When Sorry Is Not the Hardest Word – Apology And Gift Card Bring Human Rights Complaint To An End
By: Michelle QuinnThe Facts
In Duke v. Sobey’s, 2018 BCHRT 283, Brianne Duke (“Ms. Duke”) filed a human rights complaint against Sobey’s West Inc. (“Sobey’s”) after one of its employees approached Ms. Duke while she was grocery shopping and told her an inappropriate joke referencing sex. She alleged that this behaviour amounted to discrimination on the basis of sex contrary to section 8 of the BC Human Rights Code (the “Code”).
Prior to her complaint to the BC Human Rights Tribunal (the “Tribunal”), Ms. Duke had sent a letter to Sobey’s describing what happened to her at the store and she requested an apology and gift card totalling $250.
Sobey’s promptly conducted an investigation into the incident, and disciplined the employee who acknowledged that the joke was inappropriate. Within less than two weeks of the incident, Sobey’s sent Ms. Duke an email with an apology and offered to provide her with a $250 gift, as she had requested.
The Decision
Sobey’s applied to the Tribunal to have Ms. Duke’s human rights complaint dismissed. The question before the Tribunal Member was whether the actions by Sobey’s were sufficient to remedy the complaint such that it would not further the purposes of the Code to proceed, or did the Code require the Tribunal to take further action.
Sobey’s argued, amongst other things, that its response was “proportionate and reasonable”, and that it would not further the purposes of the Code for Tribunal resources to be taken up with this complaint that had been adequately addressed.
Ms. Duke’s complaint was dismissed. The Tribunal Member concluded that Sobey’s did an immediate investigation, determined that the event occurred, disciplined the employee, and provided Ms. Duke with what she asked for; $250 gift card and an apology:
If you have any questions regarding this decision, please contact either myself or Nicole Mangan
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The Court of Appeal decision of Café La Foret ltd v. Cho, 2023 BCCA 354 is a reminder to all employers that even misconduct such as sexual harassment will not always justify cause for dismissal. Context plays a big role in determining whether an employer has cause for dismissal.
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In Part 1: Duties of Loyalty, Good Faith, Fidelity and Confidence Owed by All Departing Employees, published on March 10, 2023, we highlighted the importance of understanding the duties of loyalty, good faith, fidelity, and confidence that all departing employees (no matter how junior they may be) owe to their former employer. When the departing employee is a senior employee (i.e., an officer of the employer, a member of top management or a key employee), that relationship gives rise to additional fiduciary duties which arise, even if they are not set out in a written employment agreement.
