What is it and why do we need to establish one?

The case research this month that caught my eye is a case out of British Columbia, a Province we are excited to come visit once again in late February for a Public Workshop of Investigation Techniques. Hope to see you there! This case contains one simple argument or point to consider; is there a nexus established? In the past few years I have encountered quite a few cases like this with many professional and sophisticated employees and employers not quite understanding the point. While complex, the decision is simple and sometimes you need to focus on the bottom line when weighing evidence. I hope you enjoy the case and I look forward to any comments or questions you may have!

Ms Campbell complains that she was discriminated against on the basis of physical disability when her employment was terminated. She names three individual respondents, who were all supervisory personnel. The Employer denied the allegations and sought dismissal of the complaint, and an Arbitration was held.

The essence of Ms Campbell’s complaint stems from medical leaves associated with a knee injury she sustained. She alleges that there was a “temporal connection” with her being off work and false allegations of her poor performance.

The respondents said that Ms Campbell’s employment relationship was difficult, characterized by insubordination and failure to fulfill expectations. Investigations of Ms Campbell’s performance were often delayed until she returned to work after medically-related leave. This seemed to give a temporal connection with her return to work and the employer’s investigation of supposed wrongdoing by Ms Campbell.

The culminating incident in the employee relationship revolved around a series of meetings that Ms Campbell failed to attend, with or without notice and with or without medical support for her lack of attendance. She would often fail to show up or fail to support absences with medical documentation. Her particular issue was a knee injury.

Ms Campbell was terminated and the reasons given by the employer was exclusively based upon, and rooted in, her longstanding performance and behavioural issues and had nothing to do with any physical disability, including treatment or absences associated with her medical concerns.

Ms Campbell grieved the termination but the Union chose not to proceed with the grievance. The Union determined that an arbitrator would likely find that the employer had just cause to terminate.

The respondents say that throughout her employment, whenever Ms Campbell was faced with direction or critical feedback with which she disagreed, she would file unfounded, vexatious complaints of “bullying and harassment” against the individuals involved. Even after those complaints were objectively investigated and dismissed without foundation, Ms Campbell continued to describe the individuals involved in a critical and defamatory manner, often publicly.

The Arbitrator moved to a determination about the Complaint on the basis of submissions which involved a preliminary assessment where consideration was made as to the reasonable prospect the complaint would succeed. The threshold for such a review is low. Ms Campbell must only show her evidence is not speculation or conjecture. The requirements of a prima facie case of discrimination were recently affirmed by the Supreme Court of Canada in Moore v. British Columbia 2012 SCC 61. To demonstrate prima facie discrimination, complainants must show that they have a characteristic protected from discrimination; that they have experienced an adverse impact; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice.

In this matter, Ms Campbell has shown that she was disabled, in that she was frequently off work due to the knee injury and surgery. She could also show adverse consequences, i.e. the termination of her employment. The matter that the Arbitrator had to decide was whether she has no reasonable prospect of success in proving that there was a nexus between the disability and the adverse consequences.

The respondent’s evidence demonstrated that Ms Campbell had a longstanding and significant performance and behavioural issues at work. They provided evidence that they made numerous efforts to both bring their concerns to Ms Campbell’s attention and assist her in improving the situation, without success. The respondents submitted that they engaged in a fair, and transparent process of progressive discipline in response to Ms Campbell’s persistent pattern of poor performance and unacceptable behaviour at work.

Ms Campbell had a long history of making complaints and appeals and had submitted all the documentation to support her claim to the Arbitrator. In analysis the Arbitrator was unable to find a nexus between Ms Campbell’s disability and her dismissal. As such, her claims were dismissed upon preliminary review as having no likelihood of success.

This decision touches on an interesting dynamic, especially when an employer policy is limited to objective wording and/or a complaint is filed that an employee has been subject to discipline. I speak about the concept often in my training courses: in the analysis and investigation of the evidence, has a nexus been established? Has the Complainant made a connection in the evidence between their protected characteristic and the adverse impact? Often, I find that they have not. You may as well.