Bempong v. Cooper Place and others

2017 BCHRT 23
Download Judgment: English
Country:
Region: Americas
Year: 2017
Court: British Colombia Human Rights Tribunal
Human Rights: Freedom from discrimination
Tags: Freedom from Discrimination, Mental health

The Plaintiff Ms. Dora Bempong worked with the Respondent Cooper Place and Central City Lodge (hereinafter the Society) for 20 years. She was a member of and represented by, Hospital Employee’s Union (hereinafter the Union), the second respondent. The relationship between the Society and the Union was governed by a Collective Agreement, which was filed. The plaintiff filed a complaint against the respondents alleging violation of section 13, provides for ground under which an employee should not be discriminated in employment and 14, which provides for several grounds on which discrimination is prohibited by union, employers’ organization or occupational association, of the Human Rights Code (hereinafter the code, discussed later) on the ground of her mental disability. Some mischief was committed against the plaintiff which made her feel unsafe and thereafter she went on paid sick leave, once she exhausted all of her sick leaves, she remained on unpaid leave, and then applied for long-term disability benefits, which she was denied. Both the respondents stated that the Collective Agreement does not provide for Short Term Disability Insurance; rather, it provides a sick leave benefit in the form of eighteen 7.5 hour days sick leave per year. The chief allegations which she levelled against the society were its refusal to act on her behalf despite her repeated complaints, failure to provide her long term disability benefit amongst others. Against the Union she alleged that its refusal to intervene in her bullying which caused her mental disability and post-traumatic stress disorder.

The respondent made submissions under section 27 (1)(b) and (c) of the Code, which talks about grounds which a complaint should be dismissed, they rejected by the allegation on the ground that she failed to provide any facts to support the relationship between her mental disability and the discrimination suffered. They further contended that there is no explanation of the adverse impact related to the ground of disability flowing from the current Collective Agreement. She does not even allege facts that, if proven, could amount to a contravention of the Code.

The Court considered the application under section 13 and 14 of the Code by the plaintiff and under section 27(1) (b) and (c) of the code and dismissed the complaints filed by the plaintiff.

The Court found rationale in the submission made by the union for dismissal of the complaint under 27(1) (b) on the ground of inadequate evidence and lack of information about the link between Ms. Bempong’s mental disability and her allegations of discrimination by the Union. On the plaintiff’s allegation of discrimination owing to the Collective Agreement, the Court held that the respondents have clearly stated the scope of the collective agreement (as mentioned in the above section), more so the plaintiff fails to explain the adverse impact related to the ground of disability flowing from the current Collective Agreement. She does not allege facts that, if proven, could amount to a contravention of the Code.
Moving further the Court agreed with the Society that at least a portion of Plaintiff’s complaint against it could not, if proven, amount to a contravention of the Code; in particular, as stated in the case of the Union, the mere assertion that the Society failed to specifically provide employees with “short-term disability insurance” does not allege a contravention of Code. Therefore the Court dismissed this portion of the complaint against under s. 27(1)(b). The remaining complaint against the society was that it refused to act on her behalf which resulted in her becoming ill, acted adversely when she was on sick leave, and constructively dismissed her. On this the Court held that the plaintiff’s allegations were vague and failed to relate them to her mental disability.
The court also held that the society had properly accommodated that plaintiff and hence dismissed the complaint under section 27(1)(c) of the code. The Court took into record the submission made by both the parties and it was convinced by respondents submission that plaintiffs allegations were so speculative that they do not meet the threshold set out in the earlier case of Hill (very low threshold of adducing sufficient evidence to take the allegations out of the realm of conjecture) and that, inadequate material has been submitted by the plaintiff. Therefore, it dismissed the complaint under 27(1)(c) as well.

“[The plaintiff] has not alleged any facts that could establish a link between what she says was HEU's discriminatory conduct and her mental disability . . . [the plaintiff's] allegations against HEU do not mention a mental disability but for stating that HEU ‘refused to assist in stopping the bullying.’ ‘The bullying caused the mental disability’. There is no information about what factor [the plaintiff's] mental disability played in any of her allegations of discrimination against HEU.” Paragraph 21

“Here, Ms. Bempong’s allegations about the conduct of HEU relate to her view that it failed to represent her appropriately. She says the HEU refused to intervene andassist her, but does not set out particulars in relation to that refusal or how it relates to disability. The allegation that workplace bullying caused a mental disability is not sufficient to support the allegation that a disability was a factor in the union’s conduct.” Paragraph 23

“[T]he mere assertion that the Society failed to specifically provide employees with ‘short-term disability insurance’ does not allege a contravention of Code.” Paragraph 2

Section 13, Human Rights Code: Discrimination in employment: (1)A person must not (a)refuse to employ or refuse to continue to employ a person, or (b)discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. (2)An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1). (3)Subsection (1) does not apply (a)as it relates to age, to a bona fide scheme based on seniority, or (b)as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer. (4)Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. Section 14, Human Rights Code : A trade union, employers' organization or occupational association must not (a) exclude any person from membership, (b) expel or suspend any member, or (c) discriminate against any person or member because of the race, colour, ancestry, place of origin, political belief,religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership. Human Rights Code: Sections 27(1)(b) and (c):Dismissal of a complaint: (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply: (b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code; (c) there is no reasonable prospect the complaint will succeed;
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