Redmond v. Hospital Employees’ Union, 2024 BCHRT 203
Date Issued: July 5, 2024
File: CS-002210
Indexed as: Redmond v. Hospital Employees’ Union, 2024 BCHRT 203
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Megan Redmond
COMPLAINANT
AND:
Hospital Employees’ Union
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Jessica Derynck
Counsel for the Complainant: Steven Barker
Counsel for the Respondent: Melissa VanderHouwen and Emily Raven
Date of Hearing: June 6-9 and July 10-11, 2023, with written submissions closing July 21, 2023
Location of Hearing: Video Conference
I INTRODUCTION
[1] Megan Redmond became a member of the Hospital Employees’ Union [HEU] in September 2019 while she worked at Princeton District Community Services Society [PDCSS]. PDCSS was Ms. Redmond’s first job after she suffered a brain injury and underwent about 1.5 years of rehabilitation. Ms. Redmond also has ADHD. At PDCSS she worked as a residential support worker for people with disabilities.
[2] In April 2020 PDCSS terminated Ms. Redmond’s employment and HEU filed a grievance on her behalf. Ms. Redmond alleges that HEU discriminated against her based on mental disability when it represented her in her grievance, contrary to s. 14 of the Human Rights Code [Code].
[3] For her complaint to succeed, Ms. Redmond would need to establish that she experienced an adverse impact in union representation in which at least one of her disabilities was a factor. She alleges that HEU represented her differently from other union members to her detriment because of her disabilities. She says one HEU representative’s conduct and communications constituted adverse treatment that impacted her dignity and self-worth. She also says that HEU relied on stereotypes about mental disabilities when deciding on a course of action for her grievance, and failed to put her strongest case forward because of a belief that her disabilities would work against her.
[4] HEU asks the Tribunal to dismiss the complaint. HEU says it handled Ms. Redmond’s grievance appropriately and she did not experience any adverse impacts. HEU also says Ms. Redmond has not established that her disabilities were a factor in any of its actions or decisions in the handling of her grievance. HEU’s position is that the complaint is really one of dissatisfaction with union representation, which does not establish discrimination.
[5] For the following reasons, I find that Ms. Redmond has not established that she experienced an adverse impact in union representation. This means she has not established her case, and I dismiss her complaint.
[6] I apologize to the parties for the delay in issuing this decision.
II OVERVIEW
[7] Ms. Redmond was 33 years old at the time of the hearing. She testified that she was diagnosed with ADHD in 2013. In 2017 she suffered a serious brain injury and was in hospital for at least one month, then had assistance from a life skills worker after her discharge.
[8] Ms. Redmond started working at PDCSS in March 2019 in a casual position working about 20 hours per week. As a support worker she helped residents with tasks like grocery shopping, meals, and taking medications, and with activities like social time and crafts. PDCSS was Ms. Redmond’s first job supporting people with disabilities. She believed there was value in her own lived experience with disabilities and was happy that she was physically and mentally able to work in this job to support others.
[9] In September 2019 HEU became the certified bargaining agent for employees of PDCSS. Ms. Redmond became a member of HEU as a result.
[10] PDCSS terminated Ms. Redmond’s employment on April 8, 2020. PDCSS cited several reasons for the termination in a letter to Ms. Redmond, 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.
[11] On April 14, 2020, HEU filed a grievance for Ms. Redmond alleging unjust termination, failure to accommodate, and discrimination based on medical disability.
[12] Morena Miller is a servicing representative at HEU. She was assigned to Ms. Redmond’s grievance. Ms. Miller’s role included assessing the grievance to determine what sort of outcome to try to get for Ms. Redmond, negotiating with PDCSS, and keeping Ms. Redmond in the loop. On April 30, 2020, Ms. Miller wrote a letter to Ms. Redmond setting out her assessment of the grievance [April 30 Letter]. Ms. Miller’s 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. Ms. Miller also said there was no evidence to suggest discrimination, but that Ms. Redmond may provide HEU with any medical documentation that would explain limitations or restrictions related to her misconduct. Ms. Miller concluded her letter by asking Ms. Redmond whether she wanted her job back, and said that if she did not, there was no other remedy to seek and HEU would withdraw the grievance.
[13] Ms. Redmond and Ms. Miller communicated about the grievance by email and phone. Ms. Redmond became concerned that Ms. Miller did not believe her explanations for her conduct at work. Ms. Redmond was also concerned that Ms. Miller did not seem to agree with her that PDCSS had discriminated against her by failing to accommodate her disabilities.
