Local governments tend to be well versed in the requirement to ensure a safe workplace for employees and, accordingly, to investigate alleged incidences of bullying, harassment, discrimination or other harmful workplace misconduct, in compliance with applicable workers’ compensation and human rights legislation. A failure to investigate could carry with it potential liability for employers.

For public bodies such as local governments, in particular, there may be enhanced scrutiny regarding an employer’s interventions in the face of concerning workplace allegations, given their public-facing functions within the communities they serve. Despite the strong impetus to investigate in the interest of meeting statutory obligations and avoiding liability, investigations are not always appropriate based on the information received by an employer, as was made clear in a recent labour arbitration decision involving a local government, Corporation of the District of West Vancouver v Amalgamated Transit Union, Local 134, CanLII 124405 (the “Decision”).

In the Decision, Arbitrator Sullivan addressed a grievance filed by the Amalgamated Transit Union, Local 135 (the “Union”) against a local government employer, The Corporation of the District of West Vancouver (the “Employer”). Central to the grievance at issue was a privacy dispute involving the Employer’s access to, and retention of, a YouTube video (the “Video”) depicting the Union’s President, Cornel Neagu, making statements intended for members of the Union. The grievance also related to the Employer’s use of the Video for the purposes of an investigation of Mr. Neagu under the Employer’s Respectful Workplace Policy. Arbitrator Sullivan ultimately determined that the Employer was not entitled to retain the Video, and that the Employer’s investigation ought not to have occurred.

Background:

The context of the Video was discussed at length in the Decision and was central to the outcome. Mr. Neagu testified that he had taken the initiative to make resources available to registered Union members on a website, which included the Video at issue in which he engaged in commentary intended for Union members. He was careful to ensure that information on the website was protected from access by others, including by way of privacy warnings on the website and in the Video itself.

Although the Employer did not solicit a copy of the Video, a member of the management team received a link to the Video from a non-unionized employee who apparently wished to remain anonymous, and who mentioned that the contents of the Video may be of concern to the Employer. The Employer thereafter accessed the Video and decided to investigate Mr. Neagu based on his commentary in the Video pursuant to the Employer’s Respectful Workplace Policy. The Employer declined the Union’s requests to delete all copies of the Video, despite the Union’s and Mr. Neagu’s insistence that the Employer’s retention and use of the Video constituted a privacy violation.

Mr. Neagu was thereafter issued a disciplinary sanction based on the Employer’s investigation into his commentary in the Video, and the Union grieved that discipline. The disciplinary grievance was subsequently resolved in a manner that preserved the Union’s ability to pursue a grievance related to the alleged breach of privacy. That privacy grievance was the subject of the Decision.

Parties’ positions:

The Union alleged that the Employer’s’ conduct in accessing the Video and investigating Mr. Neagu contravened the provisions of British Columbia’s Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165 (“FIIPPA”). They also alleged that the Employer had breached a section of the Collective Agreement prohibiting discrimination on the basis of union membership. Lastly, the Union argued that the Employer had contravened Section 6(1) of the British Columbia Labour Relations Code (the “Code”), which prohibits unfair labour practices, including interference with the administration of a trade union. By way of remedy, the Union sought declaratory relief and damages.

The Employer argued that its access to the Video and subsequent investigation of Mr. Neagu were reasonable managerial steps exercised consistently with FIPPA, and that these actions were unrelated to Mr. Neagu’s union membership.

Analysis:

Privacy violation:

The Employer’s collection and retention of the Video was deemed to be in contravention of FIPPA.

The Decision pointed out that a determination as to whether an employer’s collection and use of an employee’s personal information was “necessary” within the meaning of FIPPA requires a balancing of the employee’s privacy rights and the employer’s interests in collecting employee personal information. Arbitrator Sullivan considered the context and concluded that there was no compelling reason for the Employer to have collected Mr. Neagu’s personal information, particularly since the commentary constituted “protected union speech by a union elected official that did not intrude upon the Employer’s legitimate business interests” (para 85).

