Catalina Rodriguez

La Ley de Normas Laborales en British Columbia: Información básica

En B.C., los derechos de los trabajadores están protegidos por la Ley llamada Employment Standards Act (“ESA”). Esta ley establece los estándares mínimos que los empleadores deben cumplir en áreas clave como el salario mínimo, las horas de trabajo y las vacaciones pagadas.

Salario Mínimo, Horas de Trabajo y Horas Extras

Una de las disposiciones más importantes de la ESA es la garantía de un salario mínimo para todos los trabajadores. Al 2024, este salario es $17.40. El salario mínimo se establece regularmente mediante legislación y se ajusta para reflejar el costo de vida en la provincia.

Además del salario mínimo, la ESA también regula las horas de trabajo. Establece límites en la cantidad de horas que un empleado puede trabajar en un día y en una semana, así como los períodos de descanso obligatorios entre turnos. En B.C., el día laboral son 8 horas, por las cuales el empleador ha de pagar la remuneración por hora regular. Cualquier hora trabajada luego de 8 horas y menos de 12 horas, debe ser remunerada a la rata de 1.5. el salario regular. Horas trabajadas después de 12 horas, deben ser remuneradas al doble del salario regular.

Vacaciones y Licencias Pagadas

Otro aspecto importante de la ESA es el derecho de los trabajadores a tomar vacaciones pagadas. Según la ley, los empleadores están obligados a otorgar un cierto número de días de vacaciones remuneradas a sus empleados cada año (dos semanas o 4% del sueldo anual, y luego de cumplir 5 años de trabajo, 3 semanas o 6% del sueldo anual).

Además de las vacaciones pagadas, la ESA también establece licencias pagadas y no pagadas por motivos como enfermedad, maternidad o paternidad, y cuidado de familiares enfermos.

Cumplimiento y Protección

Para garantizar el cumplimiento de la ESA, el gobierno de B.C. cuenta con un sistema de aplicación de la ley. Los inspectores laborales tienen la autoridad para investigar denuncias de violaciones de los estándares laborales y tomar medidas correctivas cuando sea necesario. Además, los trabajadores que sientan que sus derechos han sido infringidos tienen el derecho de presentar quejas y buscar compensación.

Catalina es abogada especializada en derecho laboral in B.C. y regularmente asiste tanto a compañías como a empleados. También es mediadora e investigadora en asuntos laborales.

Este blog provee información general y no constituye asesoría jurídica. Cada situación debe ser evaluada en contexto. Necesita asesoría en materia laboral en Español? Catalina puede ayudar. Llamenos al (604) 535-7063 o escribanos [email protected].

Employment Law, Legal Advice

Breaking Down Emotional Barriers to Conflict Resolution: How a Mediator Can Help

In a previous blog, I posted about debunking mediation myths in which I explored one of the emotional barriers to mediation – a feeling that agreeing to mediation is a sign of “weakness.” I have been pondering a lot about other emotional barriers to conflict resolution, this time, during the mediation itself. Agreement to mediate is a great first step, but getting to a deal will take work during the mediation process and mediators can assist with navigating the difficult emotions that often arise. For represented parties, legal counsel has also a vital role to play in ensuring the parties feel comfortable and trust the process.

1. Anger and Resentment

These are common emotions that surround unresolved conflicts. Left unchecked, anger and resentment can escalate tensions and derail productive dialogue. These feelings can sometimes even transfer to legal counsel representing the parties. While emotions are allowed and can be necessary and productive at mediation, a mediator can, and should, defuse a volatile situation and create a safe, supportive environment for communication. One of the ways I do this is by creating rules of engagement that both parties can agree on, taking a break when those rules have been breached and speaking to the parties separately, as well as encouraging mutual active listening.

2. Fear and Uncertainty

Fear of loss, rejection, or further conflict are common during mediations. Parties may be hesitant to express their true feelings or needs due to fear of vulnerability or judgement. I help alleviate fear and uncertainty by providing clear guidance and reassurance throughout the process. By outlining the mediation process, setting expectations, addressing concerns and reminding the parties that they are empowered to come up with solutions in a safe forum, mediators can help parties feel more comfortable to participate fully.

