Bullying in the workplace

Introduction

There is zero tolerance for workplace bullying and harassment in current occupational environments. This requires employers to act mindfully. There is often limited evidence and conflicting stories between interested parties.

As such, retaining an outside investigator or mediator is helpful. Workplace investigators and mediators offer the impartial and thorough assessment that is necessary to navigate situations that typically involve assessing credibility and, potentially, human rights issues.

Examples of Assessing Credibility Considered by Arbitrators, Mediators and Workplace Investigators

According to the leading case of Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), credibility is not to be based solely on a person’s demeanor or appearance of sincerity. Rather, their account must be assessed to see whether a practical and informed person would readily recognize it as reasonable and probable in the circumstances, saying:

“Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.”

In Weldwood of Canada Ltd. (Merrill & Wagner Division) v. International Woodworkers of America, Local 1-425 (Doverspike Grievance), [1983] B.C.C.A.A.A. No. 70, a union sought reinstatement of a grievor who was dismissed as a result of an alleged theft of company property. Considering the circumstantial evidence, the arbitrator found the grievor to have provided contradictory and inconsistent accounts that were beyond belief. Thus, the grievor was found to have committed the theft. The arbitrator commented:

“An inexperienced and nervous witness can give an appearance of untruthfulness and yet be totally honest in his evidence. A practiced and experienced witness can warp the truth and yet maintain an aura of credibility. The safest course is to decide issues on the basis of probability as assessed from all of the evidence, not on the credibility of witnesses. Obviously, findings of credibility may be a necessary step in finding the facts but preferring one version of disputed facts over another is not necessarily a process of believing or disbelieving particular witnesses. It can be, and frequently is, a process of examining a dispute in the totality of the evidence and finding one version more probable or likely than another.”

More recent B.C. decisions continue to apply the above principles. In Bradshaw v. Stenner, [2010] B.C.J. No. 1953, the Court reviewed the assessment of credibility and explained:

“Assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally…”

Human Rights Issues as Dealt with by Arbitrators, Mediators, and Workplace Investigators

Bullying complaints are often addressed by human rights tribunals. In Jubran v. Board of Trustees, 2002 BCHRT 10 (CanLII), a previous student had been bullied by other students at his school who perceived him to be gay. In assessing his complaint against the school board, the tribunal considered the actions taken by the school board employees in reaction to the student’s complaints. The tribunal determined that the employees were diligent in investigating the complaints of bullying and, although their efforts were not entirely successful in curtailing the bullying, there was no evidence that the school board employees had acted maliciously, recklessly, or wilfully. However, the tribunal awarded the student $4,000 as compensation for injury to his dignity, feelings and self-respect (under s. 37(2)(d)(iii) of the Human Rights Code, R.S.B.C. 1996, c. 210).

Executive Summary

Credibility assessments are nuanced and involve not only perceived sincerity and outward appearance, but also consideration of a person’s certainty of recollections and resistance to modify their account during examination. Similarly, human rights issues involve a nuanced approach that takes into consideration the whole context of a situation.

Conclusion

Given the subtlety, impartiality, and nuance involved in navigating complaints of bullying, the services of an arbitrator, mediator or workplace investigator can be indispensable. Neil Hain serves in all three of these respective capacities, and can provide assistance dealing with bullying issues in the workplace. Please contact us for discussion or consultation.