Melanie Vipond, a lawyer specializing in workplace law at Gall, Legge, Grant & Munroe LLP in Vancouver, recommends some key steps you should take if WorkSafeBC informs you that one of your employees has filed a bullying or harassment complaint.
As a starting point, you should be able to demonstrate that you did your utmost to minimize or prevent such prohibited behaviour in your workplace through your company-wide comprehensive anti-bullying and harassment policy. Nevertheless, a complaint has been filed. How this will be resolved may well depend on how swiftly and thoroughly you respond, says Vipond.
GET DETAILS ABOUT THE COMPLAINT AS SOON AS POSSIBLE
Don’t delay. When WorkSafeBC calls, says Vipond, “get as much information from the case manager as you can about the claim. You often won’t know anything from a worker who has left the workplace and won’t talk to you.” This means determining the identity of the complainant and any witnesses whom WorkSafeBC’s case manager wants to interview, because you will not receive a written copy of the complaint from WorkSafeBC.
START YOUR OWN INVESTIGATION
“It’s a misconception to think that you can rely on WorkSafeBC’s investigation. That’s not legally correct,” says Vipond. “You need to do your own investigation, and you should want to do your own, because whoever does it for your company understands your workplace and your staff better than WorkSafeBC does.”
FILL OUT FORM 7 PROMPTLY
Don’t shove the complaint to the side of your desk and hope it will solve itself. You should complete the Employer’s Report of Injury or Occupational Disease as soon as possible; there can be financial penalties for unreasonable delay. Even if your information about the alleged incident is incomplete, or if WorkSafeBC has yet to provide full details, “you should still fill out the form and say that details are unknown at this time.”
PROTEST THE COMPLAINT
“In Form 7,” says Vipond, “there is an option to protest the claim, and I would encourage all employers to protest all harassment and bullying complaints unless it is very clear that the complaint will meet WorkSafeBC’s threshold for acceptance. It is important to understand that the threshold is very high for these claims, so even if the employer does not dispute that the employee suffers from a mental disability, or had some workplace dispute with a colleague, there is a good chance it may still not be accepted by WorkSafeBC.” However, if the claim ends up being accepted, the employer who has protested it can demand disclosure of the materials WorkSafeBC relied on to come to its decision. Having these materials may help at the appeal stage. If you have not protested in the first place, the materials won’t be disclosed to you.
Employers should protest claims for both financial and human resource reasons. “Disability costs are increasing dramatically, doubling every six years. Employers have a great need to harness these costs. You also want to set the right culture in your workplace. By taking an active role, employers can preserve the integrity of their workplace by helping to prevent illegitimate claims from being accepted,” she says.
BE COOPERATIVE WITH WORKSAFEBC
Don’t automatically take an adversarial attitude toward WorkSafeBC and the claim’s case manager. “If there’s pushback,” says Vipond, “respond respectfully and say that you have your own obligation to complete your own investigation.” Many claims are dismissed on the grounds of reasonable managerial direction. “A lot of complaints involve labour relations issues, which are excluded from WorkSafeBC’s definition of harassment and bullying. Some involve harassment claims where the employee simply hasn’t liked the result,” she says. “The employee thinks, ‘I’ll go to WorkSafeBC, maybe they’ll think differently’.” If you can show letters of expectation, disciplinary letters and documented examples of reasonable managerial direction, you will help WorkSafeBC come to a decision by sharing that information.
SUPPORT YOUR EMPLOYEES BUT BE CANDID WITH THEM
Some employees are apprehensive about WorkSafeBC’s investigation. You should encourage their participation but let them know they’re entitled to have someone sit with them during the interview. If they agree, use that opportunity to take notes of what is being asked and what your employees are saying. When you are doing your own investigation, Vipond cautions, “don’t promise pure confidentiality, in the sense that whatever they say to you will stay in that room.” That’s because you may need to provide your notes to WorkSafeBC to prove that you performed an effective investigation. The best way of putting it to your employees, says Vipond, is this: “We’ll keep this as confidential as we can, unless required by law.”
In the period from July 1, 2012 to Dec. 31, 2013, 1,006 complaints were submitted in BC alleging bullying and harassment, of which only 42 were accepted by WorkSafeBC. As well, 35 per cent of the claims were rejected on the basis of reasonable management direction. The good news for employers is that “WorkSafeBC doesn’t accept a lot of these claims,” says Vipond.
A Lawyer’s Perspective On Complying With The New Anti-Bullying And Harassment Legislation
WorkSafeBC’s Bullying and Harassment Prevention Tool Kit
WorkSafeBC’s Backgrounder on Workplace Bullying and Harassment
WorkSafeBC’s Employer Fact Sheet on Occupational Health & Safety Bullying and Harassment Policies