[14] Two things happened on May 12, 2020. First, PDCSS made an offer to Ms. Miller to resolve the grievance by paying Ms. Redmond $2,000, which was about three months of her average earnings, in exchange for withdrawal of the grievance, a confidentiality clause, and a release of future claims.
[15] Second, Ms. Redmond gave Ms. Miller a copy of a letter from her doctor dated May 8, 2020 [May 8 Medical Letter]. The May 8 Medical Letter explains that Ms. Redmond suffered a brain injury in 2017. The letter says that Ms. 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 says it is important to help brain injury survivors to maintain close to a normal quality of life, including maintaining employability with support and mentorship in place.
[16] Ms. Miller’s assessment of the grievance at this stage, after considering the May 8 Medical Letter, was that the grievance was not likely to succeed if it were to proceed to arbitration. Ms. Miller also determined that PDCSS would not agree to reinstate Ms. Redmond to employment as part of a resolution to the grievance. Ms. Miller’s recommendation was that Ms. Redmond accept PDCSS’s settlement offer.
[17] Ms. Miller spoke with Ms. Redmond on the phone on May 13, 2020, and reviewed PDCSS’s settlement offer. Ms. Redmond said she did not want to accept the offer.
[18] On May 28, 2020, Ms. Miller spoke with a representative for PDCSS from its employer association and proposed two alternative options for resolving the grievance – either that PDCSS pay Ms. Redmond the offered $2,000 but remove the release so she may pursue a complaint of discrimination at the Tribunal, or that PDCSS pay Ms. Redmond $10,000 as human rights damages in lieu of reinstatement. The PDCSS representative did not respond to the options during their conversation.
[19] On May 29, 2020, Ms. Miller sent Ms. Redmond two letters. In one letter, Ms. Miller explained that PDCSS offered a settlement stating that they did not intend to reinstate her employment. She recommended to Ms. Redmond that she accept the settlement offer and told her that if she did not agree with this recommendation that she may access HEU’s internal appeal process [May 29 Recommendation Letter].
[20] In the second letter, Ms. Miller set out her explanation for her view that the May 8 Medical Letter did not support a claim of discrimination [May 29 Discrimination Claim Letter].
[21] On June 17, 2020, Ms. Redmond commenced an appeal under HEU’s internal appeal process.
[22] After Ms. Redmond commenced her appeal, around June 22, 2020, PDCSS’s representative contacted Ms. Miller and advised that PDCSS did not want to involve the employer association in the grievance, so Ms. Miller should communicate with PDCSS directly. The representative also said that PDCSS might consider paying more than $2,000 to settle the grievance but would not pay the $10,000 that Ms. Miller had proposed.
[23] Barbara Lemky was HEU’s Director of Membership Services for the interior region at the time relevant to the complaint. Ms. Lemky reviewed Ms. Redmond’s appeal. Ms. Lemky’s assessment was that she agreed with the recommendation to settle the grievance, but she first wanted HEU to further assess whether PDCSS met its duty to inquire into whether Ms. Redmond had a disability that required accommodation. Ms. Lemky determined that the best course of action was to refer the grievance to an industry troubleshooter process, which is an informal process where a third party makes recommendations and assists an employer and union in resolving a grievance.
[24] Ms. Lemky also determined that there had been a breakdown in the relationship between Ms. Redmond and Ms. Miller, and decided to assign Ms. Redmond’s grievance to new servicing representatives, Kim Benke and Becky Jacobson.
[25] Ms. Benke and Ms. Jacobson took the grievance to the industry troubleshooter process. The troubleshooter recommended resolution of the grievance on the same terms that PDCSS had proposed, but with a payment of $4,000 instead of $2,000. Ms. Redmond agreed to HEU’s recommendation to resolve the grievance on these terms.
III ISSUES
[26] This complaint is made under s. 14 of the Code, which says, in part: “A trade union…must not…discriminate against any person or member because of the… physical or mental disability …of that person or member”.
[27] To prove her case, Ms. Redmond must establish that she has a disability or disabilities, she experienced an adverse impact in the course of HEU representing her in her grievance, and her disability was a factor in the adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33; Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 47.
