A discrimination complaint filed by a School Distirct 23 staff IT technician against the Central Okanagan Public Schools has been upheld by the BC Human Rights Tribunal.
Michelle Noël alleged that the school district and CUPE, local 3523, had discriminated against her based on mental disability, sex and family status, contrary to the Human Rights Code.
The focal point of the complaint was an admission by Noël, a field service technician in the information technology department and a union member, that she recorded three meetings she had with the school district without their knowledge or consent.
She disclosed the recordings to the school district in her original complaint proceeding.
The school district sought permission to investigate the recordings to determine the scope of any privacy breach and to determine whether Noel engaged in any misconduct, and to impose any appropriate discipline on Noel.
Noel stated she recorded the meetings for the purpose of proving human rights and privacy violations, something she had been attempting to prove over a period of several months to no avail.
She submitted her previous complaints were ignored and the accuracy of her reports were regularly disputed.
In the original ruling back in February, the union took no position while the tribunal dismissed the school district’s application. The tribunal ruling also did not find it necessary to set out all of Noël’s complaint submissions.
The school district then filed application for reconsideration of that ruling, which was opposed by Noël.
In her decision, tribunal member Marlene Tyshynski said the school district failed to “meet its burden of showing that it would be in the interests of fairness and justice” to reconsider the Noël decision.
Tyshynski stated of the school district disagrees with the Noel decision, its remedy is to apply for a judicial review by the B.C. Supreme Court.
“…the Tribunal may only reconsider its decisions in exceptional circumstances. Otherwise, as is frequently noted, the resources of the Tribunal and the parties could be endlessly taken up in re-arguing the same issues which would not, ‘facilitate the expeditious resolution of disputes,” said Tyshynski.
“An application for reconsideration is not a means of achieving a reversal of an unfavourable Tribunal decision because a party is dissatisfied with the outcome.”
Her her decision, Tyshynski also noted Noël’s conduct in making the recordings was not an issue for the tribunal to address.
“This issue in this proceeding is whether the school district discriminated against Ms. Noël in employment contrary to the (Human Rights) Code, not whether Ms. Noël’s conduct in making the recordings is grounds for discipline by the school district,” said Tyshynski.
The tribunal member dismissed a school district submission that her decision “creates a situation where an employee who frankly and forthrightly tells her employer that she has recorded meetings will be subject to a disciplinary investigation, but an employee who conceals that fact from her employer and files a Human Rights Complaint will not be.”
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