BC Human Rights Tribunal Dismisses Worker’s Complaints in Workplace Investigations Case

BY NEIL HAIN

Introduction:

The BC Human Rights Tribunal recently dismissed a worker’s complaints of sex discrimination and the employer’s handling of the matter in a workplace investigations case. While the tribunal allowed the complaint regarding accommodation of the worker’s mental disability to proceed, most of the worker’s claims were found to have no reasonable prospect of success. This case highlights the importance of having a thorough workplace investigation carried out. If your organization needs assistance with workplace investigations, contact Neil Hain Dispute Resolution for expert guidance and support.

The Case:

The worker, employed as a crisis intervention worker for the City of North Vancouver, raised concerns about a colleague’s alleged sexual harassment and threatening behaviour. See Human Rights Code, RSBC 1996, c 210 (the Code) at s. 13(1)(b). “The Respondents’ conduct had an adverse impact on her, and her protected characteristic was a factor in the adverse impact” See Moore v. British Columbia (Education), 2012 SCC 61 [Moore] at para. 33. However, the tribunal concluded that there was insufficient evidence to establish sexual discrimination based on the worker’s gender. Malagoli v. City of North Vancouver and another, 2023 BCHRT 42 (CanLII) (Malagoli) at para. 67. The tribunal dismissed the Alleged Threat allegation under s. 27(1)(b) of the Code. See Malagoli at para. 67.

Nevertheless, the complaint related to the employer’s accommodation of the worker’s mental disability was allowed to proceed. See Malagoli at para. 170 and s. 27(1)(c) of the Code that allows the Tribunal to determine whether a complaint warrants the time and expense of a full hearing. See Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at paras. 22, 26-27.

Workplace Investigations and Findings:

An internal investigation conducted by an HR advisor addressed the worker’s complaint, acknowledging the interpersonal conflict but finding no evidence of bullying or harassment. Malagoli at para. 142. Subsequently, an independent investigator hired by the city deemed the colleague’s concerns reasonable, leading to no formal complaint being filed. See Malagoli at para. 109,110. This led to the tribunal dismissing the worker’s complaints concerning the colleague’s conduct and the city’s investigation, as well as the retaliation complaint, as having no reasonable prospect of success. See Malagoli at para. 332,333.

Importance of Thorough Workplace Investigations:

Employers must prioritize comprehensive workplace investigations to mitigate potential safety and human rights complaints. Thorough investigations help ensure the protection of employees’ rights and minimize legal risks for organizations. If your company requires professional assistance with workplace investigations, rely on Neil Hain Dispute Resolution’s expertise.

Contact Neil Hain Dispute Resolution:

For any workplace investigation needs, Neil Hain Dispute Resolution offers professional services to help your organization handle complex workplace issues effectively. Contact Neil Hain Dispute Resolution today to receive expert guidance and support in conducting fair and thorough workplace investigations.

Conclusion:

While the BC Human Rights Tribunal dismissed most of the worker’s complaints in this workplace investigations case, it allowed the complaint regarding accommodation to proceed. Employers should learn from this case and prioritize thorough workplace investigations to address conflicts and protect employee rights. For expert assistance in conducting workplace investigations, contact Neil Hain Dispute Resolution for reliable and comprehensive support.

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Unveiling Racism and Toxicity Allegations in the Making of “Lost” Series: A Canadian Labour Law Perspective

BY NEIL HAIN

Introduction

The recent allegations of racism and toxicity surrounding the hit series “Lost” and its showrunners, Damon Lindelof and Carlton Cuse, serve as an opportunity to examine workplace misconduct within the framework of Canadian labour law (legal implications and obligations). This article will summarize the allegations through the lens of workplace investigation in relation to HR professionals and how the allegations align with Canadian legislation and guidelines. And it will highlight the importance to HR professionals of creating inclusive and respectful work environments in accordance with the law.

The Duty to Provide a Safe and Respectful Workplace

Under Canadian labour law, employers have a legal obligation to maintain a safe and healthy work environment free from harassment, discrimination, and toxic behaviour. See Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 at para 22 and T.M. v Manitoba (Justice), 2019 MBHR 13 (CanLII) at para 3. This duty extends to protecting employees from racial discrimination, see A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 (CanLII), para 10, and fostering a workplace culture that values diversity and inclusion. The allegations raised by individuals involved in “Lost” bring attention to potential breaches of this duty, as they describe a toxic work environment where racial stereotypes were perpetuated, and actors of colour were allegedly marginalized.