[28] There is no dispute that Ms. Redmond has a brain injury, which is a disability for the purposes of the Code. HEU says Ms. Redmond has not established that she has been diagnosed with ADHD. My decision does not turn on this point, and for the purposes of my decision I assume, without finding, that Ms. Redmond has ADHD and that her ADHD is a disability for the purposes of the Code.
[29] I must decide whether Ms. Redmond experienced adverse impacts as an HEU member in the grievance process in which a disability was a factor. Specifically, I must decide:
a. Did HEU mistreat Ms. Redmond through its conduct and communications, constituting an adverse impact in which her disability was a factor?
b. Did HEU rely on stereotypes about mental disabilities in determining a course of action for her grievance, constituting an adverse impact in which her disability was a factor?
c. Did HEU represent Ms. Redmond to her detriment because of her disabilities, constituting an adverse impact in which a disability was a factor?
[30] For the reasons below, I find Ms. Redmond has not established that she experienced any adverse impact in the course of HEU representing her in her grievance. On this basis, I find that HEU has not breached s. 14 of the Code.
IV EVIDENCE AND CREDIBILITY
[31] I heard this matter over six days. Ms. Redmond gave evidence, and three witnesses, Ms. Miller, Ms. Lemky, and Ms. Benke, testified for HEU. Overall, I find that all of the witnesses did their best to provide an accurate recollection of events within their knowledge, and I find them to be credible. This is not a case of disputed material facts, and there are no instances where I must prefer one witness’s evidence over another’s to make my decision.
[32] Ms. Miller’s credibility is relevant to the extent that I must decide whether or not to accept her evidence about why she made the decisions she did about Ms. Redmond’s grievance. Ms. Redmond submits that Ms. Miller’s evidence contained inconsistencies and self-serving answers, she challenged basic and reasonable assertions, and was not willing to admit wrongdoing.
[33] I am not persuaded that Ms. Miller’s evidence lacks credibility. I explain below that I accept her evidence about why she made the decisions she did in her conduct of Ms. Redmond’s grievance. Overall, I find that she was cooperative, and tried to provide her accurate recollection of events and her decisions. At times she appeared to be frustrated or slightly defensive, but I find this to be consistent with being the subject of discrimination allegations and having to give evidence, which is stressful for most people. I do not expect respondents or witnesses with allegations against them to give evidence with a complete lack of frustration or other emotional response.
[34] I have considered all of the evidence admitted by the parties at the hearing. In my reasons below, I recount only the evidence necessary to make my decision.
V ANALYSIS AND DECISION
A. Establishing discrimination under Section 14 of the Code in the context of a grievance process
[35] Ms. Redmond’s complaint is about decisions that HEU made about her grievance, and how Ms. Miller treated her while representing her in the grievance process. She says she was treated worse than other HEU members would be in a similar situation and that her disabilities were a factor.
[36] In a complaint about union representation in a grievance process, a complainant will not prove a breach of the Code by showing that the union’s representation was ineffective. To prove a breach of s. 14 of the Code a complainant must establish that they were disadvantaged in union membership for a reason connected to their protected characteristics: Byelkova v. British Columbia Nurses’ Union, 2019 BCHRT 119 at para. 57. If a complainant shows that a union agreed to a grievance settlement that was not in the complainant’s best interest, and that the union acted arbitrarily, unfairly, or wrongly in doing so, this does not amount to discrimination. The Tribunal’s role is not to assess the quality or level of union representation, rather, our role is to determine whether any of the union’s conduct constitutes an adverse impact for the purposes of s. 14 of the Code, and if so, whether the complainant’s protected characteristic was a factor in the adverse impact.
[37] Ms. Redmond submits that the issues of discriminatory representation and sub-standard representation are not mutually exclusive, but it is possible to experience sub-standard representation informed by discriminatory reasons. She says she does not seek to hold union representatives to a standard of perfection, and that she is not asking the Tribunal to second-guess HEU’s professional assessment; rather, she alleges that Ms. Miller, in particular, discriminated against her by treating her badly throughout the process and allowing stereotypes about mental disability to influence her decisions about Ms. Redmond’s grievance.
