A B.C. Supreme Court judge has ruled that a human-rights tribunal decision to dismiss a Peace Arch Hospital nurse’s allegations of sexual harassment as having no reasonable prospect of success was “patently unreasonable.”
According to reasons for judgment published online Monday (July 19), the tribunal’s decision against the nurse – who worked in the emergency department – was made in June 2019, two years after she was fired by Fraser Health Authority, which alleged she had committed “professional breaches by treating her own parents, accessing their medical records, and giving them medication taken from the hospital.”
The nurse disputed the latter allegation, however, “the others are not seriously in dispute,” the court document notes.
Her manager at PAH initiated and led the investigation and disciplinary process, signed the termination letter and reported her to the College of Registered Nurses of B.C. in July 2017, the reasons continue. In January 2018, the nurse filed a complaint under the Human Rights Code, alleging that the manager had made “inappropriate workplace sexual overtures to her over a one-year period, causing discomfort.”
“She further claimed that when she rebuffed those advances, he initiated the investigation leading to her termination,” the reasons for judgment state. She alleged discrimination on the basis of sex, marital status, place of origin and family status.
The tribunal’s decision to dismiss was based solely on written submissions, all of which were drafted by the nurse, who was self-represented. In court, she argued it “failed to consider the core of her complaint: repeated unwelcome sexual harassment by her supervisor.”
She contended that the tribunal’s decision effectively required her to prove that sexual harassment was the sole ground for her termination, “rather than that sexual harassment, or a protected characteristic, was merely one factor in that adverse treatment.”
In court, the tribunal submitted “that the decision reasonably concluded that there was no reasonable prospect that the petitioner’s protected characteristics could be found to have played any role in her termination, given the ample grounds for that termination.”
The court found the tribunal’s decision patently unreasonable because “it identifies and focuses on the petitioner’s termination as the sole alleged adverse treatment.”
“It fails to consider whether a protected characteristic, or the sexual harassment, could have played any role in the investigation and termination, instead asking itself whether there existed sufficient other grounds for termination, such as to render speculative any discriminatory connection. As such, it fails to consider two central arguments advanced by the petitioner, and represents an arbitrary exercise of discretion in dismissing the entire complaint.”
The court documents note that the nurse’s termination was grieved by the union, and that Fraser Health agreed to resolve the grievance in late 2017, indicating she would be reinstated. The nurse rejected the resolution because it “did not adequately address ‘…the discriminatory conduct and consequences.'” She indicated instead her intent to file a complaint with the tribunal, and Fraser Health terminated her again in spring 2018.
The court set aside the tribunal’s 2019 decision and sent it back for reconsideration, including whether the alleged sexual harassment in itself could constitute adverse treatment. It notes that proceeding straight to an oral hearing may be preferable, “to address the perhaps summarily irresolvable factual conflicts about the alleged harassment, which will likely require assessments of credibility.”