Canadian Human Rights Complaints: Employer “Perfection” Not Required

Employers often justifiably claim that evolving Canadian workplace laws are bombarding them with increasingly onerous requirements. In the face of what are seen to be increasingly employee-friendly conditions, employers should take some comfort in a recent ruling of the British Columbia Human Rights Tribunal.

Reasonable Process Is Key

In its decision in Salanguit v. Parq Vancouver, 2024 BCHRT 119, the Tribunal granted an employer’s application to dismiss a discrimination complaint despite the case being one where there were substantiated allegations of discrimination. The reasoning of the Tribunal focussed on the fact that the employer had adopted a “reasonable” approach to dealing with the employee’s workplace complaint, and there is no requirement to deal with such complaints to the standard of perfection.

The Parq case involved a complaint by Rosalyn Salanguit, who was an employee at a casino. She worked for the employer for more than 10 years, in role where she managed others. Her underlying complaint was that co-workers had belittled and mocked her because of what she described as a speech impediment. To address this mistreatment, she reported her concerns to the employer, alleging that she had been bullied and harassed. The Tribunal application which Salanguit filed pursuant to the B.C. Human Rights Code arose after she was unhappy with the employer’s investigation process, the related findings and associated follow up.

The employer successfully applied to have the Tribunal dismissed. The Tribunal dismissed Ms. Salanguit’s complaint on the basis that: (1) the employer had made a reasonable settlement offer; and (2) the employer had already taken reasonable steps to remedy the discrimination allegations. The reasons issued by the Tribunal offer helpful insights into what constitutes “reasonable steps” for organizations responding to and investigating harassment and discrimination complaints. The specific findings in the Parq case were that the employer had: (1) taken the discrimination claim seriously; (2) addressed the impact of the discrimination on the complainant; and (3) taken steps to ensure that the discrimination would not happen again. These points are explained further below.

Taking the Complaint Seriously

The Tribunal’s reasons in Parq review the details steps which the employer took, which were deemed to be sufficient to satisfy the company’s legal obligations with respect to Salanguit’s complaint. The process which the employer was demonstrated to have following included the following:

1. The employer confirmed to the complainant, within a few days of receiving her complaint, that they would proceed with an investigation;

2. The investigation process was comprehensive, and including interviews being conducted with the complainant, the relevant co-worker, and other witnesses;

3. The assigned investigator’s role included making findings with respect to the complaint (which in this case included a finding that the complaint was substantiated); and

4. There was written report issued following the investigation, which required the offending employee to apologize to the complainant.

When taken together, these steps supporting the finding by the Tribunal that the employer had taken the required and reasonable steps to address the complaint.

Properly Addressing Impact of Discrimination

A further issue which the Tribunal in Parq reviewed was whether or not the employer had properly considered the impact of the allegations and related issues on the complainant. The Tribunal found that Parq Vancouver had indeed properly considered the impact of the discrimination on the complainant, and took reasonable steps with this impact in mind. The relevant evidence which supported this determination by the Tribunal included the following:

1. In recognition of the potential need for counselling and support, the company referred the complainant to the Employee Assistance Program;

2. The employer accommodated the complainant’s request for medical leave after she filed her complaint;

3. Proper consideration was given to reintegration into the workplace, having sensitivity to the potential interactions with others who were involved in or aware of the complaint; and

4. The communications with the complainant, including during the course of the Tribunal’s process, were found to be respectful.

All of these steps resulted in Tribunal determining that the employer had given proper consideration to the impact of the discrimination on the complainant.

Ensuring Discrimination Will Not Reoccur

The Tribunal’s reasons in Parq also found that the employer demonstrated that it had, as a result of the specific complaint, taken steps to ensure that the discrimination would not happen again. The evidence presented included the following:

1. The employer posted and sent a notice to all employees reminding them of their obligations relating to respect in the workplace;

2. Employees were expressly instructed to avoid teasing co-workers, with a specific warning that misconduct of this nature would result in discipline;

3. The organization’s bullying and harassment policy was updated to make it abundantly clear that conduct such as that experienced by the complainant was covered by the policy; and

4. Training sessions were held to explain the policy and related requirements.

In summarizing its findings, the Tribunal in Parq said that the standard which employers must follow in handling complaints is “reasonableness” as opposed to perfection. The employer in this case followed an approach which was found to be direct and attentive, characterized by what the Tribunal described as “respect and support” for the process.

Takeaway for Employers

This decision provides some welcome respite for organizations – even in cases where a complaint of discrimination is valid, there is merit to an approach which involves the employer trusting the process. The entire rationale for having workplace harassment and discrimination policies is that there can be an effective process to receive, respond to, investigate and follow up on allegations. And the simple but unfortunate fact that a complaint is substantiated does not mean that the matter needs to continue in perpetuity. Instead, with the right proactive and appropriate process, an employer can address complaints in a manner which allows all involved to recognize their faults, take appropriate remedial steps, and move on.