Discrimination and Harassment Provisions

The Canadian Human Rights Act and various provincial human rights codes protect individuals from discrimination and harassment based on race, ethnicity, or any other protected ground. If the allegations of racism and unequal treatment in the “Lost” writers’ room are substantiated, they could potentially constitute a violation of these provisions. See Canadian Human Rights Act, RSC 1985, c H-6 (CHRA) and (Ontario) Human Rights Code, RSO 1990, c H.19.

Under provincial occupational health and safety legislation, harassment is considered a workplace hazard. See Alberta Occupational Health and Safety Act, SA 2020, c O-2.2 (OHSA), which is enforced by the Alberta Occupational Health and Safety Code, Part 27 Violence and Harassment, Hazard Assessment, s389.

Statute of limitations?

HR professionals must be aware of their legal responsibilities to prevent, address, and remediate such incidents, including conducting thorough workplace investigations and implementing appropriate measures to ensure a discrimination-free workplace.

Employment Equity Obligations

Canadian employers are also subject to employment equity obligations, which aim to promote equal opportunities and eliminate systemic barriers faced by designated groups, including racial minorities. See Employment Equity Act, SC 1995, c 44 (EEA) at s. 2 and each provinces’ Human Rights Code. These obligations require employers to take proactive measures to address imbalances in representation and opportunities within the workforce. See CHRA and related provincial human rights codes. The allegations of unequal treatment and limited characterization for characters of colour in “Lost” highlight potential concerns regarding the fulfillment of these obligations.

Creating an Inclusive and Respectful Workplace

In response to the “Lost” allegations, HR professionals must prioritize proactive measures, such as workplace investigations, to foster an inclusive and respectful work environment. This includes implementing comprehensive anti-discrimination and harassment policies, providing training to employees on diversity and inclusion, and promoting a culture of openness and accountability. See CHRA, EEA, OHSA, and various provincial human rights codes. Regular monitoring and assessment of workplace dynamics can help identify and address any potential issues before they escalate.

Conclusion

The allegations of racism and toxicity surrounding the production of “Lost” underscore the need for employers to be vigilant in upholding their legal obligations under Canadian labour law. HR professionals play a crucial role in fostering inclusive and respectful workplaces, ensuring compliance with anti-discrimination and harassment provisions, and promoting employment equity. By addressing these issues within the framework of Canadian labour law, organizations can work towards creating environments that celebrate diversity, uphold employee rights, and prioritize the well-being of all individuals.

For guidance on addressing allegations of discrimination or harassment, please reach out to Neil Hain for a consultation tailored to your specific situation.

Neil offers workplace investigation services, which provide impartial fact-finding and reporting to enable employers to take the appropriate actions based on the findings.

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Disrespect, Bullying and Harassment in the Workplace

BY NEIL HAIN

The places we work define a substantial part of our lives, and of our day-to-day wellbeing. After a year of lockdown, where a ‘workplace’ is starting to resemble a loosely held digital network, business leaders are required more than ever to consider the mental wellbeing of employees. Even where the legislative framework is well understood and reflected in a set of clear and enforceable company policies, grievances arise, and it takes a special and subtle understanding of how to navigate these challenges to ensure a rapid resolution is found.

One doesn’t need to look far in global media headlines to realize the importance of thorough and sound policies and practices around bullying and harassment in the workplace, and also of workplace investigations. Taking the example of the Scottish government, now in a state of disarray not only over allegations of harassment, but more so over the poor handling of the vital processes which should follow such allegations, it is easy to see how far reaching the effects can be for individuals, as well as organizations. Closer to home, the well-known example of Disotell v Kraft Canada Inc 2011 shows how easy it is to conduct inadequate workplace investigations, significantly exacerbating the damages, as well as the harm to victims and fellow employees. Another example is Sultz v. Attorney General et. al. a case where a supervisor’s breach of the employer’s harassment policy resulted in damages of $950,000 being awarded.

Bullying and harassment in the workplace can have immense repercussions on mental health, as well as professional progression of victims. In technical roles, the distraction posed can even lead directly to harm or injury. In BC, Bullying and Harassment is defined to include any inappropriate conduct or comment by a person towards a worker, where the person could reasonably have anticipated that this would cause the worker to be humiliated or intimidated. However, it excludes ‘reasonable action’ by the employer to manage and direct workplace activities. When exploring these cases retrospectively, with differences in individual value systems, and interpersonal relationship styles, having an expert on board, from Neil Hain Dispute Resolution, to mitigate against subjectivity, and to ensure clear interpretations of the law can assist immensely in ensuring that the investigations are thorough, and clear.

