A Domino’s Pizza franchise in British Columbia has lost its bid to have a human rights complaint, filed by a temporary foreign worker from Ukraine it fired, dismissed.
The pizzeria argued there was insufficient evidence to support the woman’s claims and it also questioned her credibility. But the B.C. Human Rights Tribunal denied its application, and it will now proceed to a full hearing.
Background
The worker, SC, was hired in December 2016 as a part-time counter assistant at Domino’s.
On May 10, 2017, she was hired full-time as a food service supervisor under the Temporary Foreign Worker Program by the owner, BD. She continued to work at the same Domino’s location until Jan. 7, 2018.
At that point, she was transferred to another restaurant in the same town — managed by DL.
During her time at this location, SC alleged that DL discriminated against her because of her race, place of origin, and sex.
SC’s allegations included instances where DL behaved aggressively and threateningly towards her after learning that she was a temporary foreign worker from Ukraine. Additionally, she claimed that DL sexually harassed her by making inappropriate comments about her relationships with the drivers in front of other employees.
One incident involved DL making a disrespectful comment about SC’s appearance when she asked for a smaller work shirt. “Do you want a smaller T-shirt to show your boobs here to everyone?” the manager said.
Furthermore, SC accused the owner of terminating her employment instead of investigating her complaints and ensuring her protection in the workplace. She raised this issue after an incident in April 2018, which she referred to as the “April Incident.”
The ‘April incident’
During the “April Incident,” SC witnessed an interaction between her manager and a new employee, and she expressed her concerns about the manager’s intimidating behavior. In response, the manager allegedly approached her aggressively from behind and reached for her neck.
SC managed to stop the manager from touching her neck and asked her not to do it again. Following this incident, DL took CS to the warehouse with the assistant manager and informed her that a report would be filed against her. As a result, DL suspended her from work.
On April 16, 2018, after learning that she was no longer scheduled to work, CS called the owner to complain about the alleged harassment and discrimination from DL. On April 17, 2018, the owner followed up with her and stated that he had reviewed the store’s video footage but did not see DL attempting to grab her by the throat. He mentioned needing more time to check the footage.
SC also claimed to have sent an email explaining the harassment, but the respondents did not acknowledge this email in their submissions.
SC alleged that she did not receive a response to her email, so she called the owner on Monday, April 23. During that call, she said he terminated her employment. The following day, she contacted the police, and they initiated an investigation.
The Respondents disputed her version of events. They argued that SC and DL had a good working relationship but that her performance fell short of expectations. They provided examples of insubordinate behavior in February and March 2018, and they considered the “April Incident” as an additional instance of insubordination.
According to the Respondents, during the “April Incident,” SC took issue with the manager’s interactions with a new employee and refused to listen to DL, grabbing her hands instead. Following a meeting with DL on April 13, 2018, where SC refused to sign a warning letter, DL suspended her from work.
The Respondents claimed that BD terminated her employment on April 16, 2018, due to performance issues and insubordination. They maintained that SC later contacted the owner to complain about DL’s behavior but that a thorough investigation showed no merit to her complaints.
The ruling
The tribunal noted that it’s role is to review all the evidence presented to determine if there is a reasonable chance the complaint will succeed in a hearing.
The threshold for this review is not very high, and the complainant only needs to show that the evidence goes beyond mere speculation.
To prove her case in a hearing, SC must establish three things: (1) she possesses one or more protected characteristics under the Code, (2) she experienced negative effects in her job, and (3) one or more of her protected characteristics contributed to the negative impact she faced.
In this context, negative effects are referred to as the “complainant’s case.” SC has the burden of proving her case during the hearing. However, in the application to dismiss under Section 27(1)(c), the burden falls on the Respondents to demonstrate that the complaint has no reasonable chance of success.
The analysis of this case indicates that credibility is a significant issue, the tribunal said. While the existence of credibility issues does not automatically warrant dismissal under Section 27(1)(c), the available materials do not allow for a resolution of the factual disputes without a full oral hearing.
The employer argues that SC’s complaints have no reasonable chance of success, but the evidence provided does not support that claim, it said.
Regarding the protected characteristics, it is not disputed that SC is a woman from Ukraine, protected from discrimination based on race, place of origin, and sex under the Code. The Respondents did not raise specific arguments related to race as a protected characteristic.
As for the adverse impacts alleged by SC, they fall under Section 13(1) of the Code, which covers discriminatory harassment. The Tribunal considers various factors to assess harassment claims. If SC can prove that the alleged behavior occurred, the adverse impacts on her mental and physical well-being at work are more than mere conjecture.
Power imbalance
The incidents took place over several months, involving an imbalance of power and serious behavior, including physical aggression and demeaning comments. SC provided detailed accounts of the harassment she experienced, and the Respondents’ evidence does not strongly support their position.
On the issue of the workplace investigation, SC’s complaint that the response to her harassment complaint constitutes discrimination in employment is not without merit, the tribunal said. The evidence does not convincingly show that the Respondents adequately addressed her complaint.
Concerning the termination, SC’s complaint raises the question of whether her protected characteristics played a role in the decision to terminate her. The evidence presented by the Respondents regarding performance issues and insubordination does not overwhelmingly support their claim that the termination was solely non-discriminatory.
The tribunal also denied the application to dismiss the complaint on other grounds, including the fact there were other proceedings taking place — as they did not sufficiently address SC’s alleged discrimination under the code.
It also refused the application for dismissal under Section 27(1)(e) because the evidence does not demonstrate that SC filed her complaint in bad faith or for improper purposes.
For more information, see Cherkashyna v. Madd Pizza Company Inc. dba Domino’s Pizza and others, 2023 BCHRT 69 (CanLII)
