Okanagan optometry violated Human Rights Code by firing wife of ex-employee, tribunal rules | iNFOnews | Thompson-Okanagan's News Source

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Okanagan optometry violated Human Rights Code by firing wife of ex-employee, tribunal rules

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The B.C. Human Rights Tribunal has ruled an optometry employee should received more than $70,000 in lost wages after she was wrongfully fired by her employer.

A three-day hearing was held to determine if Grapevine Optical and owner Charles Fellnermayr fired former employee Natasha Martin because of who her husband is, according to a decision released on June 1

Natasha was an employee at Grapevine for eight years before she was terminated on July 10, 2019. That came one month after her husband, Kyle, was terminated on June 9, 2019.

Employers are not allowed to discriminate against employees based on their marital status, according to section 13 of the Human Rights Code. And that’s what happened to Natasha, according to the allegation she made against Grapevine.

But she was actually fired because of how her attitude changed in the months leading up to her firing, the respondents argued.

READ MORE: Kamloops woman overlooked for promotion wins 1st round at Human Rights Tribunal

If Natasha’s marriage to Kyle was found to be “one factor” in her firing then it would have in fact violated the human rights code, the decision reads.

Natasha and her employer both agree they had a “wonderful working relationship” for eight years. They even considered having her take over the business upon Fellnermayr’s eventual retirement.

When her workload picked up in 2016, she suggested hiring her husband to help and Fellnermayr agreed.

The arrangement seems to have worked well until June 10, 2016, when there was a heated exchange between Kyle and Fellnermayr over a sign in a window.

The sign, which had the name of the optometrists on it, was being updated and longtime employee Dr. Michael Kwasnek wanted his name to be listed first on the new one.

When Natasha heard the discussion between Kyle and Fellnermayr, that’s when she learned that another doctor – whose name was listed first on the old sign – was no longer with the clinic.

She was the manager and felt like she should have been kept in the loop about that.

READ MORE: B.C. man loses Human Rights Tribunal case after refusing to wear mask

Fellnermayr didn’t mention it because he thought it was common knowledge the other doctor had moved on.

“This was a tense exchange,” according to the decision.

Natasha ended the exchange by saying, “Just remember Chuck – shit runs downhill,” according to Fellnermayr and Dr. Kwasnek, who is uncomfortable with profanity and was “shocked” by those words.

Natasha denied swearing and said the expression wouldn’t even make sense in that context.

The decision agreed with testimony from Fellnermayr and Dr. Kwasnek that Natasha did swear. But Fellnermayr “later overstate(d) its significance to bolster his explanation for terminating” her.

Later that day Natasha left work a few minutes early. The two parties dispute how early, but Fellnermayr photographed an empty office with a photo of a clock to show that she left early. However he conceded the time on the clock was wrong.

Regardless of the exact time, tensions really flared when the couple left the office.

It began with mild pettiness, when Natasha was ignored after saying bye to Fellnermayr.

Kyle noticed and sarcastically said “awesome Chuck” to Fellnermayr.

READ MORE: For the first time, anti-masker wins minor victory at Human Rights Tribunal

Fellnermayr then followed his employees down the street to start a confrontation with Kyle.

Instead of returning to work, Kyle filed a bullying and harassment complaint with WorkSafe B.C.

Natasha did return to work the next day when she told Fellnermayr that Kyle had quit.

Her tone was “harsh,” according to Dr. Kwasnek, adding that she said was still coming to work only for her paycheque.

From then on, Fellnermayr was “very cold” and “curt” with Natasha, she said.

Fellnermayr claimed the workplace had been toxic ever since March 2019, when staff started gossiping and calling him stupid because of a poor business decision he made. Then in cross examination he admitted that he only learned about the gossip after he sacked Natasha.

Fellnermayr said he would not speak of Kyle’s name and directed the rest of his staff not to either.

READ MORE: Another anti-masker loses Human Rights Tribunal case

Then on June 25, 2019, when WorkSafeB.C. paid the store a visit to follow up on those bullying and harassment claims.

The store was issued a few orders as a result, which included a new health and safety program, a new and young worker training program and a policy regarding bullying and harassment.

Fellnermayr testified that he didn’t realize the inspection and orders were a result of Kyle, and assumed it was a routine procedure. But that testimony was not plausible because other evidence contradicts it, according to the decision.

“I do not know whether Mr. Fellnermayr was deliberately untruthful about this point or whether his testimony was wrong for some other reason,” according to the decision.

However, it’s equally plausible that Fellnermayr didn’t file the WorkSafe paperwork properly and genuinely forgot. If that is the case, it “would be consistent with his general attitude towards some of the legal obligations that come with being an employer – if they are not tasks that he enjoys, he does not prioritize them or, frankly, take them seriously,” according to the decision.

Natasha would return to work from a pre-planned one-week vacation on July 9, 2016. The following day, she was asked to meet Fellnermayr in a private officer where they’ve met hundreds of times before. Natasha “insulted and shocked” Fellnermayr by telling him she no longer felt comfortable being alone in a room with him.

So they went to a coffee shop instead.

While there, Natasha was told her managerial duties were being taken over by Fellnermayr, her signing authority had been revoked and the company credit card in her name had been cancelled.

They argued over the exact words and semantics of the discussion, with Fellnermayr arguing that Natasha had quit.

READ MORE: B.C. Human Rights Tribunal denies City of Kamloops application to dismiss employee complaint

But it doesn’t matter if Fellnermayr completely fired Natasha or not because he stripped her of her most essential duties. 

“Whether he intended it or not, this amounted to the termination of her employment,” says the decision.

“When she accurately perceived what was happening, he made no efforts to reverse or correct what was happening. Instead, he blamed – and continues to blame – her.”

The decision says this testimony of Fellnermayr’s was revealing as to how he viewed his relationship with Natasha:

“I didn’t see how there was gonna be a resolve to this. It could be that you can’t serve two masters. She’s got her husband – it’s almost like the reverse discrimination, was she choosing between Kyle and myself? I don’t know, I can’t say that. But I don’t know – they go home, they talk, they start to plot. I can only speculate that something like that may have occurred. She didn’t want to be there anymore. So I let her go.”

The decision found that Natasha's human rights were violated as a result of the termination.  

“Unfortunately, I find that Mrs. Martin was deprived of that protection and that her marital status was a factor in the termination of her employment,” the decision says.

The decision said Fellnermayr presented other reasons to be upset with Natasha’s performance. He criticized her financial practices, he heard from a sales rep that she called him stupid behind his back, she mentioned profit sharing in front of a new employee, he was mad about the “shit flows downhill” comment, and she left a little early on the day of the shouting match.

“However, I do not accept that these issues amount to a complete explanation for why he suddenly decided to remove all of Mrs. Martin’s managerial responsibilities and terminate her employment,” the decision says.

During the hearing, the respondents spoke about Kyle’s work performance in ways that did not relate “at all” to Natasha. 

“This approach suggests that the Respondents continue to view the Martins as a marital unit, in which each bears some culpability for the actions of the other, rather than as separate and autonomous people.”

Natasha wanted $81,113.62 for lost wages and was awarded $50,836.53. She was awarded a further $20,000 for “injury to her dignity, feelings, and self-respect.”

She was also awarded the full $245.02 for expenses. And $250 for improper conduct by the respondents, although she was seeking $3,000 for that.

The total amount owed to Natasha is $71,081.

To contact a reporter for this story, email Dan Walton or call 250-488-3065 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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