The law on harassment investigations tells us that an employer must conduct an investigation that is “reasonable” and “appropriate in the circumstances.”[1]  The challenge is to know what the exact content of a reasonable and appropriate investigation is, particularly when the workplace issue to investigate appears to be like a puzzle with missing pieces whose final picture is constantly shifting.  Thankfully, case law has provided us with some guidance on what courts and administrative tribunals are looking for when they assess a workplace investigation that has become a topic of litigation.  A recent case from the British Columbia Human Rights Tribunal (the “Tribunal”), Davis v. Teck Coal Ltd[2] provides a useful analysis of how the Tribunal assesses the appropriateness of an employer’s investigative actions when deciding whether to hear an application on workplace discrimination.

The Background

Tricia Davis was employed as a haul truck driver at a coal mine operated by Teck Coal (“Teck”).  On her first day on the job, Ms. Davis said that she saw a heart, a women’s name, and a penis graffitied on one of the haul trucks.  She believed that the imagery was directed towards her as the new person onsite.  That same day, Ms. Davis said that she was on a Teck-operated bus on her way home when two male colleagues made derogatory comments about not shaking hands with her, and pointed and laughed at a street corner where they said that she belonged.

Ms. Davis resigned the next day.  When Teck’s Human Resources Administrative Assistant asked her why, Ms. Davis described the above events and said that she had been sexually harassed. The Assistant initiated an investigation in accordance with the company’s policies.  However, the assigned investigator left her employment before ensuring that someone else had started the investigation.  The Assistant then mistakenly told Ms. Davis that an investigation had been done but that Ms. Davis was not privy to the results.

Teck Coal’s Investigation

Ms. Davis complained to Teck’s Chief Executive Officer (CEO).  When Teck discovered that no investigation had actually been done on the above concerns, it immediately appointed an internal investigative team consisting of the Assistant, a Superintendent of Mine Operations, and a Human Resources Manager.  The 3-person team interviewed Ms. Davis along with seven other people who allegedly witnessed or were involved in the complained-of incidents. The respondents and witnesses said that the graffiti had been there for “days.”  They did not remember exactly what was said on the bus or denied that they would have said anything that could be considered harassment.  The team did not put the conflicting information to Ms. Davis for her response.

About two weeks after the start of the internal investigation, the team concluded that the incidents either did not happen in the manner that Ms. Davis described, or were “mischaracterized as having a context that did not exist.”  The team confirmed that a haul truck did have the graffiti recalled by Ms. Davis; however, they agreed with the respondents that the graffiti had been there for days beforehand and was not directed at her.  In terms of remedies, the team recommended that the operations department remind its employees, at a group meeting, that graffiti on equipment is unacceptable. The team also recommended that the Assistant be spoken to about her erroneous response to Ms. Davis.

The Human Resources Manager met with Ms. Davis to inform her of the findings.  Ms. Davis then emailed the CEO again to express her dissatisfaction with the internal investigation.  In response, Teck requested an independent, external review of its investigation, the conclusion of which was that Teck had conducted a “thorough, professional, and impartial” investigation. Teck informed Ms. Davis of the results.

Ms. Davis subsequently filed an application to the British Columbia Human Rights Tribunal alleging that she had experienced discrimination on the basis of her sex as a result of the graffiti and bus comment incidents.

The Tribunal Weighs In

At the Tribunal, Teck sought to have Ms. Davis’ application preliminarily dismissed on several procedural grounds, one of which was that a Tribunal process would not further the purposes of the British Columbia Human Rights Code because it would be duplicative of the internal workplace investigation that Teck had already done.[3]

The Tribunal rejected the argument on the facts of this case.  In coming to its conclusion, the Tribunal looked at the cases in which a similar argument was successfully and unsuccessfully made, and summarized the key factors that the past cases had considered:

• Was there an acknowledgement by the employer that the actions complained about may have happened or may constitute discrimination?
• If there was an investigation of the allegations, was the complainant involved in the investigation, to the extent that s/he could provide an answer to the results of the investigation?
• Does the employer have policies and procedures in place to make it less likely that a similar action will occur in future? Did the employer offer the complainant solutions that were appropriate to the concerns at hand?
• Did the complainant receive the same or similar remedial steps to those that the Tribunal could order in the event the complaint was justified?