3. Lack of Trust

Trust is essential for effective mediation, yet it can be challenging to establish, especially in high-conflict situations where parties come to the table with feelings of having been betrayed or wronged. Sometimes, the very purpose of the mediation is to rebuild that trust. I work towards rebuilding the trust between parties by creating a process they can trust, as a starting point. Also, by demonstrating impartiality, confidentiality, and empathy, and by inviting the parties to actively listen to each other’s perspective. I have found it common that parties have been unaware of each other’s perspective until they hear it for the first time during a mediation or read the other party’s mediation brief.

A mediator can skillfully validate concerns and reframe contentious issues in a neutral manner to foster trust and credibility. Sometimes though, as in the case of many employment disputes under litigation where there is no longer an active employment relationship, the purpose of the mediation is not to build trust for an ongoing relationship, but to work towards a resolution that puts an end to the existing litigation. By assisting the parties to stay focused on outcomes and evaluate their best alternative to a negotiated resolution, a mediation can be successful in reaching a lasting resolution of the issues even when the trust is not restored.

4. Resistance to Change

Embracing change can be daunting, especially when it involves letting go of deeply held beliefs, values, or expectations. Parties may resist proposed solutions out of fear of the unknown or reluctance to relinquish control. One of the very first mediations I did back in 1999 as a law student in Bogota involved a man who had loaned money to a woman. He went to see her several times per week to ask for the money back. She felt harassed and overwhelmed. When speaking to the man alone in a breakout room, he shared with me that those visits to discuss loan collection had become part of his routine. He was a retiree, and he was lonely. Any resolution meant his routine would change and he would have to let go of seeing the woman. He did not want change and his reluctance to change was a barrier to resolution. As a mediator, I can assist parties overcome resistance to change by reframing perspectives, exploring alternative options, asking questions and highlighting the potential benefits of resolution.

Emotional barriers are inherent in mediation, but they can be overcome. With the guidance of a skilled and empathetic mediator, parties can navigate their emotions, overcome obstacles, and find meaningful resolution to their conflicts.

Thinking about mediation? Forte Workplace Law has a growing mediation practice with mediators Sara Forte, Catalina Rodriguez and Jess Hadley. Contact us for details on our offerings and availability: [email protected] or call us 604-535-7063. This blog is not intended to serve as legal advice, and only provides general information.

Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Employment Law

Mediation Myths

Thinking about mediation? There are many misconceptions and misunderstandings that can be a barrier to mediation. And many of them are myths! In my practice as counsel and a mediator, here are five common myths I hear regularly:

1. Agreeing to mediation is “a sign of weakness.”

It is not a sign of weakness to agree to mediate! No matter how strong your case is (as to the facts, the law, or the intensity of your emotions), a settlement in which you had a say is always better than a decision made by a judge months and months down the road, with piling legal fees. There are also mediations called on one party to the other via a Notice to Mediate. In that case, not attending a mediation has procedural consequences for your court case.

2. Mediations are only about money.

They can be about money, but most mediations are about more than that. There is no denying that some mediations can feel very transactional and can focus solely on an exchange of money offers. However, many meditations are truly transformative for those in attendance. Mediations of workplace conflict between colleagues make a significant difference to those involved, and they seldom include money exchanges.

3. What I say at a mediation might be used against me.

Not so! Discussions during mediation are confidential and the parties cannot rely on their exchanges further down the road as evidence of liability. The mediator will ask the parties to agree to confidentiality in the agreement to mediate.

4. The mediator might not think I have a good case.

The mediator will be a facilitator for the parties to reach a mutually agreed on settlement. Some mediators can assist the parties with an evaluation of the strength or weakness of their case. If the mediator is an expert in the area of the law, an evaluation of the parties’ case maybe very useful to assess risk and best and worst alternatives to a settlement. Yet, the mediator is not a judge and does not provide legal advice or make any decisions.

5. I have to sit in a room with the other side.

Not necessarily. Mediations can also take place in two different rooms (either physical rooms, or zoom rooms), with the mediator “shuttling” back and forth between the two rooms. A trauma-informed mediator will fully assess the best format with the parties in pre-mediation calls.

Thinking about mediation? Forte Workplace Law has a growing mediation practice. Contact us for details on our offerings and availability: [email protected] or call us 604-535-7063. This blog is not intended to serve as legal advice, and only provides general information.

Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.

