Investigation Supports Dismissal Motion

In British Columbia, an immediate and effective investigation taken by the employer, followed by appropriate remedial steps may result in the dismissal of the complaint.

A good example of this conduct is the case of McLuckie v London Drugs.  The complainant had alleged a representative of the company and made inappropriate comments about her sexual preference, made other alleged comments which she considered sexual and also inappropriately touched her.

The company investigated the complaint and ordered that the alleged offender be assigned into a different department to avoid direct contact. This action was found to be fair and the complaint was dismissed.

The Tribunal stated the reasons for dismissing the case:

The Tribunal has determined that, in cases where the respondent has taken steps to address the alleged discriminatory conduct, it may not further the purposes of the Code to further process the complaint: Horner v. Concord Security Corporation, 2003 BCHRT 86, paras. 30-32 and Wilkie v. ICBC, 2005 BCHRT 318, paras. 4-6.  In Williamson v. Mount Seymour Park Housing Co-operative and others, 2005 BCHRT 334, the Tribunal explained its reasoning:

A number of common threads can be discerned underlying these decisions.  One has to do with efficiency and avoiding the duplication of resources:  it may not further the purposes of the Code to proceed with a complaint where to do so would result in the unnecessary duplication of the Tribunal’s or the parties’ resources….  A third has to do with encouraging parties to comply with their obligations under the Code without recourse to the Tribunal:  it may not further the purposes of the Code to proceed with a complaint where the underlying dispute has been settled or the respondent has already taken appropriate action to remedy the problem.

B.C. does encourage employers to conduct an immediate investigation and attempt to remedy the unfair conduct. The approach in B.C. is designed to reward the employer for such action by allowing for a dismissal of the complaint.