City of Vancouver guilty of retaliation against employee
Health & Safety Labour/employment
VANCOUVER (Canadian OH&S News)
VANCOUVER (Canadian OH&S News)
British Columbia’s human rights tribunal has found the City of Vancouver and one of its managers guilty of retaliation against an employee.
The ruling from British Columbia Human Rights Tribunal member Enid Marion, issued June 8, notes that Umesh Pathak had been trying for over a decade to become a manager, but he claimed his superior, Ray Stensrud, who retired in 2010, had denied him any opportunities to advance his standing.
Pathak filed a complaint against the city and Stensrud, alleging racial discrimination, and another complaint alleging retaliation for the initial complaint.
Marion determined Pathak had not proven the complaint of discrimination under s 13 of the Human Rights Code and dismissed it, but his complaint about retaliation under s 43 of the Code was found to be valid.
“Apart from some initial positive comments about Mr Pathak, Mr Stensrud demonstrated tangible animosity and disrespect towards Mr Pathak at many points in his evidence. I found his recollection of events to be inconsistent at times and, as noted later in this decision, unreliable on certain points,” Marion wrote.
The city has been ordered to pay $5,000 in damages to Pathak for injuries to dignity, feelings and self-respect, to rescind the suspension of Pathak in November of 2008 and remove the letter of suspension, as well as reimburse him for any lost benefits or wages.
“There really are two sides to the ruling, we were satisfied with the finding that the employer had retaliated against Mr Pathak for filing the human rights complaint, but we were disappointed that we weren’t successful on the race, colour, ancestry, place of origin side of it,” says Dan Soiseth, the lawyer who represented Pathak in the case.
Pathak, who was born in India and moved to Canada in 1976, had worked for the city since 1999 as a resident attendant at various buildings throughout the city, and has been working full-time since 2004.
City worker overlooked for promotion
Pathak went to the province’s Equal Opportunity Employment Program in December of 2007 and filed a human rights complaint against the city and Stensrud around June of 2008, after being overlooked for a promotion. Less than a year later, Pathak was suspended for five days without pay after an altercation regarding his conduct and responsibilities in the workplace.
Marion’s ruling notes that Stensrud said he felt Pathak “could not be trusted to care for the vulnerable persons he had been working with for over a decade.” Pathak filed the retaliation complaint with the tribunal regarding his suspension after he returned to work.
Marion concluded that while Pathak was subjected to “adverse treatment” when he was not selected for job promotions, he “considered all the alleged circumstances as a whole and [is] not persuaded that they provide a sufficient factual basis, when considered in context, upon which to infer that Mr Pathak was treated adversely because of his race, colour, ancestry or place of origin.”
But, if Pathak had not launched the human rights complaint, he would not have been suspended and would not have been subject to an overly aggressive investigation into his workplace behaviour or the “unnecessary, denigrating and disrespectful comments” about his work ethic, Marion states.
“I have also considered the humiliation and hurt he experienced as a result of the retaliatory conduct, as well as the tension within his family,” Marion wrote. “I accept that it hurt him deeply, that he continues to be saddened by it and that it affected his sleep for a period of time. I have also considered, however, that he continues to be employed by the City.”
In conclusion, Marion writes, “I am compelled to the conclusion that Mr Stensrud retaliated against Mr Pathak because he had filed a human rights complaint. I also find that the City is liable for this breach of the Code as his employer.”