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Sometimes An Apology Is Sufficient

Columns like this one, which highlight large awards of damages in employment cases, might leave the impression that money is the only way to solve workplace disputes. Now and then, a decision comes along which demonstrates that an old fashioned apology may be sufficient.
 
According to a recent B.C. Supreme Court decision, Ismaeil Karbalaeiali worked as a tour bus driver and tour coordinator for the Vancouver Trolley Company. He was a valued employee and his relationship with his employer was good although he did have ongoing interpersonal problems with its operations manager.
 
In early 2008, Karbalaeiali saw a picture on the employees’ “humour board” which depicted a person’s buttock with a satellite map of the world imposed upon it. The Middle East was situated generally in the area of the anus and the caption read, “No wonder the Middle East is in deep shit”.
 
Karbalaeiali is an immigrant from Iran and was the only employee at this workplace from the Middle East. He found the picture to be very offensive and confronted the operations manager about it. He claimed the operations manager was reluctant to take the picture down.
 
Karbalaeiali learned that the operations manager had posted the picture. He claimed that the picture had remained posted on the humour board for over three weeks.
 
Karbalaeiali filed a complaint with the B.C. Human Rights Tribunal pursuant to the Human Rights Code. The Tribunal initially accepted his complaint for adjudication on the prohibited ground of “place of origin”.
 
The employer later applied to have Karbalaeiali’s complaint dismissed on the ground that proceeding with the complaint would not further the purposes of the Code.
 
The employer’s evidence (which the Tribunal appeared to accept) was that, when Karbalaeiali expressed that he found the picture offensive, it was removed and an apology was given by the operations manager. The operations manager stated that it had not occurred to her that it was offensive, that she did not intend it as a personal attack or in ridicule of Karbalaeiali’s place of origin, and that she had personally written him a sincere letter of apology.
 
When the Tribunal reviewed the evidence, it concluded that, “In response to Mr. Karbalaeiali’s complaint that he found a “joke” … very offensive, the respondents removed the Picture, the Company president met with Mr. Karbalaeiali to address his concerns, and the perpetrator immediately and sincerely apologized.”
 
The Tribunal went on to state that, “The purposes of the Code are remedial, not punitive…” and “… the respondents’ response has been appropriate and adequate to the allegation of discrimination raised in this complaint. In these circumstances, proceeding to a hearing has little to offer in terms of achieving the purposes of the Code …”. 
 
The Tribunal dismissed Karbalaeiali’s complaint. Recently, in response to Karbalaeiali’s application for judicial review, B.C.’s Supreme Court upheld that result.
 
The key to this outcome was, without a doubt, the employer’s swift action to remove the offensive item and to provide a sincere apology to the employee for its impact upon him. It goes to show that there can be a lot of value in owning up to the occurrence of inappropriate workplace behaviour and taking early steps to address its impact on the offended employee.
 
Robert Smithson is a lawyer in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, or to view past “Legal Ease” columns, log onto www.pushormitchell.com.