Human Rights Advisory Services

Human Rights Advisory Services
Human Rights Advisory Services

Wells v. Langley Senior Resources Society, 2018 BCHRT 59
 

Summary

On July 28, 2015, the Applicant, Shelley Wells filed a discrimination complaint alleging that Langley Senior Resources Society discriminated against her in the area of employment on the basis of her mental disability, and a retaliation complaint against the Society. The Society said that it terminated Ms. Wells’ employment because of problems with her management style, errors in administration, and several mistakes.

The Society is a non‐profit volunteer organization providing services to approximately

2,000 members and it is governed by a volunteer board. An Executive Director, overseen by the Board, manages the Society's activities and the centre. The Applicant applied for this position in 2014 after the previous Director abruptly resigned due to several problems. Ms. Wells, who has an extensive background in community development and management, got the position and relocated her family from Vancouver to Langley. She was not told that they Society had several issues.

After her arrival in September 2014, Ms. Wells found that the Society had severe issues: administratively, financially, and personnel related. She also discovered a core group of activist members who were very angry with the Board. Ms. Wells also said that the employee handbook was outdated and lacked policies, including a policy regarding bullying and harassment.

The arrival of Ms. Wells brought new systems and policies, and staff turnover, which created a group of angry ex-employees and emboldened the actions of the Activist Members that were already difficult. These two groups started spreading rumours about Ms. Wells that quickly developed into bullying and harassment, in particular coming from a Problem Member. The Applicant reported this situation to the Board several times.

By February 2015, Ms. Wells managed to solve many of the financial, administrative, and personnel issues, so the Board prepared a performance evaluation showing positive assessments for Ms. Wells against all criteria. However, the incidents with Activist Members had worsened. The episodes of bullying and harassment increased dramatically, as often as 20 times per day, and now included what Ms. Wells perceived to be threats against her and her family. She told the Board she was near mental burnout; the Board still did nothing to stop it and advised her not to involve the police. The Applicant had lost some weight due to the stress, was having panic attacks, and panicked every time someone approached her at the Centre.

In March 2015, when Ms. Wells was near a mental breakdown after several meeting where she was verbally abused and spat at, two other staff members told her that the Problem Member had accosted and sexually harassed them. After all the incidents, the Applicant was shocked that the Board would not do anything to manage the bullying and harassment. She went on medical leave the next day.

The Board alleges that Ms. Wells left few management issues unresolved and that the situation was so chaotic that they had to find someone on a temporary basis to help get things in order while Ms. Wells was on leave. When Ms. Wells went on leave, the Board brought the Workers’ Compensation Board (WCB) in to talk about bullying and harassment, and the Board also developed a policy to deal with it and removed and banned the Problem Member.

On April 27, 2015, Paul Goldberg started in the role as temporary Executive Director. He did not experience bullying or harassment, nor did he hear of the allegations of performance issues involving Ms. Wells.

On June 2, 2015, WCB denied Ms. Wells’ claim for health care and wage‐loss benefits related to “a mental health disorder” linked to the bullying and harassment at the Centre.

On the morning of July 13, 2015, Ms. Wells’ scheduled return to work date, she was met by Board members at the front door and was told that there was no need to enter the building as her employment had been terminated, alleging performance issues and faulty management style.
 

Questions to be Determined and Findings

1. Was Ms. Wells’ disability a factor in the Society’s decision to terminate her employment? (YES)

2. Did the Society take retaliatory actions against Ms. Wells? (NO)
 

Reasoning

1. In a human rights complaint, the burden to establish that discrimination has taken place rests with the complainant. In this case, Ms. Wells had to prove that she had a mental disability, that she experienced an adverse impact regarding her employment, and that it is reasonable to think that her mental disability was a factor in that adverse impact.

Ms. Wells gave sufficient evidence about the symptoms she experienced immediately before and during her medical leave, together with the lasting impact of her conditions. Additionally, she provided medical evidence to the Workers Compensation Board that she was diagnosed with DSM-5 psychological disorder caused by work‐related stressors resulting in her inability to attend work as of March 5, 2015.

Regarding the adverse impact on her employment, the Tribunal establishes that

“Whether in the probationary period or not, it is difficult to conceive of a situation in which losing one’s employment would not constitute an adverse impact regarding employment within the meaning of s. 13 of the Code. That the Society opted to deliver the news of the termination in such a perfunctory way, surprising Ms. Wells at the moment of her return to work after a lengthy medical leave, adds to the adverse impact suffered by Ms. Wells.” (p. 170)

The Board knew ms. Wells' situation regarding the bullying and harassment she was experiencing, and her medical leave lasted months; this should have signalled that the Applicant had a mental disability.

“In Gardiner v. Ministry of Attorney General, 2003 BCHRT 41, the Tribunal stated at para. 164 that a respondent has a duty to inquire “where it has reason to believe that there is some question regarding a possible adverse effect of an employee’s medical condition on his ability to do the work prior to taking any action which would adversely impact on the employee.” (p. 177)

The Board even required a medical note stating that Ms. Wells was fit to return to work, which proves that they were aware of the Applicant’s mental disability. Therefore, they knew the issues that arose after the continual bullying and harassment that she experienced.

Regarding Ms. Wells professional decisions, the evidence showed that no performance issues were rising to the level of concern that the Board considered as justification for its dismissal decision.

“Mr. McGregor said that the Board worried that if Ms. Wells came back, the Centre would revert to the state it had been in December. Yet, according to Ms. Sailer, after Ms. Wells took leave and before July 3, 2015, the Board addressed the bullying issue in order to ensure Ms. Well’s successful return to a less poisoned environment, and Ms. Sailer expressed her expectation that Ms. Wells would be returning.” (p. 208)

In addition, the Board perceived the new Director as not being fragile like Ms. Wells, and not having any psychological issues that would make him susceptible to harassment and bullying:

“I find this draws a direct line between Ms. Wells’ known or perceived fragile mental state and the reason why the Board did not want her back.” (p. 209)

The Tribunal found the Society’s explanation constantly shifting and filled with inconsistencies, and decided that Ms. Wells’ disability was a factor in her dismissal, breaching the Code.

2. Ms. Wells says that two actions of the Society constitute retaliation. The first is the Society’s statements to its members and the public at an annual general meeting that Ms. Wells’ employment had been terminated and that she had filed a complaint WCB. The second is the new Executive Director’s threat that the Society would make sure she received nothing as she was “ungrateful.”

The tribunal found that her claims did not constitute retaliation because the Society did not have the power to impose a penalty on or deny a right or benefit to Ms. Wells in the settings in which Ms. Wells pursued her claims.
 

Remedy

Society must pay $30,000 for injury to dignity.