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September’s noteworthy workplace investigation cases from BC

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Court and tribunal cases pertaining to workplace investigations used to be cause for excitement among workplace investigators because they were so few and far between. But more and more, we are seeing workplace investigations featured prominently in case law, either as the main issue or an ancillary one.

In September there were two interesting cases from British Columbia that focused on workplace investigations.

In Tyler v. Commissionaires BC, the BC Human Right Tribunal considered what constitutes a continuing contravention of the Human Rights Code for the purpose of determining whether Ms. Tyler’s workplace harassment complaint was filed after the statutory 6-month limitation period.

Ms. Tyler started working for the Commissionaires BC, an organization that provides security services, in April 2016. She alleged that a co-worker began harassing her from her first day at work, including calling her “hot” and using security cameras to zoom in on her breasts. In August 2016 she wrote a letter to her employer detailing the harassment, which the employer investigated.

Ms. Tyler alleged that the workplace investigators told her that there was no reason she could not return to the workplace, but did not explain how this conclusion was reached. Ms. Tyler disagreed. She felt that it was not safe for her to continue working with her harasser, and in February 2017 filed her human rights complaint, alleging discrimination in the area of employment based on sex.

Under the BC Code, complaints must be filed within 6 months of the alleged contravention. The employer argued that the complaint was out of time, since the last arguable contravention of the Code occurred in July 2016, 7 months prior to Ms. Tyler’s application. According to the employer, any subsequent events were consequences of the alleged discrimination rather than discrete incidents.

The Tribunal referred to previous cases that found that a continuing contravention occurs when there is a series of separate acts of discrimination of the same character. The acts must be anchored by a distinct, timely act of discrimination that could – on its own – be considered a contravention of the Code.

Ms. Tyler alleged that the employer’s failure to act on her concerns about the safety of her workplace precluded her return to work at that location in September 2016. The presence of the harasser in the workplace was at the core of this allegation, and the inappropriate actions of that same harasser formed the basis for the other, earlier allegations. The adjudicator found that these two events – the employer’s failure to act on Ms. Tyler’s concerns and the harasser’s conduct – were sufficiently similar in character to be considered a continuing contravention, and Ms. Tyler’s complaint was therefore filed within the 6-month window.

The lesson from Tyler is that employers should be prepared for human rights adjudicators to take a holistic approach when evaluating a workplace investigation. An employer’s duty to protect the safety of the complainant in the workplace encompasses the protective measures put in place once a complaint is filed, the investigation itself, and the employer’s remedial actions after the investigation is complete. An alleged misstep by the employer at any of these stages may be considered a continuation of the complaint that prompted the investigation.

In City of Colwood v. CUPE, Local 374, the BC Labour Relations Board considered whether the employer had committed an unfair labour practice by attempting to investigate the Union’s president about advice she gave to a member of the bargaining unit. Specifically, the employer wanted to investigate whether the advice was an attempt to perpetuate fraud on the city’s Long-Term Disability plan.

The Union argued that the employer’s investigation constituted interference in the administration of the Union, whereas the employer argued that it had the right to investigate potential misconduct of its employees, and that being a Union official did not insulate an employee from such an investigation.

The employer relied on previous case law establishing that steward immunity only applies to conduct that can reasonably be considered a legitimate exercise of union function, and occurs when the individual is acting in an official capacity. The employer submitted that neither of these conditions had been established, and could not be established without an investigation.

The Board agreed that, even if the Union’s president were acting as a shop steward during the time the alleged advice was given, this would not necessarily render her immune from investigation and discipline. A previous Board decision described steward immunity as follows:

“[the] bounds of steward immunity must be drawn in a manner that balances the need to preserve the viability of the employment relationship with the legitimate right of the union to carry out its responsibilities without undue interference from the employer. This balance is achieved by requiring proof of conduct that is both beyond the bounds of lawful union activity and detrimental to the interests of the employer.”

The Board found that the employer had a legitimate basis to investigate the Union president’s actions, and that the Union had not established that the employer was attempting to use the investigation to interfere with the Union’s administration. Accordingly, the Union’s application was dismissed.

Employers and unions alike should be aware of the boundaries of steward immunity, and should note that a semblance of fraudulent activity may be addressed through a workplace investigation, even if it requires interviews with union leaders.

Michelle Bird and William Goldbloom

About the Author: Michelle Bird conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Michelle also provides workplace investigation and human rights training to staff at all levels.

About the Author: William Goldbloom develops and delivers training sessions that educate clients about their legal obligations in the workplace. William also conducts workplace assessments and investigations to help employers prevent, address and resolve issues related to discrimination, physical, verbal and psychological harassment, violence, poisoned environments and bullying.