Okanagan firm that paid female electrician less fails to have human rights case thrown out

An Okanagan company has lost an appeal to have a case thrown out after a former electrician took the firm to the BC Human Tribunal saying she was paid less because she's a woman. HVAC company Kimco Controls applied to have former journeyman electrician Jiselle Kirby's case dismissed saying it paid her by her level of skill and eventually laid her off because there wasn't enough work. However, the BC Human Rights Tribunal ruled that Kimco Controls hadn't provided enough evidence to support this and that the matter should go to a hearing where the case could be decided. According to a July 26 BC Human Rights Tribunal decision, Kimco Controls hired Kirby in 2016 and paid her $27 an hour. Her pay increased gradually over the years and in 2019 Kirby relocated from Kelowna to Cranbrook to manage a new branch of the company. The decision said that not long afterward she found out that certain male colleagues were making more money or had been hired at a higher rate. "Ms. Kirby says that when she told one co-worker that she made $32 an hour, he laughed in her face and said she should be earning more," the decision read. "She says this was hurtful and made her feel like 'I had no dignity.'" The decision said Kirby thought of the company owner as "family" and prided herself on her "great attitude" and asked one of the company's owners for a raise. "She says he looked very irritated and said that other workers were lying about their rates," the decision read. READ MORE: Tribunal orders BC police watchdog to pay $52K after it rescinds job offer to female Métis lawyer https://infotel.ca/newsitem/tribunal-orders-bc-police-watchdog-to-pay-52k-after-it-rescinds-job-offer-to-female-metis-lawyer/it105861 The company then emailed Kirby saying it was "frustrated." "Sharing your complaints and concerns about management with other technicians before speaking with management can have a negative effect on the whole team," the manager said in an email. "We are extremely busy and everyone is doing a great job, the last thing we need is to bring down morale." Kirby said she was "very hurt" by the company's response. Months later in early 2020, the firm decided to laid off all but one electrician in Cranbrook and offered Kirby a job back in Kelowna. However, as she'd sold her house in Kelowna and moved to the Kootenays and declined the transfer so was laid off. She then filed the BC Human Rights case against the firm. In the decision, Kimco Controls argued Kirby is a "disgruntled former employee" who filed an "embellished and misleading" complaint to the Tribunal. Kimco Controls argued that her social media posts and evidence on her old company laptop provided evidence of her "true intent." However, the Tribunal pointed out that the company didn't provide any evidence to back this up and its opinion that Kirby had ulterior motives wasn't enough to have the case thrown out. The company also submitted a chart of the wages of three male electricians compared to Kirby's and said there were non-discriminatory reasons for the wage differences. READ MORE: BC man whose job offer nixed over criminal record wins 1st round of human rights case https://infotel.ca/newsitem/bc-man-whose-job-offer-nixed-over-criminal-record-wins-1st-round-of-human-rights-case/it105059 However, the Tribunal picked apart the company's wages chart. "On the face of this chart, Ms. Kirby’s starting wage was lower than Workers A and E and, in 2019, she was paid less than Workers G and E. All the workers were in the same position: Journeyman Electrician," the Tribunal ruled. "There is very little evidence before me to assess similarities and differences in the core duties of each of their jobs." One male electrician, who started three years after Kirby, was being paid $3 an hour more, but the company said that there were cost-of-living increases during those years. However, the Tribunal points out that regardless of the cost of living, the evidence showed the male was hired at a higher base rate than Kirby. The company also said that another worker had more HVAC experience than Kirby hence his higher wage. "However, there is very little evidence about how this translated into greater skills or abilities to perform the work. (The) worker was junior to Ms. Kirby both in respect of his certification and his trades experience," the Tribunal ruled. In the decision, Kirby said work was going well until she raised the wage issue. "After that, she says that Kimco raised performance expectations... and, two months later, told her there was no more work for her in the Kootenays," the decision read. "At the same time, Kimco continued to offer (another electrician) work in the Kootenays. (The electrician) is a male worker with less experience and less seniority." The Tribunal ruled that Kimco had not explained why it chose that worker instead of Kirby. READ MORE: BC transwoman scores minor human rights victory against Ministry of Health https://infotel.ca/newsitem/bc-transwoman-scores-minor-human-rights-victory-against-ministry-of-health/it104791 Ultimately, the Tribunal refused to throw the case out and ruled that it could go to a hearing to decide the matter. The Tribunal also encouraged the two sides to take advantage of its free mediation services. To contact a reporter for this story, email Ben Bulmer mailto:bbulmer@infonews.ca  or call (250) 309-5230 or email the editor mailto:news@infonews.ca . You can also submit photos, videos or news tips to the newsroom mailto:tips@infonews.ca  and be entered to win a monthly prize draw. We welcome your comments and opinions on our stories but play nice. We won't censor or delete comments unless they contain off-topic statements or links, unnecessary vulgarity, false facts, spam or obviously fake profiles. 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