift action to address the offensive comments, to provide a sincere apology to the employee for the impact of the conduct in question, and to take measures to remedy the damage done by the comments and prevent such behaviour from occurring in the future. It goes to show that there can be a lot of value in owning up to the occurrence of inappropriate workplace behaviour and taking early steps to address its impact on the offended employee.
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.