In the circumstances of the Decision, the fact that the discipline issued to Mr. Neagu had been rescinded did not abrogate from the seriousness of the breach of Mr. Neagu’s privacy. Mr. Neagu had testified as to his view that the Employer’s access to the Video and investigation of Mr. Neagu had caused Union members to be fearful of participating in Union activities. Arbitrator Sullivan noted that “In the context of a labour relations relationship, this is highly sensitive information and, as Mr. Neagu’s evidence establishes, capable of significantly negative impacts on union administration and labour relations” (para 90).

Collective Agreement violation:

Arbitrator Sullivan found that the Employer’s access to the Video and related investigation of Mr. Neagu comprised a violation of the Collective Agreement, which prohibited the Employer from discriminating against any employee on account of their membership in the Union. He also found that the Employer had engaged in an unreasonable exercise of management rights.

While the Decision notes that union members are not immune from discipline while acting within the scope of their union roles, Arbitrator Sullivan pointed out that Mr. Neagu had been “within the four walls of protected union speech and he should not have been investigated based on comments he made in the video” (para 60). The investigation was characterized as “ill founded” and had, according to the Decision, led to “a fearful concern among the members of the Union that they could face retaliation for engaging in legitimate union activity”, despite the discipline associated with the investigation having been repealed (para 64).

Labour Relations Code violation:

The Employer was also found to have violated Section 6(1) of the Code, which prohibits an employer from participating in or interfering with the formation, selection or administration of a trade union. (Although allegations of unfair labour practices contrary to the Code are within the jurisdiction of the BC Labour Relations Board, the matter at hand involved an alleged breach of the Collective Agreement between the parties and the Union’s allegation pursuant to the Code was deemed arbitrable on that basis.)

Remedy:

In considering the appropriate remedy, Arbitrator Sullivan reviewed case law suggesting that an abrogation of union rights warranted an award of damages sufficient to both serve as a deterrent and to amount to more than just an employer’s “cost of doing business” (SRI Homes and USW, Local 1-423 (Unilateral Wage Increase), Re (2024), 2024 CarswellBC 74 at para 98, cited at para 94 of the Decision).

The Union was awarded $30,000 as compensation for the identified breaches. The Employer was also ordered to destroy all copies of the Video, and a declaration was issued setting out that the Employer had violated the Collective Agreement and the Code.

Key takeaways for local government employers:

The foundation for the Union’s allegations in the Decision was the Employer’s access to personal information and subsequent investigation of an employee based on that information. This is a circumstance that inevitably arises for employers when they are faced with a decision as to whether to investigate workplace concerns brought to their attention. Of course, most workplace concerns begin with employers receiving personal information allegedly about one or more employees. Local governments, in particular, tend to deal with a lot of personal information which may be privileged or otherwise protected in some manner, and they also tend to have unionized workforces with the associated protections afforded to union communications. At one point or another, local government employers are likely to find themselves faced with a decision as to whether an investigation is permissible on the basis of personal information they have received.

At the same time, the legal and human resources literature is replete with reminders about the urgent importance of workplace investigations into allegations of issues such as bullying or harassment, and the need to move such investigations forward promptly in the interest of procedural fairness. By comparison, the question of whether an employer can lawfully rely on the information it has received to begin with gets relatively little attention. Indeed, it is critical that employers investigate workplace allegations or concerns in compliance with applicable legislative requirements and their own policies and procedures, and that they do so in a timely manner. However, it is arguably the case that the importance placed on moving an investigation forward promptly could be causing employers to sometimes overlook or underestimate the liability that may result from an improper investigation, or one that should not have occurred in the first place.