As applied to the Teck case, the Tribunal had concerns about the participation and remediation opportunities that Ms. Davis was afforded under Teck’s investigative process, as compared to what she may have recourse to through a Tribunal hearing.  The Tribunal noted that Ms. Davis did not have a chance to respond to the conflicting information that Teck heard and ultimately relied upon. The Tribunal also queried Teck’s conclusion that no harassing statements were made or that Ms. Davis misconstrued what was said, when the investigation had yielded inconclusive evidence of what had happened on the bus.  Finally, the Tribunal noted that Teck did not offer any remedies specific to Ms. Davis.  Based on the foregoing, the Tribunal did not think that it would necessarily come to the same conclusions or remedies that Teck did, so as to make a Tribunal process duplicative and not further the purposes of the Code.

Key Lessons

The Teck case is particularly relevant for British Columbia employers due to the “further the purposes” provision in that province’s Human Rights Code, which has been interpreted as permitting the Tribunal to dismiss an application on the basis that the employer-respondent has appropriately investigated and addressed the issues raised in the complaint.  For other jurisdictions, the case still provides useful guidance on the factors that an adjudicative body might look at when considering whether a workplace investigation is “appropriate in the circumstances.”

Put conflicting information to the parties

Where the respondent or a witness has provided an alternate narrative which differs from the information provided by the complainant, this should be reviewed with the complainant.  The complainant may have information to share which explains the seemingly different narratives, or which challenges the credibility of the information offered by the opposing party. A workplace investigation that does not afford the parties this opportunity is vulnerable to subsequent claims of unfairness, bias, and/or lack of thoroughness.

Remembrance of events past

If a party does not remember an alleged incident, consider probing the reasons why, or seek out information from other possible sources such as witnesses and documents.  Be cautious of concluding that a lack of recollection by one party means that the other party is misstating the alleged incident.  It may be that the person has genuinely forgotten.  Or there may be reasons to the evasiveness that are relevant to the investigation and should therefore be explored.  Minimal memories from one party and verifiable details on the same interaction from the other party or alternative evidentiary sources may factor into an investigator’s credibility assessments of both individuals.

Consider providing remedial actions even if the complaint is determined to be unfounded

In reviewing the applicable case law, the Tribunal in the Teck case considered how other employers had taken action to address the complainant’s concerns and/or to mitigate the likelihood of similar conflict, even in situations where the employer had determined that the complaint was unsubstantiated.  Such actions can indicate to an external reviewer that an employer is cognizant of and willing to address the complainant’s specific concerns.

Will the investigator be seen as unbiased?

While the appointment of the Human Resources Administrative Assistant to the internal investigative team was not an issue that factored into the Tribunal’s analysis, our reading of the facts of this case is that the appointment raises further questions about the appropriateness and fairness of Teck’s investigation.  The Assistant was the first Teck employee who asked and knew about the reasons for Ms. Davis’ resignation.  The Assistant also mistakenly told Ms. Davis about a completed investigation.  In these circumstances, it was plausible that the Assistant would be interviewed as part of the internal investigation into Ms. Davis’ concerns.  It appears that she was not, because she was a member of the internal investigative team.  Even if the Assistant had been interviewed, her membership on that team posed a conflict of interest which made it unlikely that her information would be, or be perceived to be, neutrally assessed.  A further conflict of interest arose when the Assistant, as part of the investigative team, made findings and recommendations with regards to her own actions.  For internal investigations, it may be that an organization has a limited pool of available individuals who can do the task at hand.  Nevertheless, the chosen investigators must be unbiased and must be seen to be unbiased.  Without this, there is a risk that the investigative conclusions may be called into doubt.

[1] See: Code of practice to address workplace harassment, online: Ontario Government  <https://www.ontario.ca/page/code-practice-address-workplace-harassment> and the cases discussed in the “Standard of Review” section in Chapter 9 of Janice Rubin’s and Christine Thomlinson’s Human Resources Guide to Workplace Investigations, 2nd ed (Toronto: Thomson Reuters, 2018).

[2] 2018 BCHRT 285 (“Teck”).

[3] Section 27(1)(d)(ii), Human Rights Code, RSBC 1996, c. 210 (“Code”)

27 (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:

[…]

(d) proceeding with the complaint or that part of the complaint would not

[…]

(ii) further the purposes of this Code