Employment Law

What is Mediation?

Has your lawyer or employer suggested mediation of your legal case or conflict? Understanding what mediation is (and is not) is the first step to an informed decision.

Empowerment & Recognition

Mediation is generally defined as an informal process in which a neutral party with no power to impose a resolution helps the disputing parties try to reach a mutually acceptable settlement. While this quick definition describes the major features of the process, it does not in my view, fully account for the potential that mediation has of transforming people.

By the mediator helping the parties wrestle with difficult circumstances and bridge differences in the midst of conflict, mediation has the potential to provide the parties with a sense of empowerment and recognition. Empowerment comes from restoring the parties’ confidence in their ability to resolve their own issues. Recognition comes from the impartial listening by the mediator, and it is often the by-product of the process itself, when the parties acknowledge the view of each other.

A Day Dedicated to Sorting Things Out

My years of practice as in-house counsel, head of employee relations and lawyer in private practice, had me attend multiple mediations. On some, I have been counsel for one of the parties. On some, I have been a party. Recently, I started a mediation practice. What I enjoyed the most out of mediations as a party or counsel, is the fact that it is a day dedicated to sorting things out.

Lingering conflict finally has a forum – a time and a place – to be dealt with. And even when there was no settlement, much can be accomplished by understanding the other side’s view of the issues and uncovering the interests behind their requests. As a mediator, what I enjoy the most is the unfolding of interests and seeing the parties through to the other side of conflict. I particularly enjoy when creative and unexpected solutions are proposed, and when there are wholehearted efforts at reaching a settlement.

Mediators are Not Judges

One thing you will not get from a mediation is a decision by the mediator about who is right and who is wrong. Judges decide disputes and make decisions. Mediators facilitate negotiations and agreements between the parties. This is a key difference to understand before agreeing to mediate – there is no winner and no looser.

Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.

Constructive Dismissal, Employment Law, Human Rights, Maternity leave

Four Things to Consider When Adopting a Parental Leave Policy

Employers typically consider maternity and parental leave policies when they want to incentivize employees to return from their leaves after having a child, and also when they realize that supporting their employees financially while on a period of a reduced income makes sense for long term employment relationship. Particularly, in the current Canadian job market which has been described as a “candidate” job market. Here are four things to keep in mind:

1. Is a policy necessary?

Unless there is anything additional or extra that you are providing your employees, your workers may already be protected by B.C.’s Employment Standards Act (the “Act”) (see sections 50 and 51), and the Employment Insurance (EI) regime. If your workforce is excluded from the Act (as are architects, engineers, lawyers, naturopaths, insurance agents, and others) you can still use the Act as a reference for how to manage these types of leaves[i].

2. What you need to know to get started.

If you decide that your organization needs a policy, make sure you understand the difference between:

1. Maternity Leave, which includes an EI benefit maximum of 17 weeks. This benefit is for the person who is about to, or has, given birth; and
2. Parental Leave, which includes an EI benefit maximum of 35 weeks (“standard”) or a maximum of 61 weeks (“extended”). This benefit is for either parent, or for adoptive parents.

Keep in mind that the parental leave can be taken once the maternity leave has expired, turning the standard leave into 52 weeks, and the extended leave into 78 weeks (18 months). Also keep in mind that Parental leave can be taken at any time within the first 18 months of the child’s life, or the first 18 months of the child being placed with the adoptive family.

3. Will you top up?

If you are providing your employees with a supplementary amount to their EI benefit, or “Top-UP” a policy is definitely recommended. Consider:

a. The reasons behind providing the Top-Up. If your goal is to incentivize parents to return from the leave and to stay with your organization, say so in the policy. Also, a repayment clause may be appropriate. For instance, “should you resign during the leave, or in a period of 6 months from your return from leave, you will repay the amount of the Top-Up in full”.

b. The amount of the Top-Up. Crunch the numbers and determine how much you can afford and for how long you will provide the Top-Up. Also consider what your competitors are doing. Some employers provide 60% of the difference between the employees’ pay and the EI benefit. Others provide much higher percentages, with some employers toping up to 100% of the wages. The period of time can also vary from 6 weeks on the lower end, to the full 78 weeks at the higher end, with most employers capping the top up somewhere between 35 weeks and 52 weeks. Because you will need to know how much the employee is receiving in EI to calculate the Top-Up amount, it makes sense for you to make the employee’s receipt of the Top-Up on the condition that they receive EI.

c. The eligibility for the Top-Up. Is this something you want to provide to all employees as of day one? Or something you want to reserve for your permanent full-time employees with a certain amount seniority? Since this is not a benefit that is required under the Act, you have flexibility as to who gets it and when, as long as you are not running afoul of the B.C. Human Rights Code.

