Employers concerned with the issue of when it is permissible to terminate the employment of an employee who refuses work travel for family reasons have been provided with some guidance in a recent decision of the British Columbia Human Rights Tribunal (the "Tribunal").
Section 13 of the BC Human Rights Code (the "Code") prohibits discrimination in employment on the basis of various protected characteristics, including family status. In Suen v Envirocon Environmental Services and another (No. 3), 2020 BCHRT 188, the issue arose as to whether Envirocon Environmental Services had contravened section 13 in terminating the employment of Brian Suen.
Background
Mr. Suen worked for Envirocon, a company providing environmental remediation services across Canada, as a project manager. Mr. Suen ordinarily worked in Burnaby, but was sometimes temporarily assigned to projects out of town. During out-of-town assignments, he was often able to work remotely or fly home at Envirocon's expense from time to time.
A few months after the birth of Mr. Suen's daughter, a project manager in Manitoba unexpectedly resigned and Envirocon assigned Mr. Suen to replace him. Mr. Suen understood that the assignment would have required that he relocate to Manitoba for two and a half months, with no rotations back to the head office, and trips home only on weekends and at his own cost. When Mr. Suen refused the assignment, Envirocon terminated his employment.
Mr. Suen filed a complaint with the Tribunal. Mr. Suen alleged that Envirocon had discriminated against him by factoring his family status into its decision to terminate his employment. Additionally, Mr. Suen argued that Envirocon's actions had an adverse effect on him due to his family status. In other words, Mr. Suen argued that two types of discrimination had occurred: direct and adverse effect. Courts sometimes find it helpful to make a distinction between "direct" discrimination, where an employer treats an employee differently because of a protected characteristic, and "indirect" or "adverse effect" discrimination, where, for example, an otherwise neutral workplace policy has a detrimental effect on employees with a protected characteristic.
Envirocon brought an application to the Tribunal to have the complaint dismissed without a hearing under subsection 27(1) of the Code. After consideration, the Tribunal held that the allegations, if taken at face value, could potentially constitute adverse effect discrimination on the basis of family status. The matter was brought to the BC Supreme Court on judicial review, and the chambers judge decided that the Tribunal decision was not patently unreasonable (our previous post on the Supreme Court decision can be found here). Envirocon appealed to the BC Court of Appeal, which ruled that Mr. Suen's allegations could not establish adverse effect discrimination and clarified the state of the law regarding family status discrimination in British Columbia ( 2019 BCCA 46). The Court of Appeal quashed the Tribunal's decision, ending the indirect discrimination element of the complaint, and remitted the case to the Tribunal for a hearing on the only remaining issue: whether Mr. Suen could establish direct discrimination.
The Tribunal's Decision on Direct Discrimination
The Tribunal noted that in British Columbia, the ground of family status is treated differently than other protected characteristics (for example, race, religion, sex, or political belief) under section 13 of the Code.
To establish direct discrimination, Mr. Suen had the burden of showing that his family status factored into Envirocon's decision making in terminating his employment. The Tribunal found the evidence could not support this conclusion. Mr. Suen alleged that previous projects had been offered to him as choices, but that once Envirocon learned of Mr. Suen's family issues, it ordered him to go to Manitoba. The Tribunal rejected this argument, noting that while previous assignments were presented as opportunities, both Envirocon and its employees understood that they were mandatory.
Neither did the Tribunal accept that a lack of rotations on the Manitoba assignment indicated direct discrimination. The Tribunal found that Mr. Suen misunderstood the rotation aspect of the Manitoba assignment. It accepted the evidence of Mr. Suen's manager that the previous supervisor of the Manitoba project had taken rotations every 21 days, and that the assignment would have included rotations for Mr. Suen. The Tribunal added that even if there were no rotations, it would not necessarily have found that there was direct discrimination.
The Tribunal also rejected Mr. Suen's argument that Envirocon's emails evidenced direct discrimination. Mr. Suen pointed to the fact that Envirocon characterized Mr. Suen's communications as "obnoxious", "flippant", and "insubordinate", which was incongruous with the actual tone of his emails. Calling it a "cautionary tale of the insufficiency of email for communicating issues of great import", the Tribunal acknowledged that there had been miscommunication between the parties, but emphasized that Envirocon was not obligated to delve into Mr. Suen's personal circumstances to determine why he was rejecting the Manitoba assignment, or to entice Mr. Suen to accept the assignment.
The Tribunal found that Mr. Suen's desire to stay with his family was not, on its own, a sufficient basis for turning down a work assignment in a job where travel was sometimes required. Mr. Suen had not established on a balance of probabilities that his family status factored into the termination of his employment. Accordingly, there was no direct discrimination.
Takeaway for Employers
In jobs where travel is sometimes required, an employer may have the right to discipline or terminate the employment of an employee who rejects work travel, as long as the employer does not directly or indirectly discriminate against the employee on the basis of their family status or any other protected characteristic. In this case, Mr. Suen did not clearly articulate that family concerns were the reason for his rejection of the assignment. The Tribunal found that it was not Envirocon's responsibility to delve into Mr. Suen's personal circumstances when he was vague about his reasons for rejecting the assignment.
To view the original article click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
