Monday, February 28, 2011

LRB upholds decision to terminate LTD benefits

In Dewell v. BC Public Service Agency  Vice Chair Adam dismissed a grievor’s application for review of the decision of a claims review committee that upheld cutting off her long term disability benefit. Under a number of BC public sector collective agreements (public service and health for example) medical disputes about long term disability are adjudicated by a panel of doctors. The LRB has ruled that such decisions fall within the definition of an arbitration which is reviewable under s.99 of the Code and the usual tests for review apply. In this case the grievor alleged that she had been denied a fair hearing.
An interesting feature of this case is that the union did not participate in the application. While a union has exclusive conduct of a grievance through all of its steps, including arbitration, the Code allows grievors who are unhappy with the results of an arbitration award to bring an application to the LRB independently of the union.

The case also contains a good summary of when an arbitration award may be challenged on the basis of new evidence.  Adam quoted from a previous court decision as follows:

In addition to the requirement that the proposed new evidence go to the heart of the issues to be determined by the arbitration board and that the new evidence could not have been obtained by the exercise of due diligence, the Board may, in its discretion, wish to consider other factors, including:

(a)The public interest.

(b)The nature of the grievance

(c) Motive of the applicant ...

(d)After discovery of the new evidence was the application to adduce that evidence made promptly?

(e)Does the proposed new evidence relate only to a minor or trivial issue?

(f)Have third parties already acted on the basis of the award?

(g)Was the new evidence obtained long after the handing down of the award?

I do not suggest that this list is exhaustive, or that the application of any of these factors should result in the exclusion of the new evidence in this case.

Wednesday, February 16, 2011

Sexual Harassment--Human Rights Tribunal awards $30,000 damages for unwanted sexual text messages

In McIntosh v Metro Aluminum Products and another issued by the BC Human Rights Tribunal to-day,  Tribunal member Enid Marion awarded a total of $30,000 in lost wages and damages to a woman who complained that her boss' unwanted sexual text messages caused her to quit her job. 

The complainant had a sexual relationship with Zbigniew Augustynowicz, the owner of the company where she was employed.  When she ended the affair he repeatedly sent her text messages that were sexual in nature and aggressive in tone.  These caused to leave her employment and McIntosh filed a complaint with the Human Rights Tribunal.  The tribunal found that there had been sexual harassment:

[133] As the owner of Metro, and Ms. McIntosh’s employer, Mr. Augustynowicz was in a position of authority over her. He was responsible for the terms and conditions of her employment and for ensuring that she was employed in a workplace free of sexual harassment. He failed in this responsibility. He repeatedly referred to Ms. McIntosh in a sexually demeaning manner in his communications to her. He knew, or ought to have known, that his sexual comments and propositions were offensive, inappropriate, and unlawful in an employment context.

[134] As consenting adults, Mr. Augustynowicz and Ms. McIntosh were entitled to enter into a sexual relationship, however ill-advised it might be in a workplace given their respective positions. However, once that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. Augustynowicz had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh’s working environment.

[135] After considering all the circumstances, including the overall context, tenor and content of the text messages, I find that Ms. McIntosh has proven that she was subjected to repeated comments of a sexual nature that Mr. Augustynowicz knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. 

The Human Rights Tribunal, however remains a place where damages for human rights breaches are still relatively low.  For example, in this case more than half of the damages awarded were for related to lost wages and only $12,000 were for damages for injury to dignity.