What is the test to be used when determining whether an employer has retaliated against an employee who has filed a human rights complaint? The Alberta Court of Appeal recently pondered this question in the case of Walsh v. Mobil Oil Canada. The court’s discussion of retaliation provides an important reminder to employers to take care when dealing with employees who have filed human rights complaints.

The Facts

Delorie Walsh began working for Mobil Oil Canada in 1984. In August 1991, she filed a human rights complaint against Mobil, alleging gender-based discrimination with respect to her pay and job designations. In March 1993, Ms. Walsh was promoted. Approximately seven months later, Ms. Walsh met with Mobil regarding her human rights complaint. During this meeting, Ms. Walsh was advised to withdraw her complaint. At this time, Mobil first documented significant concerns respecting Ms. Walsh’s performance. Up until that point in time, she had always received at least satisfactory work appraisals.

About one year later, Ms. Walsh was given a three-month plan for improving her performance. On February 21, 1995, the day that Ms. Walsh’s complaint was dismissed, Mobil terminated her employment.4

Ms. Walsh filed a second human rights complaint (Retaliation Complaint) in August 1995, alleging that her dismissal was retaliation for her first complaint. She relied on Section 10 of the Alberta Human Rights, Citizenship and Multiculturalism Act, which provides in part that “No person shall retaliate against a person because that person … has made or attempted to make a complaint under this Act.”

The human rights panel determined that the test under Section 10 requires finding an intention to retaliate. It concluded that this intention was not made out, and therefore dismissed the Retaliation Complaint.

The reviewing judge reversed the panel’s decision with respect to Mobil’s retaliation. The judge concluded that the proper test for assessing retaliation did not require employer intent but rather, the test was whether a reasonable complainant would perceive that his or her dismissal was in part motivated by retaliation. He concluded that Mobil had retaliated against Ms. Walsh.

Mobil appealed the reviewing judge’s decision to the Court of Appeal.

Court of Appeal Decision

Although the Court of Appeal agreed that Mobil had retaliated against Ms. Walsh, it concluded that the reviewing judge had applied the wrong test for retaliation. The court found that, whether proven directly or inferred, intent is a necessary aspect of the test for retaliation. This test is composed of two parts to be determined on a balance of probabilities:

  1. Is there a link between the alleged conduct and the filing of the complaint (or any other action for which retaliation is not permitted)?
  2. Was the alleged conduct, at least in part, a deliberate response by the employer?

In this case, some of the facts that led the court to draw an inference of retaliation included:

  • Ms. Walsh was subjected to extremely aggressive monitoring of work performance.
  • The plan imposed on her was unfair in that she was expected to fulfill extra remedial functions at a time when she was already challenged by extra work.
  • The plan was a moving target, continually revised at her supervisor’s whim.
  • Many of the warnings given by her supervisor were unfair — he did not wait for deadlines to pass before he advised her that she was non-compliant.
  • The timing of events was suspicious.

Interestingly, the court also considered the reviewing judge’s finding that intention could be inferred from the fact that Mobil was a large corporation and either had a legal department or ready access to legal advice, so it would have known that there were no grounds for Walsh’s dismissal. The court concludes that while this analysis could not stand on its own, it did support the finding of retaliation.

Lessons for Employers

While the requirement for intent is good news, employers still need to be cautious. The court makes it clear that this intent can be inferred from all the proven facts and the timing of events. The court also makes it clear that complainants are not required to show malice on the part of the employer.

As a result, employers must be cautious not to run afoul of the retaliation provision in the Human Rights, Citizenship and Multiculturalism Act. This provision continues to apply even in circumstances where the original human rights complaint has been dismissed.

Other lessons that employers can take away from this decision include:

  • Retaliation can include post-complaint conduct, including conduct intended to discourage future complaints, not just acts designed to punish the complainant.
  • Care should be exercised when making human resources decisions concerning a complainant.
  • The onus of proof will be on the employer to demonstrate that retaliation did not occur; careful documentation is key.
  • Inferences can be drawn from the timing of events. For example, if an employee has always had satisfactory performance evaluations and then starts to receive negative ones immediately after filing a human rights complaint, this can lead to an inference of retaliation.
  • If a performance improvement plan is put into place, make sure it is a fair and reasonable one — don’t put in steps that are virtually impossible to measure or attain.
  • Don’t give the employee a deadline for improvement and then dismiss him or her prior to that deadline (unless there are very compelling reasons for doing so).
  • If possible, ensure that the superiors of the complainant who are involved in the complaint do not have input into decisions concerning the complainant’s employment status.