In Ahluwalia v. British Columbia (Workers’ Compensation Board), A worker’s appeal was dismissed after the Court of Appeal determined WorkSafeBC’s review division correctly applied the law and policy regarding an employer-led bullying and harassment investigation .
The employee said she was bullied at work by the assistant manager on several occasions. Notably, the employee alleged that she was yelled at at least once.
The employer investigated the incidents and concluded that the employee’s complaints were unfounded. The employee filed a complaint with WorksafeBC. An occupational health and safety officer investigated and determined that the employer’s investigation complied with applicable laws and policies. The employee requested a review of the HSO’s decision. The Review Officer upheld the HSO’s decision. The employee then attempted to appeal the Review Officer’s decision to the Workers’ Compensation Appeals Tribunal (“WCAT”). The WCAT dismissed the employee’s appeal on the grounds that he lacked jurisdiction. The employee then sought judicial review of the WCAT decision dismissing her appeal and lost. Finally, the employee appealed the judicial review to the British Columbia Court of Appeal, again requesting a review of the Review Officer’s original decision.
WorksafeBC’s initial decision concluded that interviews were conducted with employees present at the store and those on duty when the events allegedly took place. CCTV footage was also reviewed at the time, although the footage did not contain audio recordings. The area manager ultimately concluded that the described interactions between the complainant and the assistant store manager were not atypical interactions between management and staff: there was no harassment.
The employee argued that the Review Officer ignored the “facts, rules, regulations and laws of WorkSafeBC”. The employee further alleged that the reviewing officer disregarded the video surveillance, which showed the bullying and failed to conduct an impartial investigation because the store manager who conducted the investigation was involved in the complaint.
What did the Court of Appeal decide?
The Tribunal ultimately found that the Review Officer made a reasonable decision in reviewing the evidence relating to the employer’s investigative process, concluding that its policy was appropriate and that the employee’s complaints were addressed. of an investigation in accordance with this policy. The court determined that the Review Officer reviewed all of the documents available to her, including the CCTV evidence. Although the Review Officer was unable to review the CCTV herself since the store was over-recording every seven days, she took into account that the surveillance was nevertheless reviewed and considered by the employer as part of its internal investigation. The tribunal also determined that there was no issue of impartiality since the employee’s original complaint was only address to the store manager. The store manager was not the alleged bully, although the complaint said the store manager did not intervene. Further, the investigation was actually conducted by the Area Manager, who was not the subject of the employee’s complaint to WorkSafeBC. All of these facts were noted and reviewed by the Review Officer.
The Court of Appeal determined that the Review Officer’s decision was not unreasonable and dismissed the employee’s appeal accordingly.
Key points to remember
This decision is an important reminder to employers of their legal obligations to prevent and respond to workplace bullying and harassment. Whenever a complaint is made, the employer must make reasonable efforts to investigate the merits of the complaint in accordance with applicable laws and policies. It is important to keep good records of the investigation in case the process itself is challenged. In this case, the employer had provided detailed evidence describing the receipt and investigation of several complaints by the worker.
This case also reinforces the importance for employers to know and understand the legal framework within which issues of bullying and harassment will be considered by the regulator. These frameworks vary to some extent from province to province and employers should be aware of their requirements. In this particular case, the applicable legislative provision to combat bullying and harassment is Article 21 of the AOC as well as WorkSafeBC Policy P2-21-2, which specifically identifies what WorkSafeBC considers to be “reasonable steps” in preventing bullying and harassment. The employer had met these requirements in its workplace harassment prevention program and followed its internal process adequately.
Finally, the decision is an important reminder that health and safety arbitrators are not responsible for questioning employers’ conclusions about whether a bullying and harassment complaint is justified. Rather, their mandate is to investigate whether an employer has complied with the legal framework regarding the current workplace harassment and bullying investigation process. In this case, the officer’s role was to determine whether the employer had taken reasonable steps to prevent workplace bullying and harassment, as required by law and WorkSafeBC policy.
If you need advice on this, please contact the author or your usual Fasken lawyer.
 Ahluwalia v. British Columbia (Workers’ Compensation Board), 2021 BCSC 399