City of Vancouver Guilty of Retaliation Against Amployee


City of Vancouver Guilty
British Columbia’s human rights tribunal has found the City of Vancouver and one of its managers guilty of retaliation against an employee, according to a report from Canadian OH&S News.
The ruling from British Columbia Human Rights Tribunal member Enid Marion, issued June 8, notes that Umesh Pathak had been trying for over a decade to become a manager, but he claimed his superior, Ray Stensrud, who retired in 2010, had denied him any opportunities to advance his standing. [Wcx]
Pathak filed a complaint against the city and Stensrud, alleging racial discrimination, and another complaint alleging retaliation for the initial complaint  Marion determined Pathak had not proven the complaint of discrimination under s 13 of the Human Rights Code and dismissed it, but his complaint about retaliation under s 43 of the Code was found to be valid.
Demonstrated Animosity and Disrespect
Apart from some initial positive comments about Mr Pathak, Mr Stensrud demonstrated tangible animosity and disrespect towards Mr Pathak at many points in his evidence. I found his recollection of events to be inconsistent at times and, as noted later in this decision, unreliable on certain points,” Marion wrote.
The city has been ordered to pay $5,000 in damages to Pathak for injuries to dignity, feelings and self-respect, to rescind the suspension of Pathak in November of 2008 and remove the letter of suspension, as well as reimburse him for any lost benefits or wages.
There really are two sides to the ruling, we were satisfied with the finding that the employer had retaliated against Mr Pathak for filing the human rights complaint, but we were disappointed that we weren’t successful on the race, color, ancestry, place of origin side of it,” says Dan Soiseth, the lawyer who represented Pathak in the case.
Pathak, who was born in India and moved to Canada in 1976, had worked for the city since 1999 as a resident attendant at various buildings throughout the city, and has been working full-time since 2004.
Equal Opportunity Employment Program
Pathak went to the province’s Equal Opportunity Employment Program in December of 2007 and filed a human rights complaint against the city and Stensrud around June of 2008, after being overlooked for a promotion. Less than a year later, Pathak was suspended for five days without pay after an altercation regarding his conduct and responsibilities in the workplace.
Marion’s ruling notes that Stensrud said he felt Pathak “could not be trusted to care for the vulnerable persons he had been working with for over a decade.” Pathak filed the retaliation complaint with the tribunal regarding his suspension after he returned to work.
Subjected to Adverse Treatment
Marion concluded that while Pathak was subjected to “adverse treatment” when he was not selected for job promotions, he “considered all the alleged circumstances as a whole and [is] not persuaded that they provide a sufficient factual basis, when considered in context, upon which to infer that Mr Pathak was treated adversely because of his race, color, ancestry or place of origin.”
But, if Pathak had not launched the human rights complaint, he would not have been suspended and would not have been subject to an overly aggressive investigation into his workplace behavior or the “unnecessary, denigrating and disrespectful comments” about his work ethic, Marion states. [Wcx]
I have also considered the humiliation and hurt he experienced as a result of the retaliatory conduct, as well as the tension within his family,” Marion wrote. “I accept that it hurt him deeply, that he continues to be saddened by it and that it affected his sleep for a period of time. I have also considered, however, that he continues to be employed by the City.”
In conclusion, Marion writes, “I am compelled to the conclusion that Mr Stensrud retaliated against Mr Pathak because he had filed a human rights complaint. I also find that the City is liable for this breach of the Code as his employer.”

Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. Contact









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Toronto Public Transit Workers Subject to Random Drug and Alcohol Tests

Public transit workers in Toronto will in the near future be subject to random drug and alcohol testing as the city's transit service was given permission to start testing employees in safety-sensitive positions, according to a report from the Canadian OH&S News.
The Toronto Transit Commission (TTC) was pushing for random testing to be added to the Fitness for Duty policy because the current policy, which came into effect in 2010, has been ineffective at deterring workplace intoxication, says Brad Ross, director of public communications for the TTC. (WCxKit)
The current policy allows for workers in safety-sensitive positions – operators, maintenance staff, supervisors and executives – to be tested for alcohol and marijuana, cocaine, opiates, amphetamines and PCP, using breathalyzers and saliva swabs, when there is a reasonable cause or testing post-incident, post-violation, post-treatment and pre-employment.
Amalgamated Transit Union Local 113, which represents the majority of TTC workers, is already challenging the present policy, and random testing will be added to the grievance, commented Ian Fellows, the union's lawyer in the grievance litigation.
"It's an invasion of our members' privacy. It treats everybody as if they've done something wrong and it requires them to submit to an invasive procedure," says Fellows. "They've got to offer up a sample of their bodily fluid and their DNA. That's contrary to our agreement and we say the [Ontario] Human Rights Code and the Charter of Rights."
While specifics regarding how the program would run have not yet been worked out, Ross notes the TTC would work with a third party to develop a testing protocol and it would be at least a few months before a system would be ready to implement.
"We need to figure out what percentage of employees we'd need to test on an annual basis, but in theory the way it works is you show up for work and the system tells us it's your turn for random testing," he says.
The saliva swabs, as opposed to the traditional urinalysis when testing for drugs, only show whether a person was impaired when the swab was taken based on a pass/fail threshold, not if they had used drugs in the past. The swabs would be tested by an outside lab, Ross says. "We're interested in ensuring that when you report for work, you're fit for duty, not what you did two days ago or two weeks ago, for that matter."
This is not the first time the TTC has tried to introduce random drug and alcohol testing. When it first brought the Fitness for Duty policy to its board of directors in September of 2008, random testing was in the policy, but the board refused to give it the green light. However, the board has changed since the policy was first introduced.
Ross reports that TTC staff felt the random testing policy was needed and would revisit the proposal at a later date. Ross also dismissed a recent incident, where a TTC bus driver was found with marijuana in his possession after a fatal accident, as the reason for trying to reintroduce random testing.
"There have been a number of public incidents over the last couple of years that have been cause for great concern, and there have been incidents within the organization that have not been public but are a concern as well," he says.
The number of incidents involving drugs and alcohol has not decreased since the policy was introduced, Ross added.
Though the TTC has data comparing the number of incidents from 2006 to 2008 and 2008 to present, they are part of the grievance litigation and are not being released to the public. Hearings began in 2011 and are scheduled throughout 2012.
Random testing brings the TTC, with its 1.6-million riders a day, more in line with public transit services in the United States, where random testing of all workers in the transportation sector is the law. "We are the third largest transit agency in North America after New York and Mexico City, and we feel that this element of the policy is necessary," Ross noted. (WCxKit)

Windsor's public transit service is the only one in Canada that has implemented random testing, but only for employees who drive routes that cross into Michigan.

Author Robert Elliott
, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See for more information. Contact:

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