Home Featured Fairmont Hotel Vancouver loses bid to have human rights complaint tossed from worker it fired for alleged poor performance

Fairmont Hotel Vancouver loses bid to have human rights complaint tossed from worker it fired for alleged poor performance

by HR Law Canada

The Fairmont Hotel Vancouver has lost its attempt to have a sexual harassment and discrimination complaint from a worker it fired over alleged performance issues dismissed by the British Columbia Human Rights Tribunal.

The worker, CK, filed the complaint against her former employer and three of its employees. The woman, who worked as an assistant banquet manager, filed the complaint under section 13 of the Human Rights Code, claiming that she was subjected to sexual harassment and ultimately fired due to her sex.

The Respondents, Fairmont Hotel Vancouver and its employees, denied the allegations, stating that CK’s termination was not discriminatory but instead was a result of poor performance.

Performance concerns from employer

CK was hired on April 10, 2018, and — after completing training — began working regular shifts on June 1, 2018. The hotel said it received multiple complaints about her from other employees and clients.

Based on those complaints, the employer was of the view there were performance issues and it gave a letter of expectation to CK on June 19, 2018.

She received additional training the week of June 22, and she met with a manager on June 28 to discuss concerns about her performance. The Fairmont subsequently determined CK’s performance issues had not improved, despite additional training, and she was fired on July 5, 2018.

The parties agree, at some point prior to her termination, CK made claims of sexual harassment in the workplace. She alleged that the respondent employees used vulgar language in their conversations in the workplace.

That included an employee saying “bring it on, bitch” during a game of darts and that another worker made rude, vulgar and offensive jokes in her presence. When she reported the concerns, she was retraumatized when the manager said “depends on who the audience is.”

The Fairmont investigated these complaints and concluded the alleged comments either weren’t said or did not constitute sexual harassment.

They sought to dismiss the complaint under sections 27(1)(b) and 27(1)(c) of the Code.

The ruling

In the ruling, the tribunal clarified that the application to dismiss was based solely on the information provided in the complaint and not on any additional evidence or explanations from the Respondents.

Regarding section 27(1)(b), the tribunal stated that CK’s allegations, if proven, could support a nexus between her sex and the adverse impact, potentially constituting a contravention of the code. Therefore, the application to dismiss the complaint under this section was denied.

The tribunal also considered section 27(1)(c), which allows for the dismissal of a complaint that has no reasonable prospect of success. However, the tribunal found that the evidence provided by both parties was inconclusive, particularly regarding the alleged sexually explicit comments made in the workplace and the timing of CK’s termination.

“I am satisfied that the timing of the termination could raise a reasonable inference that the termination was connected to (CK’s) complaints about sexual harassment in the workplace,” it said. “An inference of discrimination may be drawn on basis of circumstantial evidence that makes such an inference more probable than other possible inferences.”

As a result, the tribunal ruled that CK’s assertion that her sex was a factor in her termination was not mere conjecture and allowed the complaint to proceed.

The ruling emphasized that the decision to allow the complaint to proceed did not guarantee CK’s success at a hearing. The tribunal also encouraged both parties to consider using mediation services to resolve the matter outside of a formal hearing.

For more information, see Kingston v. Fairmont Hotel Vancouver and others, 2023 BCHRT 68 (CanLII)

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