Bullying and Harassment includes a range of online and in-person mistreatment. Included in the list of identifiable acts are verbal aggression either in person or online, spreading rumours or gossip, sabotaging work, harmful or offensive initiation practices, targeted social isolation, aggressive gestures and physical assault. With workplaces moving increasingly online, there is a new need to understand when and how workplace bullying and harassment can take place.

In British Columbia, companies have a statutory obligation to protect and preserve certain rights in the workplace, and to ensure that that hazardous conditions, including maltreatment by other employees, are prevented, and remediated as effectively as possible. The Workers Compensation Act outlines a range of mandated procedures and actions to be taken by a firm such as ensuring that the right insurance policies are in place, and that compensation plans and structures are documented. It outlines the process of employees making claims, or complaints, both of which can lead to investigations, orders and fines. More fundamental than this, however, are strategies for prevention. This includes the provision of training and information around key policies which companies are required to have in place; defining bullying and harassment, and the companies intended remediation processes should a case ever arise. This is a lot to have in place, and it can be complicated, ensuring a watertight articulation of a response to the unknown. Policies need to rise with the circumstances, to meet the times, and to form that channel through which communication can flow.

Workplaces are built on trust and communication. Sound, specialist direction will position your company on a path to success; with secure and content employees able to focus on their task, safe in the knowledge that they are protected.  Above all, we at Neil Hain Dispute Resolution are problem solvers, with a long track record of solving these types of workplace challenges.

Getting professional support from industry experts can help to provide the best practice bare-bones around which to draft your company specific policies and prevention strategies. One such area is in properly clarifying and conducting workplace investigations. These policies and processes not only need to be in place, but require annual review, and there are issues of ongoing monitoring and enforcement. Accurate and efficient policy implementation in any context is substantially dependent on the quality and specificity of the policy to suit the task – and this where the art really is in the detail. Organizational harmony, just as in any community relies on the strength of the institutional pillars which ensure that people feel secure and can build trust.

Getting this wrong can result in significant liability, and steep lawsuits. Sometimes, at a glance, it is easy to think that the solution is clear, and before you, forgetting that there are legal requirements for processes to be followed, failing which major damages can result. In certain cases, resolution can be reached through a process of mediation, and understanding when and where mediation can bring resolution with specialist consultation can avert the need for workplace investigations. Following a claim, throughout the process there are major decisions to be made regarding the appropriate action to take, but where policies are clear, mediation is not possible and an investigation is required, it is always best to ensure that the order of turning every stone is handled with the utmost professionalism and care to mitigate the risk of major damages resulting from failing to apply due process. In the worst cases, such as Robichaud v Canada Treasury Board) where cases involve discrimination, this becomes an issue in contravention of the Human Rights Code, or, as in the case of Disotell v Kraft Canada Inc 2011, this can lead to constructive dismissal. There is significant financial and reputational risk if employees do not adhere to these vital preventative policies and practices, and if these cannot be communicated with sufficient clarity to avoid lengthy and messy investigations and arbitrations, frequently driving up damages.

In the event of a claim, workplace investigations are required to conduct full and fair investigations into any allegations and are required to make unbiased and objective findings as to whether the facts amount to a breach of the Employer’s policy. All too many investigations take longer than they should, are subject to a lack of fair process, or fail on the grounds of ensuring a precise interpretation of the language of the policy, which leads to bias, and a lack of objectivity. These are indeed sensitive projects, there are substantial privacy considerations pertinent here; a whole field of legislation in its own right; and their successful execution relies substantially on the foundations of the organization and its legal instruments. Investigations need to be planned, timing and sequencing are of the essence, and the delicate pieces of information require the utmost care in handling. Even the art of asking the right questions and taking the right approach to speaking to employees involved can significantly influence the success and efficiency of a workplace investigation. Assessing the credibility of witnesses is likely where there lies the greatest risk of bias, and the answer to this is undoubtedly experience. Bringing an expert in workplace investigations on board is an important consideration where a company is truly aiming to uncover the truth, and to resolve the issue to the benefit of all involved, and to ensure that trust and goodwill can be maintained in the institutional memory of companies, the legacies of so many who work hard to build and grow them.

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