4. What should happen while the employee is away.

If your workforce is covered by the Act, then you need to ensure to continue to calculate annual vacation, to continue benefits and to count their time away to their length of service with your organization, as if the employee was actively at work during that time. If the employee paid some of the premiums for the benefits, you can arrange for the payments to continue to be made by the employee while they are on leave.

Also, upon the end of the leave, employers have an obligation to provide the employee with their same position or an equivalent one. Make sure that anyone you hire to cover the employee that is on leave is hired under a temporary employment agreement with a notice of termination provision that allows you to welcome the employee on leave back without delay.

[i] The information in this blog applies to workplaces that are provincially regulated and does not apply to workplaces that are federally regulated (i.e. banking, shipping, telecommunications) and covered under the Canada Labour Code (“CLC”). The maternity and parental provisions of the CLC are similar to those of the Act, and can be found at sections 206, and 206 of the CLC.

Covid-19, Employment Law, Wrongful Dismissal

Workplace investigations under the Canada Labour Code

Federally-regulated employers (which include banks, airlines, transportation and telecommunication companies amongst others) had to adjust to new ways of dealing with harassment, bullying, discrimination and workplace violence allegations as of January 1, 2021, with the enactment of the Workplace Harassment and Violence Prevention Regulations under the Canada Labour Code.

Federally-regulated employers have always had an obligation to investigate complaints, but there are some new and challenging requirements of the 2021 Regulation. These include:

1. Prescribed timelines.

These timelines are not too tight, but having to keep an eye on them is an adjustment. For instance, acknowledging receipt of the concerns within 7 days, starting the investigation within 45 days, keeping the parties informed of the status of the investigation with monthly updates, and completing the investigation within a year. The kicker is, the one year includes fully implementing any recommendations from an investigator’s report. Depending on how detailed those recommendations are, and the size of the workforce or the amount of people involved, one year may be a tight deadline.

2. Representation.

Non-unionized employers will have to remember to inform the parties that they may be represented through the investigation process, and not panic if the respondent brings legal counsel to the interview.

3. Expertise.

If you are investigating, you must be an expert. HR folks take note. The Regulations require you to be trained in investigative techniques, and that you know the law, both the Canada Labour Code and the Canadian Human Rights Act.

4. Appointment process.

Who gets to investigate is now subject to approval by the policy committee in your organization, or by the health and safety representative (referred to by the Regulation as the “Applicable Partner”). You can develop a list of investigator names and have that list approved by the Applicable Partner, so all your internal investigations people can continue to do their job as they were before. If you don’t create that list, the Regulations give the complainant and the respondent the prerogative of choosing who investigates, though they must agree on a name. From a practical perspective, this last option can be difficult to implement. These are two people who no longer see eye to eye, and it is unlikely they will agree on the issue of appointing an investigator. If the parties can’t agree, the government can provide an investigator from their own list of experts.

5. Conciliation.

You have to offer the parties an alternative to a formal investigation. The Regulation speaks of resolution via “conciliation”. The term is not defined by the Regulation, though is generally understood to mean a way of resolving a dispute with the assistance of a third party. Some employers are wondering what exactly is expected, and what the costs would be to hire external conciliators or train their own HR on conciliation techniques. When the allegations are related to sexual harassment, it is important to carefully consider how an offer of conciliation will made, what the format of that conciliation would be, and how it could be triggering or re-traumatizing for the complainant.

6. Former employees can bring complaints too.

They have 3 months to do so after the end of their employment. However, employers need to remember that their obligations to investigate concerns do not arise only under the Canada Labour Code. There is the possibility of liability under the Canadian Human Rights Act for not investigating, even if the employee is no longer with the organization, or has left longer than 3 months ago.