[38] I accept that discrimination may occur alongside sub-standard representation. The onus is on a complainant to establish that they experienced sub-standard representation that constitutes an adverse impact, or that some other treatment or conduct in the course of the process constitutes an adverse impact. The Tribunal does not second-guess a union representative’s decisions or decide whether it agrees or disagrees with those decisions; rather, the Tribunal determines whether any actions or decisions constituted an adverse impact. If a complainant disagrees with a union’s decision this does not necessarily mean that the decision constitutes an adverse impact. A complainant may experience some parts of the process, such as a decision to resolve the grievance in a way that the complainant disagrees with, as negative or difficult without that part of the process being an adverse impact. Treating a complainant harshly in the course of the process, on the other hand, is more likely to be an adverse impact. Stereotyping a complainant, or neglecting to pursue their grievance or making decisions adverse to them based on stereotypes is likely to be an adverse impact.
[39] I must consider whether Ms. Redmond experienced an adverse impact in the context of the inherent difficulty of the grievance process for a union member in her situation. It is clear that she found the grievance process difficult. She was fired from her job, which is an inherently stressful situation. Regardless of whether or not there was merit to her view that PDCSS discriminated against her, she strongly felt that they mistreated her and failed to accommodate her disabilities to give her an opportunity to succeed in the workplace. The issues in her grievance were personal and important to her. She had little control, and no ultimate decision-making power, in a process that required some review and analysis of her personal medical information about her brain injury. Unfortunately, this was all difficult because of the nature of the grievance process.
[40] I turn now to decide whether Ms. Redmond has established that she experienced an adverse impact, which requires more than proving that she experienced ineffective representation or difficulties inherent to the nature of the process.
B. Did Ms. Miller’s manner of communicating with Ms. Redmond constitute an adverse impact?
[41] Ms. Redmond says that Ms. Miller communicated with her in ways that were blaming, hurtful, and rooted in stereotypes, which impacted her dignity and self-worth. Ms. Redmond says the following specific communications constituted an adverse impact on her.
[42] On May 1, 2020, Ms. Redmond wrote to Ms. Miller with a question about the April 30 Letter setting out Ms. Miller’s initial assessment of her grievance:
Hi Morena,
Sorry what does this mean?
“In consideration of the disability you have disclosed to the Union, if there is any medical documentation from your medical practitioner that explains any limitations or restrictions that have not previously been identified and are directly related to the misconduct in the above circumstances, please provide that documentation.”
[43] Ms. Miller replied and said:
Hi Megan
It means exactly what it says. If you believe your medical condition was the cause of your misconduct outlined in the letter, your doctor will need to provide detailed medical documentation to explain why your medical condition contributed to your misconduct at work. That is if you intend to excuse your behavior at work by reason of your medical condition. Otherwise you will be expected to meet the standards of the employer for all staff in the conduct of their duties at work. It is important to know that if your medical condition is the reason for your misconduct, the employer may raise the question of suitability for the job and claim undue hardship if you cannot meet the bona-fide requirements of the job.
[44] Ms. Redmond says that the response “it means exactly what it says” was humiliating and traumatizing.
[45] In another email on May 1, 2020, Ms. Miller told Ms. Redmond that she would ask PDCSS for more time to review her grievance, and told Ms. Redmond that she needed an answer to the question of whether Ms. Redmond wanted her job back. Ms. Miller said that if Ms. Redmond did want her job back, she would proceed to suggest a proposal to PDCSS to reinstate Ms. Redmond to employment with lesser discipline for the misconduct. She said that if Ms. Redmond wanted to pursue a complaint at the Tribunal, then she would ask PDCSS for its agreement to put the grievance on hold. Ms. Miller said:
I have explained everything to you verbally and in writing. I have used plain, clear language. If you need to seek support from somewhere else to understand then you should do so quickly.
[46] Ms. Redmond says this part of Ms. Miller’s email made her feel dumb and embarrassed.
[47] Ms. Redmond also points to some of Ms. Miller’s comments in the May 29 Discrimination Claim Letter, in which Ms. Miller gave Ms. Redmond her assessment of the May 8 Medical Letter. Ms. Miller started the May 29 Discrimination Claim Letter by saying she understood that this level of medical disclosure is not taken lightly, and that she would make every effort to be sensitive to Ms. Redmond’s feelings in her communication. Ms. Miller summarized the information in the May 8 Medical Letter, then explained that her view was that the medical information in the letter would not support Ms. Redmond’s grievance. Ms. Miller said:
This letter from your doctor is certainly thorough and confirms much more details about what exactly are your limitations and restrictions. I do not disagree with the doctor that maintaining employment and living a productive lifestyle is beneficial to your continued recovery. However, this raises the question of whether or not working at PDCSS is the best place to support your continued recovery. PDCSS clients have their own challenges in life. These may bring elements of dealing with stressful situations that have potential to raise triggers for you and may complicate your recovery.
