Human Rights Tribunal to Hear Complaint Alleging Gym Employee was Terminated Following Sexual Assault by Gym Member

Written on behalf of Arbesman Hamilton LLP

A British Columbia woman who claims she was fired when she took leave from her employment with a gym chain after she was sexually harassed and eventually assaulted by a member at the gym, will have a chance to argue her case before the B.C. Human Rights Tribunal.

The gym tried to dismiss the woman’s claims; however, a July 11, 2017 decision by the Tribunal denied the gym’s request, and laid the groundwork for the woman’s claim to be heard.

Transfer to a new gym and sexual assault

The womam started working for the gym in August 2010. The woman stated that, over the years, she was known as a top-performing employee who loved her work and carried out her duties without issue.

The woman was transferred to a new location in 2015. Shortly after starting work at the new location, the woman claimed that a new member sexually harassed her by making unwelcome comments as well as touching her inappropriately. After she complained to her manager, the woman claimed that her manager told her the member’s membership could be cancelled as a result of his behavior. However, the woman told the manager that she would prefer to keep things professional and would instead simply avoid the member while at work. The member continued to attend at the gym. The Tribunal’s decision does not indicate whether police were contacted following the assault.

The woman claims that in March 2016, the gym member forced his way into her home and sexually assaulted her. She continued to report for work for a few days until she became so shaken, anxious, and fearful that she had to leave and did not return. Her manager authorized her to take leave on March 14. She later obtained a medical note authorizing leave until June 30.

Difficulty Returning to Work

The woman attempted to return to work in early April, but anxiety caused her to either miss or be late on her first two days. When she eventually returned, her manager issued her a “personal improvement plan,” upon the direction of the district manager, who told the Tribunal that the woman had had a number of performance issues prior to the assault. The woman’s direct manager did not agree with that assessment.

On April 14, the district manager met with the woman to discuss, in his terms, “ongoing performance issues.” While the woman had requested the member’s membership not be revoked after the initial harassment occurred, the notion of doing so came up during this meeting. The district manager’s version of the events was that he informed her that since she had not gotten a restraining order against the member following the assault, they would not be able to terminate his membership or place restrictions on his attendance. The woman recalls the district manager saying “I have given it a lot of thought and this whole situation (with the member) is too messy, so we’re going to cut ties. We’re going to let you go.”

The woman filed a human rights complaint, arguing that her termination amounted to discrimination on the basis of sex and mental disability. Despite claiming she was being fired for performance-related issues, the gym offered the woman $15,000 to drop the complaint; an offer she refused.

Employer Seeks to Dismiss Complaint 

In response to the woman’s human rights complaint, the gym argued that it should be dismissed on two grounds.

Firstly, the gym sought to dismiss the complaint on the grounds of there being no reasonable prospect the complaint would succeed. They argued that the decision to fire the woman had been made solely due to performance-related issues and was not in any way related to her protected human rights.

Secondly, the gym argued that their settlement offer of $15,000 had been reasonable, and that the Tribunal could therefore dismiss the claim because the woman had refused to accept it.

The Tribunal ruled that there was a continued dispute as to whether there had been performance issues. Both the woman and her manager maintained that there had been none. Therefore, questions around whether the woman’s sex and mental disability had factored into the gym’s decision to terminate her were central to the complaint.

On the matter of the “reasonable settlement”, the Tribunal ruled the gym’s offer of $15,000 is not necessarily within the range of what the Tribunal might potentially award. The gym had not provided the Tribunal with enough information concerning the woman’s wages, making it impossible to ascertain the true reasonableness of the offer. Additionally, it is possible the Tribunal would award damages for injury to the woman’s dignity, which would result in damages greater than simply those for lost wages. As a result, the Tribunal did not dismiss the complaint, and, instead, ruled that it would hear the case.

We will be sure to follow developments in this case and will cover the Tribunal’s final decision when it is made available.

The lawyers at Arbesman Hamilton LLP represent both employers and employees in employment law matters and workplace disputes. We have seen both sides of employment issues and can provide knowledgeable, experienced legal guidance in all stages of the employment relationship from pre-hiring considerations through to termination disputes. Please contact us online or by phone at 416-481-5604 to book your initial consultation.