7. The content of the investigation report is now prescribed.

The report has to mention the circumstances in the workplace that contributed to the harassment and make recommendations on how to prevent similar occurrences (so investigators have to put their minds to systemic and workplace culture issues). Reports must not reveal the identity of the parties and a copy must be provided to both the complainant and the respondent, as well as to the Applicable Partner. Investigators need to be very cautious in their writing of the report. Sometimes the most careful of redactions can still reveal enough information that any of the recipients could piece together on who did what to whom and when and who testified against them. Describing titles, relationships or departments/locations in the report may reveal the identity of the parties. The employer must keep a copy of the report for a period of 10 years, which is longer than the regular 7-year period for business records, so make sure you make the necessary arrangements to avoid premature destruction.

8. Government reporting.

If you were already keeping solid records of all the concerns brought forward by employees, or your HR management system already provides you with case management and fulsome data in relation to concerns, congratulations. You may be halfway there. In addition to the already existing requirement to submit annual reports on all hazardous occurrences in the workplace, the government is now looking for the following things by March of each year:

the total number of occurrences,
the number of occurrences that were related to sexual harassment and violence and non-sexual harassment and violence,
the number of occurrences that resulted in the death of an employee,
if known, the number of occurrences that fell under each prohibited ground of discrimination set out in subsection 3(1) of the Canadian Human Rights Act,
the locations where the occurrences took place, specifying the total number of occurrences that took place in each location,
the types of professional relationships that existed between the complainant and respondent, specifying the total number for each type,
the means by which resolution processes were completed and, for each of those means, the number of occurrences involved, and
the average time, expressed in months, that it took to complete the resolution process for an occurrence.

9. Penalties for non-compliance.

HR and management in charge of workplace investigations need to pay close attention to the new requirements in the Regulation and adjust their investigations and related processes accordingly. The government has a non-compliance approach that always starts with a request to voluntarily comply. Continuous non- compliance will lead to monetary penalties and the publication of the employer’s name in certain circumstances.

Catalina Rodriguez has experience as a workplace investigator in the Federal sector.

Legal Advice

Is your lawyer a great coach?

I am a shameless advocate for coaching. I graduated some years ago from a coaching certificate at UBC and came out transformed. So much so that I now believe everyone should become a coach and that everyone would benefit from coaching. It would be the first step towards a conflict- free workplace. Which would perhaps mean that there will be no need for employment lawyers and leave me unemployed. But I digress.

Coaching helped me to approach difficult conversations, client management, and workplace investigations. Knowing the basics of coaching can transform the lawyer-client relationship.

A great coach listens. Intently.

A great lawyer will do the same and will work to understand the reality of what their client is experiencing.

A great coach asks powerful questions.

A great lawyer, through both open and closed questions, will get to a deeper understanding of their clients’ intentions. This can be as simple as asking “why?” more than once. An example of this is the client who says they want their job back and is asking the lawyer to press for this. Ask them “why?” and then listen. By doing so you may find that they are underestimating their transferable skills, have lost their sense of value, or are afraid of change. A great lawyer uses the power of questioning to explore what is beneath the surface of their client’s needs and motivation. In doing so they ensure they can build strategy that will stand the test of time.

A great coach practices reflective listening.

It has been proven time and again that reflecting back what someone tells you is a powerful way to make sure you understand, and to ensure people felt heard and understood. This will ensure that the trust required between lawyer and client is built on solid foundation of common ground and trust.

A great coach sees the client as capable of resolving their situation.

While people seek legal advice for the lawyer’s expertise, sometimes all they need is information to even the playing field, and an objective sounding board. A great lawyer will agree with the client how much of the lawyer’s involvement is required, on what capacity, and how much the client can, or wants, to achieve on their own.

A great coach acknowledges the emotions in the room.

Sometimes this is just saying “I can hear it in your voice that this has been very difficult for you”. Long gone should be the days where lawyers complain that what their client needs most is “a psychologist and not a lawyer”, or that the practice of law “would be great if it wasn’t for the clients”. Excuse me while I gasp for breath … really? A great lawyer knows the work of accepting difficult emotions. They coach themselves in how to navigate the range of emotions we all experience as human beings.

A great coach calls you on your B.S.

A great lawyer does too. And not just on the obvious legal mis- compliance issues, but on the blind spots in how the client is managing their business or their situation. I tell clients from the outset that they will get straightforward advice from me without sugar-coating. So far, it has always been appreciated.

