When conducting investigations, it is my practice to inform all parties that should they feel that their participation in the investigation and its process results in reprisal, they should immediately advise me or contact another appropriate resource. It is also important, for employers, when dealing with complaints and persons who are subsequently disciplined or terminated for reasons unrelated to the complaints, to ensure that the reasons for termination are clear and not seen to be related to having made the complaint[1]. This is because, should the termination be seen to be related to the complaint, it may trigger anti-reprisal provisions in applicable legislation. Furthermore, the employer will in most cases, bear the burden of proving that the termination was not reprisal for filing the complaint.

The issue of reprisal after a complaint was recently considered by the BC Human Rights Tribunal (the “Tribunal”). In hearing a Dismissal Motion in Lutz. v. Babco Sales, the Tribunal found that the respondent’s response to harassment allegations made by the complainant may have factored into the respondent’s decision to terminate the complainant, which could be considered to be reprisal.

The complainant, Ms. Lutz, worked at the respondent Babco Sales for less than two years when she was dismissed. The respondent indicated that the complainant was dismissed due to poor performance. The complainant alleged that she was discriminated against based on sex arising from her reporting of an alleged incident of peeping by her direct supervisor.

The complainant told the Tribunal that on three separate occasions in February or March of 2014, she witnessed her supervisor, who is male, looking through a hole in the wall into a warehouse bathroom stall used by female employees. The complainant said that she told her female co-worker that she had seen the supervisor “peeping”. She noted that approximately one week after telling her co-worker about the peeping, the co-worker told her that she, too, had witnessed the supervisor peeping through the hole when another female employee was in the bathroom. The complainant explained that she and her co-worker agreed to inform the sales manager about the peeping incidents. The evidence was that the owner of the respondent conducted the investigation.

The complainant explained to the Tribunal that the respondent conducted a limited investigation in March 2014, interviewing herself, the co-worker and the sales manager. The complainant explained that she was disappointed by the investigation and that she had hoped that someone with knowledge of the legal issues would conduct the investigation.

The complainant told the BCHRT that, after a short suspension, the supervisor returned to work and no further action was taken regarding the peeping. The complainant said she advised the respondent that she was uncomfortable reporting to the supervisor because she had witnessed the peeping and because the respondent did not take any steps to prevent such behaviour by the supervisor in the future. The complainant was subsequently fired.

The respondent denied that the dismissal had anything to do with the peeping incidents or the time the complainant took for medical reasons, noting that the complainant’s performance was problematic for a long time prior to her dismissal and pre-dated the allegations outlined in the complaint.

The Tribunal found that the allegations regarding the harassment, the adequacy of the investigation, and its aftermath may have factored into the dismissal of the complainant. The BCHRT further found that this was inappropriate and ordered that the complaint proceed and that the issues be determined.

The take-aways from this case are:

• Employers should be mindful of what an investigation looks like to those involved and to those outside of the investigation, in order to ensure that there can be no bona fide assertions of reprisal as a result of the complaint. To that end, employers should ensure that they are thorough when conducting their interviews, and speak to as many parties as are required.
• When an employee indicates that they feel that they have concerns about reporting to the person about whom they made a complaint, the employer should consider all practical options regarding the interactions between the complainant and that person.
• Employers are best advised to document, document, document when considering terminating an employee after the employee makes a complaint.

Andrea Lowes

About the Author: Toronto Employment Lawyer Andrea Lowes conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Andrea also assists her clients by providing workplace investigation and human rights training to staff at all levels. Andrea’s practice also includes workplace assessments and reviews.

[1] Unless, of course the complaint is made in bad faith, frivolous or vexatious and therefore perhaps, cause for termination.