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City of Richmond cleared of discrimination in employee COVID-19 protocol case

The city employee was asked to leave the office 'temporarily' after returning from a trip to Hong Kong during the COVID-19 pandemic.
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A City of Richmond worker claimed she was racially discriminated when she tried to return to work at the beginning of the COVID-19 pandemic.

The City of Richmond did not discriminate against an employee by asking her to leave the office temporarily while awaiting instructions on COVID-19 protocols, according to a B.C. Human Rights Tribunal decision.

Winnie Smrekar, a city employee, had filed a human rights complaint claiming she was racially discriminated against by her supervisor, Monique Markham, and the city when she tried to return to work following a trip to Hong Kong in 2020.

She claimed she was asked to leave the workplace "because she had the same ethnic origin as those infected by COVID-19 in Wuhan, China," reads the decision issued on April 25.

The city, on the other hand, denied discrimination and applied to dismiss Smrekar's complaint.

The alleged incident took place on Jan. 28, 2020, one day after Smrekar returned from a trip to Hong Kong, according to the decision.

Markham had met Smrekar in the hallway as she was about to enter the office, asked her how she was feeling, and informed her of concerns about her return to work, according to Smrekar.

"Ms. Smrekar says she told Ms. Markham that she did not visit mainland China, the cases of COVID-19 in Hong Kong were due to travellers arriving from Wuhan, and there was no Health Canada directive to quarantine, nor had she been intercepted at the airport when she returned the day before," wrote B.C. Human Rights Tribunal member Ijeamaka Anika in her decision.

Staff members in the same department, who lived with vulnerable family members, had expressed concern prior to Smrekar's return about working in close proximity with Smrekar due to the spread of COVID-19 from China, according to the decision.

In the days leading up to the incident, the Public Health Agency of Canada had issued a warning for travellers to China; on Jan. 22, Canada implemented a screening protocol for those returning from China. It was unclear whether Hong Kong was included in the advisories.

The first COVID-19 case in B.C. was announced on Jan. 25, 2020.

According to Markham and her manager, they sought direction from occupational health and safety for guidance on health and safety risks and protocols but did not receive a response before Smrekar got back to the office.

As such, Markham's manager advised her to ask Smrekar to leave the office temporarily until she received direction on how to proceed. 

Smrekar then "left the building upset and waited in her car for less than 30 minutes" until Markham told her she could go back in, wrote Anika.

Although Markham apologized to Smrekar the next day and acknowledged the situation "could have been handled better," Smrekar filed a complaint with the city. An external investigator ultimately found Markham did not breach city workplace policies.

Allegation had 'no reasonable prospect of success,' says tribunal

In the decision, Anika sided with the city and dismissed Smreka's complaint.

She found Smreka did not experience an adverse impact within the meaning of the Human Rights Code and her allegation had "no reasonable prospect of success."

The parties did not dispute Smrekar's description of herself as Chinese by race, colour and ancestry with Hong Kong being her place of origin.

However, in the city's application to dismiss Smrekar's complaint, it argued Smrekar did not experience an adverse impact because she was allowed to return to the office less than 30 minutes after she was asked to leave and it had taken Smrekar's complaint "seriously" and resolved it "effectively."

Anika agreed with the city, stating the "subjective impact" of the incident alone was not enough to prove adverse impact and Smrekar was out of the office for less than 30 minutes.

"Both Ms. Markham and the manager apologized to Ms. Smrekar for the inconvenience and Ms. Smrekar does not allege any further adverse impact either when she returned to the office or anytime afterwards," she wrote. 

"On the evidence, the context of the incident could not support the finding of adverse impact that rises to the level of discrimination at a hearing."

While she accepted Smrekar may have felt "particularly vulnerable" at the time due to personal circumstances, the fact that Smrekar found the incident to be "emotionally upsetting and subjectively stressful" was not enough to show a reasonable prospect she would be able to prove adverse impact during a full hearing.

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