Canada: The Benefits Of Proactive Responses To Complaints Of Workplace Discrimination: Lessons From The Alberta Human Rights Commission

A recent decision out of Alberta¹ details the value of proactive employer responses to claims of workplace discrimination as a defence to human rights complaints.

Background

The Complainant was a truck driver for a third party.  In the performance of his duties for his employer, he often came into contact with employees of the Respondent.  During these interactions, and over the course of a number of months, one of the Respondent's employees was alleged to have made repeated derogatory remarks to the Complainant relating to his ancestry and place of origin.

When the Respondent became aware of the actions of its employee in November 2015, it took immediate steps to address  the matter.  Specifically, it: removed the employee from the worksite; commenced a formal investigation; concluded – following the completion of the investigation – that its employee had breached its workplace anti-harassment and discrimination policy; terminated his employment; and issued an apology to the Complainant.

The Complaint and Initial Dismissal

In March 2016, the Complainant filed a human rights complaint alleging discrimination by the Respondent on the basis of ancestry and place of origin.  The Respondent sought to have the complaint dismissed on a number of grounds, including that its actions in late 2015 adequately remedied the improper conduct of its employee.

In May 2018, the Director of the Alberta Human Rights Commission, in conjunction with a Commission-assigned investigator, dismissed the complaint, finding that the Respondent was neither an employer nor a service provider to the Complainant, and also that the Respondent's actions had addressed the discrimination.

Request for Review

The Complainant requested a review of the dismissal of his complaint by Chief of the Commission and Tribunals (the "Chief").

On March 7, 2019 the Chief confirmed the dismissal of the complaint on the basis that the Respondent's actions appropriately addressed the substance of the complaint such that there was no reasonable basis to proceed to a full hearing.

In coming to this conclusion, the Chief highlighted the Respondent's policy, the thoroughness of the investigation, the implementation of the recommendations and the provision of an apology to the Complainant and observed:

[19]      Without putting too fine a point on it, the respondent acted exactly how one would hope a responsible employer, respecting its obligations under the [Alberta Human Rights Act] would act.

Lessons for Employers

This decision, in addition to representing a positive outcome for the Respondent and a positive recognition of the steps taken by it upon becoming aware of the allegations of misconduct in its workplace, serves as a strong reminder of the value of having proper workplace policies in place, and conducting thorough, detailed and timely investigations.

The Respondent was successful in this case, not because its former employee's actions were found not to be discriminatory, but rather because the Respondent took immediate steps to respond to those actions and in so doing, affirmed its commitment to maintaining a harassment and discrimination free work environment.

Employers would be well served to use this case as a guiding example when faced with complaints of workplace misconduct, and to remember that investigations, while they can be challenging and time-consuming, can pay significant dividends in the long run.

Footnote 

1 Sandu v. Black & McDonald Limited, March 7, 2019

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