It must be acknowledged that the employer was not aware of these new medical details during your employment. They cannot be faulted for lack of disclosure. You provided limited disclosure in November, however, there was much more to your medical condition that you 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.
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.
[48] Ms. Redmond also says the comments that employees may not withhold medical information and seek to punish the employer, and that accommodation is not a word to use as a “get out of jail free card”, are examples showing hurtful and disrespectful thinking about people with disabilities.
[49] A complainant’s subjective perception of adverse treatment is not always enough to prove that a respondent discriminated against them contrary to the Code: Singh v. A & M Enterprises Ltd., 2023 BCHRT 148 at para. 57. I reviewed the communications between Ms. Redmond and Ms. Miller in their full context to decide whether Ms. Miller’s manner of communicating rises to the level of an adverse impact for the purposes of the Code.I find that Ms. Miller’s communications with Ms. Redmond do not constitute an adverse impact.
[50] I accept Ms. Redmond’s evidence that she felt hurt, embarrassed, and belittled when reading these parts of Ms. Miller’s emails. I appreciate that these emails came to her in the context of a process that dealt with issues that were personal and important to her. However, I must view Ms. Miller’s comments in their full context. Ms. Miller made all of the comments that Ms. Redmond points to in the context of explaining her assessment of Ms. Redmond’s grievance and answering Ms. Redmond’s questions.
[51] The comment “It means exactly what it says” on May 1, 2020, precedes a full explanation of the information Ms. Redmond asked Ms. Miller about. Ms. Miller made her comments that she had explained everything verbally and in writing, and using plain, clear language, in the context of telling Ms. Redmond that she should seek support to understand if needed. Ms. Miller’s evidence, which I accept, is that she read Ms. Redmond’s email with her questions and did not know how else to concisely state that Ms. Redmond should provide any more medical information that she had, and her comment reflects this, but she went on to try to provide more of an explanation to help Ms. Redmond understand. This is consistent with the grievance process and Ms. Miller’s role. In this context, the comment “It means exactly what it says” is direct, and it would be reasonable to perceive it as curt, but is not an adverse impact.
[52] Similarly, Ms. Miller made her statement that she had already explained everything verbally and in writing, in plain, clear language, in the context of telling Ms. Redmond that if she needed more support to understand, she should seek it quickly. Ms. Miller’s evidence, which I accept, is that she had answered Ms. Redmond’s questions to the best of her ability, and did not know how else to communicate with her other than suggesting that someone else help to communicate the information she was trying to convey. Again, this communication is direct and it is reasonable to perceive it as curt, but this is not an adverse impact in the context of the grievance process.
[53] Finally, it is reasonable to perceive Ms. Miller’s comments that employees may not seek to “punish” employers or to use accommodation as a “get out of jail free card” as direct and curt, but in the context of Ms. Miller’s explanation of why Ms. Redmond’s new medical information may not be helpful to her grievance, these comments do not constitute an adverse impact.
[54] I find that Ms. Miller’s manner of communicating to Ms. Redmond was not an adverse impact. On this basis, I find that Ms. Miller’s treatment of Ms. Redmond was not discrimination contrary to the Code .
C. Did HEU rely on stereotypes about mental disabilities in determining a course of action for Ms. Redmond’s grievance?
[55] Ms. Redmond says that in Ms. Miller’s two letters of May 29, 2020, her assessment of Ms. Redmond’s case became more pessimistic. Ms. Redmond submits that Ms. Miller was relying on injurious stereotypes in her assessment. Specifically, Ms. Redmond says it was inappropriate for Ms. Miller to suggest in the May 29 Discrimination Claim Letter that her chosen profession may complicate her recovery and that she was not capable of doing her job when her doctor’s letter did not suggest this. Ms. Redmond says this was hurtful and damaging stereotyping based on her disabilities. She says Ms. Miller’s suggestion that she was seeking to “punish” her employer, and to use accommodation as a “get out of jail free card”, is evidence of further stereotypical thinking about people with mental disabilities. Ms. Redmond says Ms. Miller should have focused on PDCSS’s duty to inquire into whether she was medically fit to work, not her own view of whether or not the job was appropriate for Ms. Redmond. Instead, Ms. Redmond says Ms. Miller cast her as someone who was using her disabilities in bad faith to try to escape legitimate discipline.
