Okanagon College v Okanagan College Faculty Assn (Fu Grievance)  BCCAAA No. 255.
Is a professor who has been unfairly terminated because of mental disability entitled to damages under the Human Rights Code?
The facts of this case are identical to those of Okanagon College v. Okanagan College Faculty Assn (2007). In that case, the Union, relying on the Fidler (2006) analysis, argued that Dr. Fu was entitled to damages for mental stress caused by employer’s actions. The Arbitrator found that the Fidler analysis was not relevant because, according to Dr.Fu’s doctor’s notes, there was no correlation between the deterioration of the working relationship and deterioration of his mental health, which appeared to improve over time.
The arbitrator did state however that Dr. Fu may be entitled to damages to dignity under the Human Rights code. This case deals with the Union’s claim for such damages.
The College argues that there was no finding of “injury to dignity” related to discriminatory conduct. As such, the College is not obliged to pay damages.
- Did Dr. Fu suffer an injury to his dignity, feelings and/or self respect?
- If yes, was this injury related to discriminatory actions of the employer?
- Was the injury suffered “reasonably foreseeable”?
- The arbitrator pointed to the facts outlined in the 2007 case that establish “that he suffered actual injury to his dignity, feelings and self respect”. This is the paragraph he cited: “Dr. Fu was asked in direct examination about the effect the termination had on him and his family. He answered that he had been “kept in uncertainty” during the one year extension, and that the period from April to July 2006 (i,e, between the second summative evaluation and his termination) was “a terrible time for us to wait for the result”. Dr. Fu said his most serious concern was that the College’s decision would bring back his severe depression and the “hell” he had experienced. Additionally, his family had a difficult time with his wife “crying all the time” and his three children “never seeing a smile from their parents” Dr.Fu said he and his wife were fortunate to have support from their families but explained how “all our relatives suffered”.
- The arbitrator found that this injury occurred when the employer terminated the employee using the results of a “fundamentally flawed summative evaluation” and the “discriminatory conditions in the MOA”
- The arbitrator said it was.
The Arbitrator ordered the College to pay Dr. Fu $3500 in damages. It based its decision in the Morris decision , in which the victim was paid $5000 in damages for a similar injury but whose circumstances were different/worse (As compared to Morris, Fu had a much shorter service record and as compared to Morris’ employer