In Salanguit v Parq Vancouver and Abonitalla [Parq Vancouver], an employer successfully relied upon its thorough investigation and subsequent corrective to persuade the British Columbia Human Rights Tribunal (the “Tribunal”) to dismiss an employee’s discrimination complaint. Amid heightened scrutiny of investigation processes by adjudicators, this decision serves as an increasingly rare, but valuable reminder of the necessity for employers to take complaints of misconduct seriously, conduct comprehensive investigations, and implement effective remedies to maintain a fair and compliant workplace.

Background

The employee reported to the employer that a colleague had mocked and mimicked her based on a self-described “speech impediment”. Over the next two months, the employer conducted an investigation (the “Investigation”), which substantiated the allegations and found that the respondent employee’s conduct violated the company’s policy against bullying and harassment (the “Policy”). As a result, the employer implemented various corrective and remedial actions.

The complainant employee was nevertheless dissatisfied with the Investigation and its outcomes. She filed a complaint with the Tribunal against both the employer and the respondent employee, alleging discrimination under the British Columbia Human Rights Code [Code].

In response, the employer filed an application to dismiss the complaint against it, arguing that further proceedings would not further the purpose of the Code. The employer contended that it had already appropriately addressed the discrimination through its Investigation and subsequent remedial and corrective actions.

Decision

The Tribunal explained that, to dismiss a complaint under the Code on the basis that the employer has already appropriately addressed the alleged discrimination, the employer must establish that it:

1. took the employee’s discrimination claim seriously;
2. appropriately addressed the impact of the claim on the employee; and
3. took appropriate steps to ensure that the discrimination underlying the claim would not happen again.

The Tribunal set out a series of contextual factors it may consider in determining whether the employers’ actions meet the criteria above, including:

1. the seriousness of the alleged discrimination;
2. the timeliness of the employer’s response;
3. the nature of the employer’s response;
4. whether the employer acknowledged the discrimination;
5. whether the employee was compensated for their losses;
6. whether the employer has a discrimination policy; and
7. the importance of encouraging parties to address allegations of discrimination in a timely and constructive manner.

The Tribunal emphasized that the standard for employers in addressing workplace discrimination is “reasonableness”, not perfection.

Ultimately, the Tribunal granted the employer’s application to dismiss the complaint against it, finding that the employer had responded to the complainant employee’s allegations in a reasonable and appropriate manner.

With respect to taking the discrimination claim seriously, the Tribunal considered that the investigation was conducted in a fair, thorough, and timely manner. More specifically, within a few days of receiving the complaint, the employer confirmed that it would commence an investigation. The employer also implemented appropriate corrective action, as it issued a final written warning to the respondent employee alongside a letter outlining the investigative findings.

The Tribunal was also satisfied that the employer appropriately addressed the impact of the respondent employee’s conduct on the complainant employee. In particular, the employer connected the complainant employee with its Employee Assistance Program, accommodated her need for medical leave, held the respondent employee accountable by requiring them to write an apology to the complainant employee, offered to arrange a meeting between the parties to allow them to discuss what happened, and made a commitment to ensuring the complainant employee’s return-to-work arrangements following the investigation were appropriately tailored. The Tribunal also took into account the employer’s reasonable settlement offer to the complainant employee, which fell within the range of awards she could expect to receive had her complaint at the Tribunal been successful.

Lastly, the Tribunal found that the employer took appropriate steps to prevent future incidents. In addition to issuing a final written warning to the respondent employee (as noted above), the employer updated its Policy, required all employees to undergo relevant training, and issued a memorandum to staff in the parties’ department regarding respectful workplace expectations. The memorandum made clear that “teasing and excluding coworkers” violated the Policy, that such incidents would be investigated, and that substantiated violations of the Policy could lead to disciplinary action, up to and including dismissal.

Takeaways for Employers

The Parq Vancouver decision highlights the importance for employers to take workplace misconduct complaints seriously, conduct comprehensive investigations, and implement effective remedies. The decision also serves as a valuable example of how taking these steps can benefit the employer in cases of escalation, as the employer’s actions directly resulted in the successful dismissal of the human rights complaint it faced.

In light of this decision, employers should consider the following guidance on how to effectively manage allegations of misconduct, support affected employees, and prevent future incidents:

1. Take allegations and reports of incidents seriously: The Parq Vancouver case illustrates the importance of promptly initiating a thorough investigation upon receiving a complaint. By doing so, employers demonstrate their commitment to addressing workplace misconduct and fostering a respectful environment. A swift and thorough response also helps to foster trust in the investigative process from the get-go. Employers should be prepared to act quickly, investigate comprehensively, and implement corrective actions as appropriate, based on their findings.
2. Address impact of alleged misconduct on affected employees: It is crucial for employers to adequately address the impact of the alleged misconduct on affected employees, including by ensuring they feel heard and supported throughout and following the investigation process. In Parq Vancouver, the employer took several steps to support the complainant, including connecting her with the Employee Assistance Program and accommodating her need for medical leave. After the allegations were substantiated, the employer held the respondent accountable by requiring an apology. Additionally, the employer offered to facilitate a meeting between the parties to discuss the incident and tailored the complainant’s return-to-work arrangements to her needs.
3. Take appropriate steps to reduce future incidents in the future: When allegations of misconduct are substantiated, employers should demonstrate their commitment to preventing similar incidents from happening in the future. In Parq Vancouver, the employer took proactive measures to prevent recurrence, including issuing a final written warning to the respondent, updating its anti-bullying and harassment policy, requiring all employees to undergo relevant training, and issuing a memorandum to staff emphasizing respectful workplace expectations and the consequences of policy violations.

Navigating workplace investigations can be tricky terrain to navigate. Employers may wish to contact any of our lawyers and workplace investigators for support with workplace investigations.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.