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Workplace investigation alert: BC case shows how employers should NOT handle workplace harassment

While you’re here, you may wish to attend one of our upcoming workshops:

Workplace Investigation Fundamentals
18 Jun - 20 Jun at
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If a complaint of workplace harassment is made, do you know how to respond, investigate, and report on it — legally and correctly? If you don’t, you are not alone. This 3-day course is a crucial primer for today’s climate. Investigate mock complaints (inspired by our work across the country) from start to finish, build your investigation skills, and learn how to avoid costly pitfalls. The third day focuses on mastering report writing.
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Special note to BC readers:

If this subject is of interest to you, you may wish attend one of our related workshops in BC. Some spots are still open for the following sessions – we recommend registering soon. We hope to see you there.

A recent case from British Columbia, Wells v. Langley Senior Resources Society, is a useful example of how an employer should not handle workplace harassment.

In 2014, Ms. Wells was hired as Executive Director for the Langley Senior Resources Society (the Society), a non-profit volunteer organization providing services to approximately 2,000 members. Almost immediately, Ms. Wells identified many problems with Society, ranging from administrative issues, to personnel issues, to financial mismanagement. The Society’s governing Board had been aware of some of these matters, but not the scope or the implications.

Ms. Wells specifically noted to the Board that the Society had no harassment policy, and that the overall culture of the workplace was bullying and abusive.

In an effort to address the Society’s budget deficit, the Board made budget cuts that were decidedly unpopular with the Society’s members and staff, many of whom quit in protest. Former staff and some of the Society’s members – including one in particular, referred to in the decision as the “problem member” – began a campaign of bullying and harassment towards Ms. Wells, as the Society’s new Executive Director.

By early 2015, Ms. Wells was being harassed by former staff and Society members upwards of 20 times per day. The harassment included name calling, spitting, and threats against her and her family. Ms. Wells began having panic attacks, and informed the Board that she was nearing mental burnout. She told the Board that she was considering contacting the police. The Board told her not to take it personally, instructed her not to contact the police, and took no action to address the harassing behaviour.

As the harassment continued, Ms. Wells asked the Board to take steps to have the membership of the “problem member” and other members participating in the harassment revoked. The Board did not do so, and Ms. Wells was advised to “hang in there.”

By March of 2015, Ms. Wells left on sick leave due to the stress caused by the harassment. While she was off, the Board enacted a harassment policy, and banned the “problem member.” The Board hired a temporary Executive Director in April.

Ms. Wells was scheduled to return to work on July 13, 2015, and was dropped off at the Society that morning by her husband. A Board member met Ms. Wells at the front door, handed her a letter, and informed her she was being terminated. Ms. Well’s husband, who was driving away, had to be flagged down to take her home, which Ms. Wells found “humiliating.”

Ms. Wells filed a complaint with the British Columbia Human Rights Tribunal (the Tribunal), alleging that the Society discriminated against her on the basis of her mental disability. The Society denied that it discriminated against Ms. Wells, and argued that its decision to terminate her was based on her management style and fit within the organization. In particular, the Society alleged that certain important projects had not been completed by Ms. Wells.
The Tribunal dismissed the Society’s argument for several reasons, including: the fact that certain projects were not completed was known to the Society when Ms. Wells had her performance appraisal in January, and they were not identified as a concern; the alleged performance issues were never communicated to Ms. Wells before she left on sick leave in March; and when asked about Ms. Wells’ termination during the hearing, none of the Society’s witnesses made reference to the alleged performance issues.

When asked why the Society decided that the new Executive Director was a better fit for the organization, the Society’s witnesses referred to the fact that the new Executive Director could handle the stress, that Ms. Wells did not fit the “strong culture” of the organization, and that the Board felt it might be detrimental to Ms. Wells’ health to return. The Tribunal noted that these explanations amounted to drawing a connection between Ms. Wells’ mental condition and the reason why she was not a good “fit” for the organization. Furthermore, the Board had failed to consider the fact that the new Executive Director’s ability to handle the stress of the Society was likely due to the fact that the Board had addressed the bullying environment since Ms. Wells left, by instituting a harassment policy and by banning the problem member.

The Tribunal concluded, on a balance of probabilities, that Ms. Wells’ termination was due, in whole or in part, to her disability, and ordered the Society to pay Ms. Wells $30,000 for injury to dignity. The quantum of the award was based, in part, on the fact that the Society was aware of the abuse being directed at Ms. Wells on a daily basis and did nothing to address it, and that when terminating her the Society “ambushed” Ms. Wells outside the building on the day she was scheduled to return to work. The Tribunal noted that Ms. Wells was anxious about returning to work, and that the Society ought to have known she was vulnerable. Accordingly, the Society should have given Ms. Wells “the courtesy of privacy or time to receive and digest the news.”

Four Key Lessons

1. A good harassment policy is an employer’s best friend

The Society did not have a policy in place to deal with harassment complaints, and did not put one in place until after Ms. Wells went on sick leave. There were clearly many issues with the work environment at the Society, and a clear policy dictating how harassment and bullying behaviour would be investigated and addressed could have given the Board some much-needed guidance.

2. A harassment policy and program must address harassment from ALL sources

An employer has an obligation to protect employees from bullying and harassment not only from co-workers and supervisors, but also from outside individuals who engage with the organization. The Society’s Board was well aware that Ms. Wells was being targeted by former staff and Society members, but took no steps to curb the behaviour until Ms. Wells had already gone on sick leave. This factored into the Tribunal’s decision on remedy.

3. Putting up with harassment cannot be a condition of work

The ability to function in a harassing and bullying environment is not a bona fide job requirement. The Society tried to argue that Ms. Wells was too mentally fragile to handle the “strong culture” of the Society, whereas the new Executive Director was stronger and therefore a better fit. It is the duty of an employer to provide employees with a safe, respectful work environment; it is not the duty of employees to “hang in there” and deal with abuse.

4. If you must terminate an employee, do it as respectfully as possible

For an employee such as Ms. Wells, who was returning from a leave of several months during which she was dealing with a stress-related illness, being unceremoniously terminated in the parking lot must have been extremely upsetting. Employers need to consider the vulnerability of the employee when deciding how to proceed with termination, or the cost consequences could be dire should the matter come before the Tribunal.