Photo: Glacier Media File Photo
The British Columbia Human Rights Tribunal has denied an ex-staffer’s claim of discrimination against her union based on mental disability, deciding there was no evidence she was stereotyped.
Megan Redmond, who was a member of the Hospital Employees’ Union (HEU) while she worked at Princeton District Community Services Society (PDCSS), launched a complaint against the union, alleging they had discriminated against her based on her mental disability when they represented her in her grievance, according to a tribunal ruling published last week.
The HEU applied to dismiss the complaint, arguing it was handled appropriately and she did not “experience any adverse impacts,” noting she had not “established that her disabilities were a factor in any of its actions or decisions in the handling of her grievance," the ruling said.
Redmond was working at PDCSS in March 2019, after she suffered a brain injury and underwent about 1.5 years of rehabilitation, employed as a residential support worker for people with disabilities.
According to the ruling, Redmond was let go on April 8, 2020, citing several reasons for the termination including missed shifts and tardiness, violating a policy with a social media post, unauthorized use of overtime, failure to check in according to a policy on working alone, using steak knives to play darts with a client and disregarding instructions against non-essential travel to take a client shopping and out for lunch.
On April 14, 2020, HEU filed a grievance for Redmond alleging unjust termination, failure to accommodate and discrimination based on medical disability.
The union service representative for Redmond, who was responsible for assessing the grievance to determine what sort of outcome Redmond could get, negotiating with PDCSS, and keeping Redmond in the loop, sent her a letter on April 30, 2020, letting out her assessment of the grievance.
“[The] assessment was that Ms. Redmond had engaged in some misconduct and should acknowledge this, but HEU would propose to resolve the grievance by having PDCSS reinstate Ms. Redmond and impose lesser discipline,” the ruling said.
It also pointed out that there was no evidence to suggest discrimination, but that Redmond could provide HEU with any medical documentation that would explain limitations or restrictions related to her misconduct.
A medical letter provided by Redmond's doctor to the HEU during the grievance stated that due to her brain injury, “Redmond has long-term consequences of her injury, including impulsivity, difficulties with self-control, poor self-awareness, and impaired judgment in social situations.”
The letter adds that it is important to help brain injury survivors maintain close to a normal quality of life, including maintaining employability with support and mentorship in place.
At the time, the PDCSS had not been provided with full scope of medical documentation.
The HEU and Redmond communicated about the grievance by email and phone.
The union worker stated that Redmond has expressed that she felt the worker did not believe her explanations for her conduct at work and was upset that she did not “seem to agree” that the PDCSS had discriminated against Redmond by failing to accommodate her disabilities.
One of the emails between the union worker and Redmond said that she had “provided limited disclosure in November” in regards to her medical condition that she did not disclose rendering the employer unable to fully explore what, if any, accommodation was needed.
“Employees do not get to withhold medical information and then seek to punish the employer for failure to accommodate,” the ruling reads.
“Accommodation is not a word to use as a 'get out of jail free card' when being disciplined for legitimate misconduct. Being accommodated in the workplace is a collaborative effort by employers and employees to identify what is wrong and find a way to fix it by balancing everyone’s needs – including those of the clients receiving services from PDCSS.”
From there, PDCSS made an offer to resolve the grievance by paying Redmond $2,000 on May 12, 2020, which was about three months of her average earnings, in exchange for a withdrawal of the grievance, a confidentiality clause, and a release of future claims, according to the decision.
This was also the date that Redmond provided the letter from her doctor to the HEU.
Throughout May, Redmond was sent letters that explained that PDCSS did not intend to reinstate her employment and that the HEU recommended she accept the settlement offer.
Redmond commenced an appeal under HEU’s internal appeal process on June 17, 2020.
The HEU went on to further assess whether PDCSS met its duty to inquire into whether Redmond had a disability that required accommodation.
Soon after, Redmond was also assigned new HEU representatives, as it was determined that there had been a breakdown in the relationship with her current one.
The HEU brought the grievance to the industry troubleshooter process, which recommended resolution of the grievance on the same terms that PDCSS had proposed, but with a payment of $4,000 instead of $2,000, which Redmond agreed to.
Redmond agreed to HEU’s recommendation to resolve the grievance on these terms.
Tribunal member Jessica Derynck ruled that the HEU did not treat Redmond “harshly or stereotype her based on her disabilities,” as there is no evidence on which to infer that her disabilities were a factor in the adequacy and level of representation she received, even if she had found the level of representation to be an adverse impact.
Redmond’s complaint against the HEU was dismissed.