A coaching approach is not for every lawyer-client relationship, but in employment law, which is entirely people-centered, it is a great added value to get the most out of your legal fees.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Human Rights, Workplace Harassment, Workplace Investigations

Four reasons to investigate a complaint – even if the employee has quit

We regularly are asked by our employer clients, if an employee makes a complaint and then quits, should we still investigate? Looking into complaints can be messy and stressful, so it is tempting to decide you are off the hook. What about if a complaint of harassment, bullying or discrimination is made by someone who has quit against someone who is still employed? Here are four reasons why the answer is yes, you need to investigate:

To uncover festering issues.

An investigation may uncover poor leadership, or a “bully” that has gone under the radar for some time. Consider the scenario where a young, short-term employee had handed in his resignation and a complaint about bullying by his supervisor. An investigation after he left unearthed issues with the supervisor that had been experienced by others for over 3 years, with no one coming forward. This supervisor had caused disengagement, lack of productivity and a string of resignations.

To comply with obligations under Health and Safety legislation.

There is an obligation for employers under the B.C Worker’s Compensation Act, to maintain a harassment-free workplace. The WorkSafe BC website has FAQ’s to explain how WorkSafe BC will handle a complaint of harassment and when they will contact the employer. In short, WorkSafe BC will ask an employer to investigate a concern, and WorkSafe BC will want to ensure that the employer has a harassment policy, and follows it.

To comply with obligations under the Canada Labour Code.

For federally-regulated organizations, under recent changes to the Canada Labour Code that came into effect January 1, 2021, there is a requirement to investigate concerns raised by former employees that are made known to the employer within three months after the day on which the former employee ceased to be an employee. The Minister may extend that time period if the former employee demonstrates that they were not able to bring the concern forward within that time frame because of trauma as a result of the occurrence or because of a medical condition.

To comply with obligations under Human Rights laws.

The Canadian Human Rights Tribunal issued a decision finding an employer liable for harassment experienced by former employee at the hands of a current employee. In Duverger v. 2553-4330 Québec Inc. (Aéropro), 2019 CHRT 18 (CanLII), the Tribunal considered harassing emails by an Aéropro employee, via his personal email address, to a former employee. The emails were highly offensive and full of hatred. One of the questions before the Tribunal was whether this constituted harassment “related to employment” considering it took place after the victim’s employment had ended. The Tribunal ruled there was enough connection to the workplace in the relationship, and that the email address used for the harassing emails, though personal, had been regularly used by the respondent employee for workplace matters. The Aéropro managers who were aware of the harassing emails were found to not have done enough to investigate the issue or prevent it. The company was found responsible for the harassment.

It is important to note that the Canadian Human Rights Act applies only to federally-regulated employers. Each province has its own human rights laws and the result of a case such as this one may vary depending on the text of the provincial legislation. It will be interesting to see if the decision in Duverger will be followed by provincial Tribunals.

What if the complaint is made by a current employee about a former employee?

You may still have an obligation to investigate a complaint about a former employee for many of the same reasons stated above. WorkSafe BC may require an investigation. However, you may be faced with these practical issues:

You can’t reach the former employee (respondent). If they refuse to speak to you about the complaint, there is not much you can do. Employment obligations mandating cooperation in an investigation no longer apply to a former employee. An investigation is not yet a legal proceeding for which the employer could use a subpoena. You may find yourself unable to conduct a full investigation, left only with the complainant’s side of the story, from which you would have to make decisions.

The complainant may end up dropping the complaint. Good news, right? Depending on the circumstances, the complainant may realize over time that once the respondent leaves the organization, things improve. I once investigated a concern by a complainant who kept bringing issues related to a former executive who was no longer with the organization. At the heart of her concerns was the need to be heard, and the need to ensure no one else would go through what she did. She was also very concerned that HR had not done enough at the relevant time. It was only when she felt that she had been heard that she agreed that the complaint was over.

