BC Human Rights Tribunal rejects employer's bid to dismiss old discrimination claims
A recent ruling from the British Columbia Human Rights Tribunal (BCHRT) highlights key considerations for employers aiming to prevent and address workplace toxicity.
The case involved a complaint from a former employee who reported enduring discriminatory comments based on race, religion, gender, and mental health status, as well as mishandling of harassment reports and concerns that her termination was linked to her mental health issues.
Although the tribunal did not establish whether discrimination occurred, it found that the allegations warranted a full hearing, rejecting the employer’s application to dismiss the complaint outright.
Early intervention and pattern recognition
Employment lawyer Hani Shamsi from Grosman Gale Fletcher Hopkins emphasizes the importance of recognizing patterns of complaints early and addressing issues promptly.
In this case, the tribunal noted specific incidents that, together, allegedly created a hostile atmosphere for the employee, including remarks around gender, race, and religion that persisted despite attempts to raise concerns.
“I think a good HR person would pick up on this — like, ‘Hey, there's multiple complaints. Let's act on it immediately,” she says, explaining that situations like these call for immediate, proactive steps by HR and management to identify and resolve issues at the first sign of recurrence.
“They need to investigate the people involved … and ask them questions within a very short span of time. You want to be quick about it, as quick as possible, to get your witnesses in order to understand what happened, what is going on. I think the investigations that are most successful are the ones that happen very promptly … to gather information quickly so there's no loss of memory, no loss of information.”
Middle managers can be complicit in poisoned work environments
According to employment lawyer David Brown of Ascent Employment Law in Kelowna, B.C., the failure to address complaints is often due to insufficient policies and a lack of support for middle management in handling such issues.
“This is an example of ineffective middle management,” says Brown, referencing the allegations of derogatory comments of a racial and sexual nature towards the complainant and another employee in this case that were initially ignored when brought to the attention of management.
“That is a complete failure of management, if that's the workplace culture that exists there. It starts with creating a positive workplace culture, an inclusive workplace culture. It then expands to reinforcing that workplace culture and creating expectations around that kind of communication.
“The business is on the hook because they tolerated the conduct of this manager. That's the complicity. They condoned the behaviour, and that's why they're now facing this.”
Once an inclusive foundation is built, Brown advises that “when there are issues that come up that violate those cultural norms, you have to deal with them... effectively and immediately, rather than sweeping them under the rug.”
Handling investigations with care
The tribunal’s ruling on this application highlights the need for a careful and structured approach when investigating workplace complaints. Impartiality and objectivity are crucial, Shamsi notes.
“This judge looks at how the complaint was handled, and the investigation itself, and that [the employee] felt she was being attacked during the complaint process,” she says.
“They have to give people the space to feel comfortable, to bring issues forward. That's part of the health and safety. They have to make it a safe space to be able to do that.”
A foundational component of a healthy workplace is creating an environment where employees feel comfortable raising concerns; Shamsi adds that allowing employees to give anonymous feedback often reveals significant information about workplace dynamics.
Employers should avoid viewing incidents in isolation, Brown says, stating when incidents “all are tied in together, and they all kind of relate around the same nature, the same type of concerns, then they can be viewed as one ongoing contravention … they can be viewed together as being a systemic discrimination, basically.”
He further notes that employer applications to dismiss employee HRT claims are “tough”, as complainants need only meet a minimal standard to proceed to a hearing, which could be a costly and time-consuming process.
“If you look at their allegations independently of anything else, just looking at what they have to say, would this meet the threshold of discrimination?” Brown explains.
With this standard, complaints can clear that bar even in the absence of documentation, he says – though it might not be enough at a formal hearing.
Appointing a health and safety representative
Establishing a designated health and safety representative in each department can help ensure that issues are addressed in a timely and consistent manner, Shamsi advises, stating that “every department of any company, any corporation, any business, should have an appointed person who is aware of health and safety...and then ideally the HR person.”
This individual should understand health and safety policies thoroughly and be able to respond to complaints swiftly. Without that dedicated response, she says, employers could risk getting into further hot water.
“So when someone makes a complaint, they're triggered immediately. They know what to do. They know how to assess the complaint. They know their obligations under the law about how to look into the complaint, how to investigate it, and, more importantly, deal with it promptly,” she says.
“Because I think the one thing employers often fail to do is look into things promptly. Maybe they don't have manpower, or different reasons for doing so, delays in assessing and investigating the complaint can actually significantly contribute to the poisoned work environment.”
