Home Featured Harassment, discrimination retaliation case against Sarah McLachlan School of Music hits wrong note with labour board

Harassment, discrimination retaliation case against Sarah McLachlan School of Music hits wrong note with labour board

by HR Law Canada

The Alberta Labour Relations Board has summarily dismissed an appeal from a former employee at the Sarah McLachlan School of Music who claimed her termination was retaliation for reporting workplace harassment and discrimination.

L.M. began her employment with the school in 2017, working on one-year fixed-term contracts. The employer is a not-for-profit society and a registered charity that provides at-risk and underserved children and youth with music education at no cost.

In September 2020 she was offered a new permanent part-time position with administrative duties. She accepted that offer but, on Oct. 1, 2020, raised a concern after receiving her first paycheque.

It turned out the contract the employer sent her had an error regarding the salary. L.M. retracted her acceptance of the offer as a result of the salary mistake. On Oct. 8, 2020, the employer sent her a revised offer — but she refused it, calling it discriminatory.

She felt the job was a demotion, based on gender, and that she was being harassed by the operations manager into accepting the position.

L.M. reported her concerns to the executive director at the school, and it hired an external human rights investigator to look into her claims. That investigator did not make any findings that discrimination, harassment, or bullying occurred.

OHS complaint filed

L.M. filed a Discriminatory Action Complaint (DAC) on April 29, 2021, under Alberta’s Occupational Health and Safety Act. In it, she said she refused the position due to discrimination because the tasks were biased on gender.

“The Complainant alleges at this time they were harassed by a managers [sic] to accept this position which they found unsuitable for the aforementioned reasons,” according to the DAC report. “This harassment was reported to the employer. The Complainant outlined their reasons for declining the second contract including but not limited to, “… I’d realized that (the Operations Manager) had lied about the nature of the work and pay, and suspected that he had targeted me to perform this work for him based on my gender.”

After an Occupational Health and Safety (OHS) officer dismissed the DAC complaint in July 2022, L.M. appealed the decision to the board.

The board’s ruling

The board reviewed the case materials, including the Notice of Appeal, the DAC Report, responses from both parties, and submissions on similar precedents. It found no merit in the appeal, stating it had “no reasonable prospect of success.”

It noted that L.M.’s submissions were essentially an attempt to re-argue the matter that was before the OHS officer.

“It is not enough to simply disagree with the DAC Report and list facts that could support an alternative conclusion,” it said. “The Appeal Body rarely second guesses an OHS Officer’s findings of fact when reviewing a decision on the standard of reasonableness.”

The board’s decision acknowledged L.M.’s engagement in a protected activity when she reported harassment but found her refusal to accept the new job offer led to the termination of her employment. It pointed to the DAC Report which “provided detailed reasons for finding that the Appellant’s employment ended because she would not accept the SSC/TA position.”

The board upheld the OHS Officer’s finding that her termination was due to her refusal to accept the revised job offer, not her harassment reports.

The decision highlighted the employer’s efforts to offer a more sustainable role amidst pandemic-related challenges. The employer argued, “(It) went through the trouble of finding a more sustainable and secure position that it felt was well-suited for the Complainant’s skill set,” the DAC Report said.

Not a wrongful dismissal case

At the end of its ruling, the board pointed out that the scope of the OHS officer’s investigation did not include a legal assessment of whether L.G. was terminated for cause, without cause, or quit.

“This is recognized in the last paragraph of the DAC Report, which states that a discriminatory action complaint is not a wrongful dismissal action, and the only question is whether the Employer has proven a reason for terminating the Appellant’s employment other than her engagement in a protected activity,” it said. “Any references in the DAC Report to things such as job abandonment do not necessarily have the same legal meaning as they would in a wrongful dismissal or other employment-related matter.”

For more information, see Miciak v Sarah McLachlan School of Music Society, 2024 ABOHSAB 2 (CanLII)

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