Worker's complaint sent back for reconsideration, she wanted more
The British Columbia Court of Appeal has dismissed a worker’s appeal requesting a declaration against WorkSafeBC after she wasn’t pleased with how it investigated and reviewed her harassment complaint.
The worker was a guest service agent at Crossroads Lodge in Kitimat, BC, operated by Dexterra Group.
In 2020, other employees at the lodge made complaints about the worker and she was given multiple disciplinary warnings. The worker felt that she was being bullied and harassed, so she made a complaint under Dexterra’s Respectful Workplace Policy on June 27. The complaint alleged that co-workers were engaging in workplace “mobbing” against her.
The worker went on medical leave from June 28 to Sept. 20. Dexterra felt that the medical leave was a protected leave during which it was inappropriate to contact her, so it didn’t speak to her for its investigation into her complaints. However, the company met with the worker on Aug. 5 to discuss the resolution of another complaint.
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Complaint of workplace ‘mobbing’
On Sept. 23, Dexterra terminated the worker’s employment. The worker filed a complaint with WorksafeBC alleging that Dexterra, by tolerating mobbing, was failing in its obligation to provide a safe workplace. An occupational safety officer investigated and submitted a simple report that found that “the employer’s response to this matter is compliant with WorkSafeBC requirements.”
The worker applied to WorkSafeBC’s review division for a review of the officer’s decision. A review officer found that Dexterra did not follow its procedures precisely, but it took reasonable steps to investigate the worker’s complaints of bullying and harassment and comply with its obligations under the BC Occupational Health and Safety Act.
The review officer accepted Dexterra’s perspective that it didn’t want to interview the worker during her medical leave, noting that there was also an active grievance from her that wasn’t settled until her return to work. Dexterra acknowledged that it erred in imposing the disciplinary warnings without getting the worker’s side of the story.
The worker petitioned the BC Supreme Court for judicial review, saying that “this is not about if the decision was patently unreasonable, this [is] about a cover-up plain and simple.” She alleged that the review “was based on false, irrelevant and made-up facts.”
Medical leave not an obstacle to investigation
The chambers judge found that the worker’s medical leave was not an obstacle to interviewing the worker for the investigation of her complaint, as Dexterra met with her during her leave for another matter. The company also could have interviewed her after she returned to work, said the judge.
The chambers judge also found that Dexterra could have continued its investigation of the worker’s mobbing complaint after the worker’s termination. The judge determined that the review officer’s decision was unreasonable and remitted the worker’s complaint for reconsideration.
WorkSafeBC’s review division conduct another review and referred the matter to the board with instructions to make an order against Dexterra for failing to conduct an appropriate investigation of the worker’s complaint.
Although the worker was successful in the judicial review, the worker appealed for a declaration that WorkSafeBC “failed in its duty to administer the Workers Compensation Act for the Ministry of Labour, specifically that the board breached its duty under the [act].” She later narrowed her appeal to seeking a declaration reprimanding WorkSafeBC for how it investigated and resolved her complaint, “like a formal discipline that works as a means of denunciation and deterrence.”
The Court of Appeal noted that a declaration was not “a mere observation or comment by the court on how it views a situation,” but was “a binding statement by the court establishing a right, power, duty or status.” The court also said that a declaration is not generally granted unless the court considers that it will “have practical effect and resolve an extant legal dispute.”
The Court of Appeal found that the quashing of the review decision and remitting the matter “effectively resolved all legal issues” and it wasn’t necessary to add to the order “with broad declarations.”
“I am not convinced that [the worker’s] desire to see the board chastised or disciplined is a proper purpose for declaratory relief,” said the Court of Appeal in dismissing the worker’s appeal. See Pereira v. British Columbia (Workers’ Compensation Board), 2023 BCCA 195.
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