[56] I have considered that discrimination based on mental disabilities can occur without any conscious intention and is often subtle. For this reason, the Tribunal can find a breach of the Code where evidence renders an inference of discrimination more probable than the other possible inferences or hypotheses. I also considered that stigma and stereotypes may cause people to profile those with mental disabilities based on preconceived ideas about their character, and to treat them with suspicion: Mai v. Hillcrest Community Center Preschool and another , 2021 BCHRT 65 at paras. 53 to 55.
[57] Ms. Miller gave extensive evidence about how she assessed Ms. Redmond’s grievance, including after she received the May 8 Medical Letter. She explained that she reviewed medical assessments Ms. Redmond had provided to PDCSS. The first is a new applicant medical assessment dated March 29, 2019, which says that a medical assessment of all potential employees is a licencing requirement. On this assessment Ms. Redmond’s doctor said that she was physically and mentally able to perform all duties of the job, and should have support and mentorship to call on should the need arise. The second assessment is written on the same “new applicant” form, but is dated November 6, 2019. It says Ms. Redmond is physically and mentally able to perform the duties of the job, but with provisions. In an attached letter, Ms. Redmond’s doctor says Ms. Redmond needs ongoing mental health care and will be able to function well when all needed supports are in place, but there is no reason she cannot perform the duties of her position in the meantime.
[58] Ms. Miller testified that she did not take from the medical assessments that Ms. Redmond had restrictions or limitations that impacted her ability to do her job, or that any of the misconduct for which she was disciplined was connected to a disability or accommodation issue. This is why Ms. Miller asked Ms. Redmond in her April 30 Letter to provide her with any medical documentation that would explain limitations or restrictions related to her misconduct.
[59] Ms. Miller testified that she did not find the May 8 Medical Letter to be helpful. While the letter said that it was important to Ms. Redmond’s return to normal functioning to maintain “an almost normal quality of life”, including maintaining employment with support and mentorship in place, this letter differed from the 2019 medical assessments in that it did not say that Ms. Redmond was able to perform all of the duties of her position. Instead, the May 8 Medical Letter set out that Ms. Redmond’s clinical consequences of her brain injury included impulsivity, difficulties in self-control, poor self-awareness, and impaired judgement in social situations.
[60] Ms. Miller testified that, rather than being helpful for Ms. Redmond’s grievance, she viewed the May 8 Medical Letter as unhelpful because it contradicted the earlier medical assessments that simply said that Ms. Redmond could do all aspects of her job. Ms. Miller says her view was that the symptoms listed in the letter stood out in the context of her initial goal of trying to get Ms. Redmond her job back, because support workers must make judgement calls, use critical thinking skills to keep clients safe, and be positive social role models for clients. She says she formed the view that it would be difficult to achieve an accommodation for Ms. Redmond’s symptoms in her position. In any case, Ms. Miller testified that by the time she reviewed the May 8 Medical Letter, PDCSS had already decided that it was not interested in a settlement that would give Ms. Redmond her job back. She says she raised the issue of having new medical evidence with PDCSS’s representative, but there was no interest in further discussion.
[61] I accept Ms. Miller’s evidence about her reaction to the May 8 Medical Letter, and her reasons for her approach and decisions related to Ms. Redmond’s grievance. I considered the May 29 Discrimination Claim Letter in the context of all of the evidence. I find there is no basis in the evidence for an inference that any conscious or unconscious negative stereotypical views of mental disabilities influenced Ms. Miller’s decisions related to Ms. Redmond’s grievance. Instead, I find it is more likely than not that Ms. Miller decided how to proceed, including her recommendation to accept PDCSS’s settlement offer, based on information relevant to the merits of the grievance, including the May 8 Medical Letter, and her view that the letter was unlikely to help reach a different outcome.
[62] Ms. Redmond has not established that negative stereotypes about mental disabilities influenced Ms. Miller’s handling of her grievance. On this basis, I find that Ms. Miller did not engage in stereotyping based on mental disability constituting discrimination contrary to the Code.
D. Did HEU represent Ms. Redmond to her detriment, constituting an adverse impact in which a disability was a factor?
[63] Finally, I turn to Ms. Redmond’s allegation that generally, HEU represented her differently, and to her detriment, because of her disabilities.
[64] I find that Ms. Redmond has not established any adverse impact in union representation.
