8th October 2021
As safety professionals we understand the duty to investigate when workplace hazards lead to incidents. There are fairly clear lines around incident investigation and reporting requirements, and they are generally well outlined in regulation, and many work places.
However as we start to delve into Covid related work absences, mental health related illnesses, and other worker related concerns perhaps we may be delving into new waters that may not be so clear when it comes to human rights, and common law issues.
This month Chris Siver, barrister and solicitor will be providing a guest blog looking at the duty to investigate from an employers perspective. Chris has a general civil litigation practice at Mulroney Siver Law. Chris’s thoughts on this topic are below:
As organizations grow, the laws and regulations surrounding workplace safety seem to grow in exponential complexity at the same time. This can lead to employers not being ready to prevent a loss or meet the burden on them when needed.
The duty to investigate is made expressly clear in the Workers Compensation Act. The employer must act if there has been an incident which causes a physical injury and if there has been a complaint of bullying and harassment causing mental health injuries.
For both Human Rights issues and common law issues, the duty to investigate is not so clear.
With regard to Human Rights, the employer has a duty to not discriminate except for Bona Fide Occupational Reasons (BFOR) and, in the absence of a BFOR, a duty to accommodate up to the point of undue hardship. Usually, when an employer learns of a disability, or other protected reason, which limits the full participation of an employee, a good employer will embark upon a course of inquiry to learn about the issue and work with the employee to best meet their challenge and get work done.
However, this is not the end of the story. The BC Court of Appeal in Oak Bay Marina v BC (Human Rights Tribunal) 2002 BCCA 945, noted that when an employer already has sufficient knowledge of the relevant issues, there is no duty to do more.
The court recognized that the common-sense application of obvious facts can make an investigation unnecessary. While employers are fairly warned from acting in ignorance of the facts, employees do not have a free-standing right to demand and receive an investigation.
Furthermore, the failure to investigate is not evidence of a failure to accommodate without more evidence.
The common law duty to investigate is even more limited. Strictly speaking it does not exist. The employer’s duty to an employee is to not breach its contract by wrongfully dismissing an employee.
To put it bluntly, the employer has a duty to itself to be correct. In many situations of misconduct, an employer cannot know for certain if an employee is guilty.
In these cases, the employer is wise to undertake an investigation.
The closer this investigation comes to a proper inquiry, with independent investigators giving all parties a chance to be heard and giving recommendations to decision-makers, the more likely a decision is to be correct and the more likely the employer has protected itself from a wrongful dismissal claim.
This article is scratching the surface of the complex issues surrounding workplace investigations. For more information or answers to specific questions, we recommend you seek independent legal advice.
To Chris’s point, we are fairly fortunate to have such well defined requirements around investigation within most safety related topics. However, as we continue to move forward into new areas of health, safety, and human rights, this will be an interesting area to monitor.
Specializing in Employment and Human Rights law, Chris’ practice involves resolving disputes for both his corporate and individual clients. Chris’s dispute resolution work includes continuous negotiation on behalf of his clients and representing them in various venues ranging from administrative bodies to the courts.
Posted in: Safety Blog