Court examines whether inadequate workplace investigation warrants financial penalties
The Court of Appeal for British Columbia recently dealt with an appeal by a worker who challenged a decision refusing to impose penalties on her former employer. The worker had filed a complaint alleging she was a victim of workplace bullying by certain co-workers.
The employer issued a verbal warning to the worker without telling her who made the complaint or speaking to her about her version of events.
The board found the employer had violated legislation by inadequately investigating the worker's complaint, but declined to impose financial penalties.
Background and complaint timeline
The employer employed the worker as a guest service agent and front desk clerk at a lodge. The worker's supervisor informed her that a complaint had been made about her behaviour.
The employer issued a verbal warning without speaking to her about her version of events. The worker alleged the complaint was false.
The worker believed she was the victim of bullying from certain co-workers. She filed a grievance and made a complaint under the employer's respectful workplace policy.
She took medical leave due to anxiety from the conflict. She made a complaint to the Workers' Compensation Board about how the employer addressed her harassment complaint.
The union later settled the worker's grievance on terms that did not satisfy her. The worker advised the employer that she wanted to return to work. The employer terminated her employment shortly thereafter. The complaint proceeded slowly before the board.
Board investigation and violation orders
Initially, an occupational safety officer found the employer's response compliant. The worker was successful in a judicial review. The court found the review officer's decision unreasonable for failing to conduct a full investigation. After reconsideration, the board issued an order that the employer had violated legislation.
The board found that the employer had inadequately investigated the complaint. It ordered a new investigation. The board later found the new investigation sufficient but issued no penalty. The board also found the employer's response to the co-workers' complaint non-compliant.
The board issued additional orders related to deficiencies in the investigation. It also cited inadequacies in the employer's bullying and harassment policies and procedures. No penalties were issued in respect of these violation orders either. An internal review later confirmed the violation orders.
Legislative framework and penalty policy
The board's mandate includes regulating occupational health and safety standards. Legislation requires employers to ensure worker health and safety. The board's harassment policy requires employers to take all reasonable steps to prevent or minimise workplace bullying. The policy acknowledges that such conduct can lead to injury, illness, or death.
The board may impose administrative penalties where an employer fails to comply with occupational health and safety provisions. Higher penalties may be imposed where an employer fails to take sufficient precautions to prevent work-related injuries.
These penalties must not be imposed where the employer establishes that it exercised due diligence. They must be considered where a violation resulted in "a high risk of serious injury".
Factors that must be considered include the "potential for serious injury, illness or death in the circumstances". The likelihood that the penalty will motivate the employer and other employers to comply in the future must also be considered.
Board policy directs officers to consider all relevant circumstances to determine if a penalty is warranted. Penalties are not imposed automatically.
Review officer's risk assessment
The review officer assessed the employer's new investigation. She concluded it met the criteria in relevant board policies. She found the investigation was undertaken promptly. It was as thorough as possible given the passage of time and the unavailability of witnesses.
The review officer considered the worker's argument that all violations involving bullying and harassment have the potential to end in serious injury or death. She recognised that the complaint was "arguably not investigated at all" initially.
She acknowledged that the employer's failure to adequately investigate the complaint "could have created a risk of psychological injury to [the worker]". She did not consider the risk to be high.
The review officer disagreed that it was necessary to assess the merits of the complaint to determine whether the violation was high risk. Her focus was on the specific facts of the violation.
She concluded that the violation created a low risk of serious injury or death. She found the evidence insufficient to characterise the violation as intentional.
Assessment of repeated violations
The co-workers' violations consisted of repeated offences. The review officer found herself bound to consider a penalty under board policy. She noted that penalties are not imposed automatically. The policy directs her to consider all relevant factors.
The review officer assessed whether the violations resulted in a high risk of serious injury. The underlying factual basis included the employer not interviewing the worker or giving her an opportunity to respond.
The employer's harassment policies and procedures were inadequate. The employer failed to train workers on adequate policies.
The review officer found these were violations with a low risk of serious injury or death. She found that the employer failed to establish that it exercised due diligence.
While technically these were repeated violations, she found it appropriate to consider them as a single failure. She did not find that the violations required a penalty to motivate the employer or other employers.
Worker's arguments on appeal
The worker raised two main grounds of appeal. First, in declining to impose penalties, the board failed to properly assess the risk of serious injury. She argued the review officer did not properly assess the risk associated with the employer's inadequate investigation.
She maintained that the board should have imposed a penalty.
Second, the board effectively endorsed the employer's inadequate investigation. She argued this breached procedural fairness and demonstrated bias. The worker took issue with the review officer's reasoning about the risk of serious injury.
She argued it makes no sense to treat psychological injury the same as physical injury.
The worker argued that the improper handling caused additional harm. She maintained that all bullying complaint failures create a high risk requiring sanctions.
The board submitted that the worker had misinterpreted the review decision. Its authority is limited to ensuring employers meet policy requirements.
Court's analysis of risk
The court stated that board policy on assessing high-risk violations focuses on physical injury but is not restricted to physical injury. The court accepted that a failure to properly investigate a bullying complaint could result in a high risk of serious injury.
Such failures can cause additional harm to a worker beyond the underlying conduct. However, the court did not accept that this kind of violation will, in all cases, result in high risk.
The court stated the review officer's reasoning was not incoherent, irrational, or illogical. A reasonableness review is not a "line-by-line treasure hunt for error".
The court found the review officer assessed risk in accordance with board policy. She did so in the context of the circumstances, not at large.
Those circumstances included the entire context of the complaints and cross-complaints. The employer had obligations to protect all its workers.
A new investigation was ordered and determined to be compliant. The violation orders already imposed constituted sufficient enforcement action.
Procedural fairness findings
The worker's second ground of appeal asserted that the board endorsed the employer's inadequate investigation. She claimed this breached procedural fairness and showed bias. The board submitted these statements do not endorse the employer. They simply describe what it did and why.
The court agreed with the board's submission. The passages must be read in the context of the issues being considered.
The board's focus throughout was on ensuring employers have appropriate systems and processes. It was not assessing the merits of individual complaints.
The court stated the review officer acted fairly. The review officer's reasons showed she applied board policy to the circumstances.
She clearly explained why she exercised her discretion not to impose penalties. The court stated that this decision and reasoning meet the reasonableness standard.
Appeal dismissed
The court stated it understood the worker's frustration with the process. The employer never concluded with a proper assessment of the merits of any of the complaints. The process had been reviewed by the board several times.
The worker had not established that the review officer's refusal to impose penalties was unreasonable.
The worker had not established that the review officer was biased in favour of the employer. She had not established a breach of procedural fairness.
The appeal was dismissed. The court found no basis to interfere with the board's decision.
