BC worker’s firing after reporting workplace assault not discriminatory

Discipline, termination were for failure to follow reporting policies and harassing emails

BC worker’s firing after reporting workplace assault not discriminatory

The worker was a banquet server at the Vancouver Airport Marriott/Hilton Vancouver Airport, operated by Vancouver Airport Centre Ltd., since 2014.

The worker had an acrimonious relationship with his supervisor which worsened when the worker observed the supervisor eating food that had been charged to a customer. Rather than reporting the food theft to the hotel, the worker emailed the supervisor about it.

On Feb. 4, 2018, things came to a head between them and the supervisor assaulted the worker. The worker didn’t report the incident, but the next day the supervisor admitted to the assault to an assistant manager in the hotel’s food and beverage department.

The assistant manager, supervisor, and the worker, all met that day and the supervisor apologized to the worker, saying it would not happen again. The worker thought that he would receive written confirmation of the incident and the apology, but he didn’t. As a result, he started sending several emails to the supervisor about the incident.

The assistant manager reported the incident to the hotel’s HR department on Feb. 9, which scheduled a meeting with the worker and the supervisor. However, the meeting didn’t happen.

The supervisor sent an email to the worker on Feb. 10 apologizing for his actions, but the worker wasn’t happy. Further emails were exchanged with management copied on them.

Assault reported 15 days later

The worker formally reported the assault to the HR department on Feb. 19, which led to an investigation.

One month later, the worker met with two managers, who told him that the investigation was complete and the supervisor had been disciplined. The hotel suspended the supervisor for one week without pay along with a warning that any similar acts would lead to immediate termination of employment, although the worker wasn’t told about the specific discipline that had been given.

However, the hotel’s investigation also revealed that the worker had violated hotel policies by not reporting the food theft and the assault in a timely manner. The investigation also determined that the worker’s emails to the supervisor were harassing and inappropriate. The worker was given a written warning, but the worker felt it wasn’t justified and refused to sign it.

The worker emailed the hotel’s general manager to complain about how the matter was handled, but the general manager said he supported the HR department’s decisions.

Worker terminated without cause

On April 5, the hotel terminated the worker’s employment without cause, providing four weeks’ severance pay. It offered another two weeks’ pay if the worker signed a release form, but the worker declined.

Five days later, the worker complained to the BC Workers’ Compensation Board (WCB) about the assault and his treatment by the hotel. The WCB investigated and found that the hotel’s bullying and harassment policy was deficient.

The worker also filed a complaint of discriminatory action with the WCB, alleging that the hotel had dismissed him in retaliation for having raised a health and safety issue at work – the assault by the supervisor – contrary to the BC Occupational Health and Safety Regulation (OHSR).

The WCB dismissed the complaint, finding that, although the worker had exercised an occupational health and safety duty by reporting the assault and he had been dismissed a short time later, the hotel had demonstrated, on a balance of probabilities, that its decision to dismissed the worker was not motivated by the health and safety concerns he had raised.

The worker appealed to the WCB appeal tribunal, but the tribunal agreed with the WCB decision. The evidence indicated that the worker was dismissed for failing to follow the hotel’s reporting policies and for sending inappropriate emails to co-workers, supervisors, and management.

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Worker claimed procedural unfairness

The worker appealed the tribunal’s decision to the BC Supreme Court. He argued that he was denied procedural fairness and the tribunal’s decision was substantially flawed and failed to satisfy the reasonableness standard of review.

The worker’s procedural unfairness argument was based on the fact that the tribunal refused to require the hotel to disclose security camera footage of the assault and the meetings, along with claims that the hearing – which lasted 1.5 hours – was too short, the tribunal was biased, and the tribunal refused to consider certain evidence regarding emails of a former co-worker about the way the worker was tretaed.

The court found that there was no dispute that the assault occurred and the meetings took place, while the worker didn’t explain why viewing the footage would have any bearing on his written warning or termination. As a result, the refusal to order the hotel to provide the footage was not procedurally unfair, said the court.

The court also found that, in addition to the hearing, the parties were given the opportunity to make further written submissions. The worker did so, but didn’t explain what additional submissions he could have provided in the hearing itself if it was longer. The court dismissed the argument that the hearing was too short.

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Dismissal of appeal not sign of bias

As for the worker’s claim of bias, the worker provided no evidence or justification other than that his appeal was dismissed. To support such a serious claim, one would need strong, convincing evidence to reverse the presumption of impartiality for decision-makers, said the court, adding that the bias allegation was “completely unfounded” and “ought not to have been made.”

As for the former co-worker’s emails, the court found that the tribunal’s assessment that they weren’t relevant – the former co-worker had no knowledge of the details and reasons of the worker’s discipline and termination – was entitled to deference and could not be considered a denial of procedural fairness.

The court also found that the tribunal followed the proper legal test, as the burden of proof was on the hotel to prove that it had not committed a prohibited action under the OHSR, and the hotel was successful in demonstrating that the worker’s termination was due to his breach of policies and inappropriate emails. In addition, the decision itself – concluding that there was no causal connection between the worker’s discipline and termination and his reporting of unsafe conditions at work – was reasonable given the evidence, said the court.

The worker’s appeal was dismissed and the previous decisions upheld.

See Maung v. British Columbia (Workers’ Compensation Appeal Tribunal), 2022 BCSC 1558.

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