Early last year, we blogged about the British Columbia Court of Appeal's decision in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46, where the Court of Appeal confirmed that there is a strict test for finding a prima facie case of family status discrimination under the British Columbia Human Rights Code. Recently, the British Columbia Human Rights Tribunal (the "Tribunal") issued a final decision applying the test confirmed by the Court of Appeal to dismiss Mr. Suen's human rights complaint, putting an end to the nearly four-year saga (pending possible judicial review of the Tribunal's decision).
Mr. Suen, whose wife had recently given birth, worked for Envirocon out of its Burnaby office. After a project manager in Manitoba resigned unexpectedly, Envirocon assigned Mr. Suen to the project for a period of 8 to 10 weeks. Mr. Suen declined the assignment "in consideration of his wife and 4 month old baby." Envirocon advised Mr. Suen that if he did not accept the assignment he would be dismissed for cause. Mr. Suen still refused the assignment, and Envirocon terminated his employment for cause due to insubordination.
Mr. Suen filed a complaint with the Tribunal alleging that Envirocon discriminated against him on the basis of his family status. After the Tribunal denied Envirocon's application to dismiss Mr. Suen's complaint without a hearing, Mr. Suen's case ended up before the British Columbia Court of Appeal, which confirmed the test for finding a prima facie case of family status discrimination in British Columbia is as follows:
- there has been a change in a term or condition of employment imposed by an employer; and
- the change results in a serious interference with a substantial parental or other family duty or obligation of the employee.
The Court of Appeal found that the facts alleged by Mr. Suen were not capable of satisfying the stringent second step of the test for a finding of prima facie family status discrimination – rather, the facts alleged established only that Mr. Suen is a parent, and Mr. Suen's desire to remain close to home to be with his child and assist his wife in caring for the child is no different than the vast majority of parents. The Court of Appeal remitted the matter back to the Tribunal for consideration in light of the Court of Appeal's reasons.
The Tribunal held a hearing, and, unsurprisingly, issued a decision on October 27, 2020 dismissing Mr. Suen's complaint in its entirety on the basis that "not wanting to be away from one's family is not, on its own, a sufficient basis for turning down a work assignment in a job where travel is sometimes required."
Notably, in the course of its reasons, the Tribunal provided some practical advice for employers dealing with disgruntled employees:
While nothing turns on it, and notwithstanding that latter point, it seems to me that a practical approach for an employer faced with an employee expressing reluctance in circumstances such as here would be to simply engage in a direct conversation to identify the employee's specific concerns and determine whether a workable solution that satisfies both sides becomes apparent. This would likely be far less costly in terms of time, money, and employee attrition. In this case, for example, Mr. Suen testified that a simple weekend home every couple of weeks would have sufficed. Ironically, accepting [the Employer's] evidence that the Manitoba Assignment would have been subject to both rotations home and certain budgetary and travel discretion, this would have readily been available. In short, if I accept in full the evidence of both Mr. Suen and [the Employer], their evidence converges to reveal that a simple, open conversation would have saved a significant amount of time, energy and resources for both sides.
While the Tribunal followed the Court of Appeal's direction in finding that the employer had no legal duty to accommodate Mr. Suen in this case, the Tribunal's comments are a good reminder that engaging in open dialogue with employees and considering reasonable compromise where feasible is often a good practice in order to maintain employee morale and avoid the cost of litigation that can result from an employees' hurt feelings.
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