Harassment In The Workplace – Employers, Don’t Wait Investigate
By: Michelle QuinnEmployers often seek our advice regarding allegations of harassment in the workplace. For most employers and business owners, handling and managing these complex issues can be quite daunting. It can be challenging for an employer to determine the veracity of a harassment complaint. Appropriately responding to the employee complaint and conducting an investigation can limit potential employer liability. In this post, we explain the importance of conducting an effective workplace investigation when allegations of harassment arise at work.
DO YOU HAVE WRITTEN POLICIES IN PLACE?
Employers must have policies in place to respond to harassment (including sexual harassment) in the workplace.
WorksafeBC requires all BC employers to have a written policy to prevent bullying and harassment in the workplace. WorksafeBC’s Occupational Health and Safety Regulation Guidelines define bullying and harassment as:
Examples of conduct or comments that might constitute bullying and harassment include verbal aggression or insults, calling someone derogatory names, harmful hazing or initiation practices, vandalizing personal belongings, and spreading malicious rumours.
WHY INVESTIGATE?
An employer has a legal obligation to investigate a complaint of harassment in the workplace context. As soon as an employer becomes aware of an allegation of harassment (or discrimination), a duty to investigate is triggered. The first step is to consult and follow the complaints procedure and investigation process set out in written policies. It is an employer’s duty to provide employees with a safe, respectful workplace.
WHO SHOULD CONDUCT THE INVESTIGATION?
The answer to this specific question will depend upon the specific situation and facts at hand, including: the parties to the complaint; the particulars and complexity of the complaint; the procedures prescribed by applicable policies and the resources available. In certain situations, engaging an outside investigator may be the safest option.
Ensuring you have the right person conducting the workplace investigation is crucial. Here are some points to consider:
- the benefits of retaining counsel other than the employer’s usual counsel. Whoever conducts the investigation may likely get called as a witness in subsequent legal proceedings;
- the person should remain objective and impartial;
- the person should also have the appropriate training to conduct an investigation; and
- the person conducting the investigation should have an understanding of relevant law and policy including the BC Human Rights Code, Workers Compensation Act, regulations and policies.
The substance of the complaint will dictate the type of investigation that is appropriate. If the issue is relatively minor, then one or two meetings to address the issue may suffice.
A flawed investigation of alleged employee misconduct can in certain circumstances result in a significant damages award against an employer.
THE WRONG INVESTIGATOR – EMPLOYER’S LIABILITY
The BC decision of Vernon v. British Columbia (Ministry of Housing and Social Development) (Liquor Distribution Branch), 2012 BCSC 133 demonstrates the risks an employer runs when an investigation is conducted by the wrong person. In this case, Ms. Vernon (the plaintiff) sued her employer for wrongful dismissal. She had 30 years of service, many as a senior manager of liquor stores in BC before she was terminated for cause. The dismissal occurred in response to a complaint by an employee who alleged that a series of bullying and offensive comments had been directed at her by Ms. Vernon.
The investigating labour relations advisor had counselled Ms. Vernon in regard to employment situations. Ms. Vernon had confided in the advisor and looked to her for assistance in dealing with employment issues.
The Court found that the investigation was flawed from beginning to end. It was neither objective nor fair. Justice Goepel called the interviews “interrogations that were not carried out in an impartial manner”. The Court also found that witnesses who spoke out in favour of Ms. Vernon were accused of lying.
The employer’s reliance upon a flawed investigation resulted in significant liability.
If you have any questions regarding conducting workplace investigations, or if you are looking to hire an investigator, please contact either myself or Georg Reuter.
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Parmar v. Tribe Management Inc., 2022 BCSC 1675 is the first civil court decision to tackle whether an unpaid leave of absence for noncompliance with an employer’s mandatory vaccination policy can be considered constructive dismissal. The issue before the Court was whether Tribe Management Inc.’s decision to place Ms. Parmar on an unpaid leave of absence was reasonable following the implementation of a mandatory vaccination policy given the circumstances of the COVID-19 pandemic at the time. Ms. Parmar refused to be vaccinated due to choice. She did not apply to her employer to be exempt from the mandatory vaccination policy based on medical or religious reasons. The BC Supreme Court found that it was not a constructive dismissal. Instead, it found that Ms. Parmar had repudiated the employment contract. As a result, the claim was dismissed, and Ms. Parmar was not entitled to any damages.
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The recent BC Supreme Court decision of Okano v. Cathay Pacific Airways Limited, 2022 BCSC 881, is a reminder to terminated employees that they must take reasonable steps to find new employment. In this decision, the judge found that the terminated employee, Frances Okano, who had been with her employer for almost thirty-five years, did not take reasonable steps to secure a new job, and held that a reduction in the period of notice of three months was warranted for failing to mitigate.