The bottom line is that even if one of the employees involved in a complaint has quit, employers still need to look at the situation carefully as an investigation may be needed.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Workplace Investigations

Trauma-Informed Workplace Investigations – Five lessons from the trenches

In my years of experience as a workplace investigator in-house for a large organization and in my current role as an external investigator, I have learned some hard lessons on what not to do when conducting an investigation. At Forte Law, a trauma-informed approach is not a nice-to-have, but a must have, and this can very easily be lost by a busy investigator under pressure to get an investigation done as soon as possible. Here are 5 traps to avoid so you can maintain a trauma-informed workplace investigation:

Do not send a cold email on a Friday, to interview a party after the weekend. This may seem obvious, but when you are looking at your remaining to-do list, it is an easy trap to fall in. You will be causing a great deal of unnecessary anxiety. The recipient will be wondering and filling in the blanks throughout the weekend, and likely come to the interview stressed and triggered. Being trauma-informed means providing the parties with control over what is possible. The time and date of when to meet can be one of those things. Pick up the phone, introduce yourself (or ensure the proper party within the organization has introduced you in advance), and discuss times to meet that are comfortable to the person you will be interviewing.
Do not come into the interview scattered or upset. Check in with yourself before each interview meeting. Are you calm? Are you angry about something else? Will you be able to be fully present? Have you made up your mind based on the facts you available to you so far, that the person you will be speaking to is unlikeable? Take a moment to meditate and to connect with the emotions in your body. Make sure you are able to remain objective during the interview. You may be triggered by things mentioned during the interview. Will you have the ability to not react? Learning how to place distance between triggers and your reaction takes practice. So, practice, practice, practice. Your brain can create new connections and works like a muscle. It needs to be trained!
Do not let the person you are interviewing quit during the meeting. If the person you are interviewing is so upset that they decide to communicate to you that they are resigning, make sure to ask them to think about it carefully, to not rush, and acknowledge the difficulty they are experiencing. Depending on your role (as either an external or an internal investigator), you may not be in a position to accept the resignation anyways, and there are legal consequences to accepting a decision to resign that was evidently made in the “heat of the moment.”
Don’t forget to manage expectations from the beginning. It is surprising what people expect out of making a complaint. There is the misconception that raising a concern should automatically lead to the complainant’s version of events to be believed, that it should lead to the respondent’s termination of employment within a couple of days, and that there will be monetary compensation to the complainant for their negative experience. Respondents sometimes also believe that if there is no consequence for them or their version of events is preferred over that of the complainant, that this automatically means that the complainant brought the concern in bad faith, lied and should be terminated. Outlining to each party the possible outcomes and the privacy restrictions associated with fully disclosing the details of any disciplinary consequence, is very important. An investigation typically results in a “winning” and a “losing” party. Someone is not going to be happy with the outcome. Managing expectations will assist in allowing the parties to move on once the process is over and will diminish the likelihood of litigation.
Don’t forget your terms of reference, or what your mandate is. You can be kind and compassionate yet know your role. As an investigator, you may create the type of bond with the parties that lead them to believe you can resolve other issues they are facing in the workplace. It is important to be clear on the scope and the limitations of the investigation and refer the parties to the proper contacts for issues unrelated to the investigation.

Author: Catalina Rodriguez

La Ley de Normas Laborales en British Columbia: Información básica

Breaking Down Emotional Barriers to Conflict Resolution: How a Mediator Can Help

Mediation Myths

What is Mediation?

Four Things to Consider When Adopting a Parental Leave Policy

1. Is a policy necessary?

2. What you need to know to get started.

3. Will you top up?

4. What should happen while the employee is away.

Workplace investigations under the Canada Labour Code

1. Prescribed timelines.

2. Representation.

3. Expertise.

4. Appointment process.

5. Conciliation.

6. Former employees can bring complaints too.

7. The content of the investigation report is now prescribed.

8. Government reporting.

9. Penalties for non-compliance.

Is your lawyer a great coach?

A great coach listens. Intently.

A great coach asks powerful questions.

A great coach practices reflective listening.

A great coach sees the client as capable of resolving their situation.

A great coach acknowledges the emotions in the room.

A great coach calls you on your B.S.

Four reasons to investigate a complaint – even if the employee has quit

To uncover festering issues.

To comply with obligations under Health and Safety legislation.

To comply with obligations under the Canada Labour Code.

To comply with obligations under Human Rights laws.

What if the complaint is made by a current employee about a former employee?

Trauma-Informed Workplace Investigations – Five lessons from the trenches