Human Rights Office

Human Rights Office
Human Rights Office

The Employee v. The Company and the Owner, 2017 BCHRT 266

Summary:

On July 17, 2017 the Employee filed a complaint alleging that the Owner sexually harassed her in her employment in violation of section 13 of the Human Rights Code [Code].

In May 2017, the Employee began working for the Company cleaning RVs.  At the time she was 24 years old, with a grade 11 education.  She is a single mother and this was the first job she was able to attain since the birth of her child.  Her position was an on-call position.

The Employee alleges that on June 3, 2017 the Owner in engaged in unwanted sexual advances, including unwanted touching.

The Employee reported the incident to Mr. S, another man for whom she performed on-call work for on the same property.  She informed Mr. S that she was going to go to the police.  At this time, Mr. S said that the Owner wanted to offer her an RV to live in and he would pay her rent for 3 months.  He did not want her to report the incident to the police.

On July 17, 2017 the Employee filed her complaint with the commission.  On July 21, 2017 she accepted an on-call job from Mr. S, who informed her his friend wanted to “get to know her the way that the owner did”. On July 28 the Owner received notice of the human rights complaint.

Between August 9 – 17 the Employee was in contact with Mr. S regarding the human rights complaint and he was attempting to resolve the issue on behalf of the Owner.

Mr. S and the Employee agreed upon a settlement of $800 with a promise that she would be able to keep her job.

The Employee met with the Owner to receive her financial settlement and he presented her with a waiver to sign. Following that interaction, the Employee claims she was never contacted again for employment with either Mr. S or the Owner.

Questions to be Determined?

  1. Can the case move forward with a settlement already in place?

 

Findings:

  1. Can the case move forward with a settlement already in place? (YES)

Reasoning:

The Tribunal found that people are not able to contract out of their rights under the Human Rights Code, citing Insurance Corporation of British Columbia v. Heerspink, [1982] @ SCR 145 at 158. For that reason, regardless of whether or not the parties have entered into a settlement agreement with respect to a human rights dispute, it does not deprive the Tribunal of jurisdiction to hear the dispute.

The Tribunal has frequently dismissed complaints in the face of a settlement agreement on the basis that proceeding with the complaint would not further the purposes of the Code, however, in this case, the Tribunal found that it could proceed for the following reasons:

  1. The language of the release;
  2. Unconscionability – “which exists where there is an inequality of bargaining power and a substantially unfair settlement”;
  3. Undue influence;
  4. Whether the party received independent legal advice;
  5. Conditions of duress – which may be related to the timing of the agreement, financial need, or other circumstances;
  6. And whether the party received little or no consideration for the release.

In considering the above reasons, the Tribunal found that the case should go forward and be heard before the Tribunal, stating, the substantial unfairness of the bargain combines with the power differential between the parties, the Employer’s conditions of economic and emotional distress at the relevant time, the lack of power legal advice, and the nature of the allegations to persuade me that the purposes of the Code are not served by holding these parties to this bargain.

Outcome:

Case may proceed.