The proclivity employers demonstrate towards investigating all allegations of misconduct within the workplace is understandable. A failure to investigate could place employers at significant risk of liability for allegations such as failure to meet statutory requirements, failing to ensure workplace safety, or causing harm to one or more employees. The impulse to investigate is therefore often based on the notion that it is better to have investigated than to have failed to do so when required. This view may even be bolstered by a common sentiment that regardless of the outcome of an investigation, no harm will have been done to the employees by way of their participation. In addition, investigations often precede disciplinary steps, and employers generally aim to demonstrate a sufficient investigatory process leading to any such steps. In other words, the importance of prompt and through investigations is at the forefront of employers’ minds for good reason, despite the fact that a decision to investigate may present risks.

The Decision also highlights that even if information is available to an employer to rely upon for the purposes of an investigation, there are factors that may need to be carefully considered before moving the investigation forward, such as whether the employer would need to step into the shoes of the complainant (if permitted under the applicable policy) and whether the investigation may have a detrimental and/or differential impact on individuals with protected characteristics, such as those belonging to a union or those with characteristics protected under human rights legislation. These are questions that are perhaps easiest to ask prior to an investigation being commenced, rather than during or following the investigation, to ensure risks are identified and appropriately remediated wherever possible.

Considerations prior to investigating:

The Decision serves as a reminder to local government employers of the potential value of careful consideration before an employer relies on information about an employee for the purposes of a workplace investigation. At this juncture, employers faced with the practical realities of their legislative and policy-driven responsibilities and broad investigatory powers may overlook the benefit of a brief pause to consider whether the collection of, or access to, personal information for the purposes of an investigation was lawful in and of itself, and whether an investigation on the basis of that information is appropriate in scope and supported by statutory and policy requirements.

In the lead-up to a potential investigation, employers may wish to take a variety of considerations into account, including but not limited to the following:

1. Is the information that forms the subject of a potential investigation protected in some way, such as privilege or protected union communication?

2. Does it appear that the matter actually impacts the workplace (e.g. employee safety or other legitimate business interests)?

3. Can the employer point to a legislative or policy requirement for pursuing an investigation?

4. Are the allegations squarely within the scope of the employer’s policies and legislative obligations, and are there portions of the allegations which are best left outside the scope of the investigation, due to privilege or some other factor?

5. Even where an investigation is supported, are there steps short of an investigation that may resolve the matter while still meeting legislative and policy requirements?

6. Where an investigation is supported, could it have unduly detrimental consequences on anyone within the workplace and/or lead to differential treatment of anyone on the basis of protected characteristics, such as union membership or protected characteristics under human rights legislation?

7. Does the investigation require the employer to step into the shoes of complainant and are there any concerns that may arise from the employer seeking to advance the matter, rather than at the behest of an individual complainant?

8. Are there any parallel proceedings which may require the investigation to be paused or the scope to be altered?

9. Are there further details that can be lawfully gathered to help the employer determine whether an investigation is warranted?

10. Do the allegations involve off-duty misconduct and, if so, are they sufficiently related to the workplace and/or could they constitute a violation of employee privacy?

11. Are there adjustments that can be made to an employer’s policies and procedures in future that will provide clarity regarding when an investigation will be undertaken and in what manner?

12. Has legal advice been obtained in relation to any concerns with moving an investigation forward?

Conclusion:

The obligation for employers to investigate suspected workplace misconduct in certain circumstances requires that employers view allegations as something of a Schrödinger’s Cat – potentially substantiated and not substantiated at the same time, pending further steps. In this liminal space during which employers assess workplace allegations and decide on the best path forward, employers are often quick to investigate any matter perceived to potentially engage its polices, potentially missing the opportunity to reflect on whether the information is within the employer’s purview to begin with, and whether an investigation is the appropriate intervention.

When in doubt, employers are typically well served to take a reasonable amount of time to consider whether and to what extent an investigation is warranted, and to confer with legal counsel regarding next steps.

Kerri Crawford

Kerri Crawford is a senior labour & employment and human rights lawyer with long-standing experience in municipal law and working for public organizations. Kerri brings a unique and highly valuable blend of expertise to her work for local governments and non-profit and public bodies.