In Clara Kingston v. Fairmont Hotel Vancouver and others, 2023 BCHRT 68 vide Order dated 30th June 2023, the court navigated between wrongful termination and nexus between sexual harassment claims. The two critical facets of employment are wrongful termination and sexual harassment, which often intersect with one other in a workplace. Establishing a nexus between wrongful termination and sexual harassment can strengthen the claimant’s case, which also emphasises the need for comprehensive policy within a workplace that addresses both the issues which provides the employers and employees adequate protection and redressal.
Facts:
The Complainant, X, after completing her training period became an Assistant Banquet Manager as a regular employee for Respondent No. 1 Y’s Hotel on 1st June 2018. After receiving multiple complaints from other employees and clients, Y issued a letter of expectation to X setting out their concerns about her performance. Despite additional training and instructions, X’s work did not improve, and she was subsequently terminated on 5th July 2018.
In May 2018, X made claims of sexual harassment in the workplace alleging respondents 2, 3 & 4 used vulgar language in their conversations. The alleged comments were “bring on bi**h” during a dart game. The investigation conducted by Y concluded the alleged comments were not said and thus did not encompass SH.
The present application is filed by Y to dismiss the application of X alleging wrongful termination.
Submissions of the Parties:
Complainant:
It was X’s contention that the use of sexually explicit language in the workplace amounted to sexual harassment and created a toxic workplace which had an adverse impact on her. Additionally, the issue of SH was not addressed and instead, she was terminated in response to her concerns about SH.
Respondent:
The case of Y relied on the fact that the termination was based on her poor job performance and thus did not amount to discrimination. Additionally, the alleged comments were not sufficiently egregious to contravene the code and were used in a casual discussion not involving X.
The Law:
X approached the court alleging she was discriminated against on the grounds of sex, contrary to S.13 of the Human Rights Code and was sexually harassed. Under S.27(1)(b), of the Code, the Tribunal has the power to dismiss a complaint if the alleged act does not contravene the Human Rights Code.
The test to determine the possible contravention is to analyse the facts alleged in the complaint, without reference to any alternative scenarios provided by the respondent and such threshold for determination is low.
Citing Gichuru v. WCAT1, the tribunal noted that to claim discrimination under the Code, the facts alone should help draw a reasonable inference between the adverse treatment and the prohibited ground of discrimination. The Court noted that although X does not need to prove her complaint for it to succeed at the hearing, it is imperative to establish an adverse treatment in relation to discrimination on the basis of her sex.
Tribunal’s Decision
On analysing the bare facts as alleged by X, the Tribunal noted that the application to dismiss was based only on the contents of the complaint and not any other information provided by Y.
The tribunal stated if the allegations are proved by X, a nexus between her termination and complaint of sexual harassment can constitute a contravention of the Code.
Thus, the application to dismiss the complaint was denied and found that the evidence at this stage was inconclusive and the allegations of X were not mere conjectures and allowed the complaint to proceed.
However, the present ruling does not guarantee a successful hearing for either of the parties and the matter should be adjudicated according to the law.
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