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The Alberta Human Rights Commission has reaffirmed its position, in a review, to dismiss hearing a sexual harassment and wrongful dismissal complaint against Ledcor Management Services, with the tribunal holding that the complainant refused a Ledcor settlement of $63,750.    

“I am satisfied that the complainant refused to accept a settlement proposal that was fair and reasonable. I am therefore exercising my power under section 21(3) of the act and dismissing both (complaints) for refusal to accept a fair and reasonable settlement,” the commission director said in dismissing the complainant.

Commission member Evaristus Oshionebo, in a review requested by complainant Afifa Rathore, upheld the earlier tribunal decision after a fresh review of information in October.  

The commission can refuse to hear cases if it deems there is nothing that can be gained beyond what the company is offering. 

Companies wanting a dismissal must present a settlement that is in line with what the tribunal would have offered the complainant if the tribunal had ruled against the company.   

The Alberta case started when complainant, safety officer Rathore, filed two complaints against Ledcor in 2022. She alleged some of her co-workers made inappropriate comments about her, including whether she slept with men on the first date, was attracted to a co-worker, while a co-worker remarked that he could not see why any man would want the complainant’s company, according to tribunal documents.

In the second complaint, Rathore alleged Ledcor terminated her employment in January 2023 as retaliation for filling the sexual harassment complaint.

Ledcor stated when Rathore reported a case of sexual harassment, it was invested and found the complainant’s allegations “unsubstantiated,” said the commission document.

Ledcor also maintains there was no retaliation and it “terminated the complainant’s employment because she violated workplace policies by yelling, swearing and making offensive comments about her co-workers,” said the tribunal decision, which also stated Ledcor maintains the complainant admitted the workplace violations.  

A co-worker had complained of her behaviour.

The review found Rathore’s case was weakened as WorkSafeBC and its appeal board had both ruled against her when she had filed grievances over being wrongfully dismissed. Rathore had been working in Kitimat, B.C., at the time.

The Workers’ Compensation Tribunal of BC held “the employer terminated (the complainant) for behaving in a manner which violated the employer’s code of conduct and its harassment policies and that no part of the employer’s decision to terminate her employment was because she raised her own concerns about harassment in the workplace.”

The Alberta commission model focuses on resolving disputes before they arrive at a hearing and provides for dismissals when companies have offered fair settlement, while it also participates in mediating cases for resolution with a hearing as a final solution.    

Ledcor offered a settlement with $30,000 in general damages, which was in line with other tribunal settlements, and $33,750 for lost wages.  

Ledcor also agreed to give Rathore a neutral letter of employment.

Rathore acknowledged the lost wages represented the five months she was out of work, but she stated she suffered greater wage losses during and after her termination as she was denied site assignments.  

“The complainant’s argument that she incurred additional losses is misconceived and unsupported by the information,” the review found, adding for a settlement to be reasonable it does not have to include all the remedies the complainant is seeking or the highest award. 

Ledcor also agreed to carry out workplace improvements by reviewing its preventative policy on harassment and violence, distribute posters and wallet cards at worksites and offices providing hotline information for employees who report unethical and disrespectful behaviour. Ledcor undertook to ensure all human resources personnel review the human rights commission’s publications regarding rights and responsibility of employers.

Ledcor’s offer required Rathore to agree to a legal release clause, a non-disclosure clause and also it had a non-admission of liability clause.

“The complainant stated that she refused to accept the offer of settlement partly because the offer contained confidentiality and non-disparagement clauses. In this request for review, the complainant contended that confidentiality and non-disparagement clauses are inappropriate in the context of sexual harassment complaints,” Oshionebo said in his review, but disagreed with Rathore, adding such clauses could stand and do not make a settlement unfair or unreasonable.   

In Alberta, when the commission dismisses a case, the file is then closed.

Employment law firm Bennett Jones, blogging on refused settlements, said: “Such dismissal does not require the respondent to pay the offered amount.”

Each provincial human rights tribunal operates under its own model. 

B.C. also provides for its tribunal to dismiss cases where a fair settlement has been refused. However, once a dismissal has been entered, the complainant can still accept the settlement, which is kept open for set period.