The recent case of Rey v. Milestones Grill + Bar, 2018 BCHRT 57 has garnered considerable media attention due to the unusual circumstances leading up to the dismissal of Guillame Rey, a server at a Milestones restaurant in Vancouver, who claims discrimination towards his French culture was behind his firing. The B.C. Human Rights Tribunal has denied the restaurant’s application for dismissal and is sending the case to a full hearing.

"Aggressive" or just part of the culture? A question of perception

Guillame Rey began working as a server for one of the Milestones restaurants in Vancouver in 2015. He was dismissed, according to his former employer, because “his behaviour violated its Respect in the Workplace Policy.” Rey defined the grounds for discrimination in a different manner: he alleged he was terminated from his employment “because of a perception that his French culture made him aggressive.” In an email to the employer’s human resource department, he said the accusations against him were discrimination against his culture, which, in his words “tends to be more direct and expressive.”

Milestones has a “Respect in the Workplace Policy” and required Rey to sign it upon hiring. He also signed a letter acknowledging that “intentionally speaking to a Guest or Associate in a rude or unfriendly manner” was grounds for dismissal. Prior to the incident that lead to his termination, Rey had been warned that his behaviour was “aggressive and unacceptable.” Rey’s employment was terminated on the ground that he was “aggressive, rude and disrespectful” following an incident in the workplace involving a co-worker and management.

For his part, Rey denied acting aggressively and took the position that he had been fired for his “direct, honest and professional personality.” Of note, management had told him on more than one occasion that “it might be because of my culture that other staff members think I am being aggressive.”

A reasonable prospect of success

Rey filed a human rights complaint, on the basis that he was terminated for reasons related to discrimination on the basis of his culture, contrary to s. 13 (1) of British Columbia’s Human Rights Code (the “Code”). The employer applied to the Tribunal asking it to dismiss the case on the basis that it had no reasonable basis of success, but their application was dismissed. The decision of the tribunal is not a determination on the merits of the claim. Rather, it was an application for dismissal on the basis that the complaint had no reasonable prospect of success, pursuant to s. 27(1)(c) of the Code. While the claim for discrimination on the basis of Rey’s French culture was not proven, it is notable that the case was permitted to proceed to a hearing on the merits.

The test under s. 27(1)(c) of the Code is whether the complaint has no reasonable prospect of success. In denying Milestone’s application and allowing the complaint to proceed to a hearing, the tribunal found that there was “at least some evidence supporting an inference that Mr. Rey’s ancestry was a factor in the termination”, and therefore allowed the complaint to proceed.

Unanswered questions

The decision does not determine whether French culture is in fact “more aggressive,” or whether the French culture is related to Rey’s conduct or how his conduct was perceived – it leaves these issues to be decided at a later date. It also does not make any findings about whether cause for dismissal existed. Rey’s argument as it relates to his French heritage appears to have been primarily based on the perception of his French heritage as being aggressive. However at the time of termination, he argued that his culture was, in fact more “direct and expressive.” The difference between the two positions is not discussed in the decision. It is, however, an important distinction. If the problem is only one of how his conduct is perceived by others, rather than how Rey was actually conducting himself, then perhaps the question is only one of tolerance on the part of coworkers and management.

However, if an employee’s conduct is in fact so “direct and expressive” so as to violate a respectful workplace policy, or possibly in this case, to reduce a coworker to tears, then the problem is more complex. Clearly, the rights of other employees and management to a respectful workplace are important. One of the typical aims of respectful workplace policies is to protect employees from discrimination. Future decisions expressly considering grounds for discrimination of this nature may need to balance competing rights, complicating matters further.

The question of whether compliance with the employer’s Respect in the Workplace Policy was a bona fide occupational requirement was not discussed in the decision. This will have been based partly on the limited nature of this particular decision – there was no finding of fact that there was a breach of the policy. It is also perhaps partly because Rey’s complaint of discrimination was based on the perception of his French culture, as opposed to his conduct itself. However, whether the requirement to comply with the policy is a bona fide occupational requirement such that an employer can nevertheless lawfully require compliance by its employees is a question left for another day.

In the meantime, Milestones continues to be put to the task of defending the claim against it. If the complaint proceeds to a full hearing, the decision will deal with these issues more fulsomely and with more specificity.