Employee Free Speech: Not A Licence to Berate Lawyers
A recent decision from the British Columbia Human Rights Tribunal confirms that Canadian tribunals and courts will not permit abusive communications, even when directed at a lawyer. In its ruling in Fairmont Hotel Vancouver (No. 2), BCHRT 53, the Tribunal dismissed a workplace racism complaint after repeated abusive and in appropriate communications.
The applicant worked at the prestigious Fairmont Hotel Vancouver as a cook. According to his complaint, he alleged that a co-worker made racist comments to him at work, including about another colleague. This resulted in a request to work away from the co-worker, which was denied. As a result, the applicant resigned his employment at the hotel.
Within 10 days of leaving his position at the hotel, the applicant filed a human rights complaint, where he alleged that he had been subjected to workplace discrimination at the hotel. As his case progressed, he sent a number of email messages to the company’s legal counsel. These messages included referring to colleagues of the lawyer as “scumbag associates”, and a message which told the lawyer to “Go to hell for defending racism, you dirtbag.”
Counsel for Fairmont proceeded to advise the Tribunal about the troubling communications. The lawyer noted that the approach being taken with the complaint appeared to breach the Tribunal’s Rules, which provide that participants in the complaint process are required to treat others with courtesy and respect. Rather than making a commitment to moderate his conduct, the applicant essentially doubled down, saying that “Defenders of racism deserve to be told the truth”, adding that “defending racism is the low of the low”.
The Tribunal proceed to write to the applicant, noting that his communication had been sent with hostility, and warning that if this continued, his involvement in the case would be limited.
This stern warning from the Tribunal did not result in any change in approach – the applicant continued to send inappropriate and unprofessional messages to Farimont’s counsel. This included threats that he would sue the lawyer personally based on her being a “sell-out defender of racism.”
Fairmont proceeded to file a further application with the Tribunal which sought to dismiss the complaint. This only resulted in a pause in the applicant’s improper conduct – for a limited period of time, he communicated only with the Tribunal. However, his improper emails and disparaging remarks about the company’s outside counsel continued.
In considering the request to dismiss by the former employer, the Tribunal found that the actions of the applicant were improper based on both the manner of his communication, which was at times vulgar and insulting, and the content of his messages. This included repeatedly making serious and unfounded allegations. This occurred even after being clearly advised by the Tribunal that his communications were inappropriate.
The Tribunal concluded that the conduct demonstrated a “flagrant disregard” for the requirement to communicate civilly and professionally. As a result, even though the complaint involved serious allegations of workplace racism, what actually occurred was that Tribunal’s process was being abused in order to personally target the hotel’s management and its lawyer. All of this, said the Tribunal is contrary to the purposes of human rights legislation, the purposes of which include eliminating improper conduct. As a result, the Tribunal dismissed the complaint.
Takeaways for Employers
Workplace disputes are often quite contentious, especially when former employees believe that they were mistreated. This can often result in individual complainants being quite passionate about their case. While the litigation system does have some scope for animated and emotional parties, there is a line which cannot be crossed, and the Tribunal has confirmed the point with this decision. Improper personal attacks on the other parties or their lawyers have no place in a system which is intended to de-escalate matters so that they can be determined on an objective basis. If a party is warned about the need to be civil and professional, there will be consequences for breach, which can be as extreme as dismissing the case in its entirety. Employers need to recognize this, and not be beholden to inappropriate attacks which go beyond mere criticism.