[65] Ms. Redmond submits that she is not asking the Tribunal to determine a standard of care for union representation, or to hold union servicing representatives to a standard of perfection. She says the issue in her complaint is “whether there has been representation with indicators of discrimination”. I have found that Ms. Miller’s treatment of Ms. Redmond was not an adverse impact, and that Ms. Miller did not rely on stereotypes about mental disabilities when handling the grievance. I find that the rest of Ms. Redmond’s allegations are about difficulties inherent to the process, including dissatisfaction with the standard of representation she received, rather than allegations of discrimination.
[66] Ms. Redmond submits that the Tribunal determined in a letter decision dated October 27, 2022, that her complaint does not ask the Tribunal to second-guess the professional assessment of a union servicing representative.
[67] I disagree with Ms. Redmond’s interpretation of this letter decision. In this decision the Tribunal exercised its discretion and denied HEU’s application to file an application to dismiss the complaint under ss. 27(1)(a), (c) and (d)(ii) of the Code. If it had been permitted to file an application to dismiss, HEU intended to argue that the allegations in the complaint fall within the exclusive jurisdiction of the Labour Relations Board, there is no evidence capable of proving Ms. Redmond was adversely impacted in respect of the Union’s services, and the Union had already remedied any possible discrimination by providing a different representative to assist her and resolving her grievance to her satisfaction.
[68] The Tribunal denied HEU’s application because it was based on the same information in HEU’s response and proceeding directly to a hearing would be the most just and timely way to resolve the complaint. That decision was not a final decision on the issue of whether parts of Ms. Redmond’s complaint are about dissatisfaction with HEU’s process and services rather than allegations of discrimination. It does not preclude me from making findings about this issue. I explain my reasons next.
[69] I have found that Ms. Miller’s manner of communicating to Ms. Redmond was not discrimination, and that Ms. Miller did not rely on discriminatory stereotypes in her conduct of the grievance. Aside from these allegations that Ms. Miller mistreated her and relied on stereotypes about mental disabilities, I find that Ms. Redmond’s other allegations are really about the adequacy of the representation she received, disagreement with Ms. Miller’s assessments and decisions, and the inherent difficulties of the grievance process for a union member in her situation.
[70] Ms. Redmond alleges that HEU represented her to her detriment because Ms. Miller did not do a thorough job. For example, Ms. Miller did not request a copy of Ms. Redmond’s personnel file but instead relied on documents she received through the grievance process, and did not open and review all of Ms. Redmond’s emails right away. Ms. Redmond also says Ms. Miller did not put her strongest case forward, and did not agree with her allegation that PDCSS discriminated against her. Ms. Redmond also takes issue with HEU initially advocating to have her returned to her job, then recommending settlement of the grievance after discussions with PDCSS.
[71] Ms. Redmond points to the difference in how Ms. Benke handled her grievance after the internal appeal process compared to how Ms. Miller represented her, and submits that Ms. Miller’s initial representation was substandard. She submits that she was compelled to advocate for herself by engaging HEU’s internal appeal process when she did not wish to follow Ms. Miller’s recommendation to accept PDCSS’s settlement offer, and that under the appeal process Ms. Lemky did not focus on her complaint about how Ms. Miller treated her.
[72] Ms. Redmond has not established that she experienced an adverse impact in the course of her grievance process. The issues she points to, including her disagreement with Ms. Miller’s assessments of her case, her dissatisfaction with Ms. Miller’s efforts, and the necessity of accessing the internal appeal process when she did not wish to accept Ms. Miller’s recommendation, were all parts of the grievance process and are not adverse impacts for the purposes of the Code. Further, an allegation that a union failed to pursue a claim of alleged discrimination against an employer is not an allegation of discrimination, rather, the proper forum for an allegation that a union failed to properly represent a member’s interests is the Labour Relations Board: Badour v. Provincial Health Services Authority and others , 2012 BCHRT 112 at para. 29.
[73] In any case, having found that Ms. Miller did not treat Ms. Redmond harshly or stereotype her based on her disabilities, there is no evidence on which to infer that Ms. Redmond’s disabilities were a factor in the adequacy and level of representation she received, even if I had found the level of representation to be an adverse impact.
[74] On this basis, I find that the level of representation Ms. Redmond received in her grievance process was not discrimination contrary to the Code.
VI CONCLUSION
[75] The complaint is dismissed under s. 37(1) of the Code .
__________________________________
Jessica Derynck
Tribunal Member