The Policy Exists for a Reason – Pereira v British Columbia WCB

Pereira v British Columbia (Workers’ Compensation Board), 2023 BCCA 195 (CanLII) – Overview

• Ms. Pereira alleged harassment at her job and was disciplined for it.
• She said she was a victim of workplace mobbing.
• She was ultimately terminated.
• Her employer never properly looked into her allegations of harassment and mobbing.
• WorkSafeBC found that her employer did a good job investigating her claims, and there was no evidence to support them.
• The BC Court of Appeal then quashed that decision. The court found that her complaint of mobbing was separate from her complaint of harassment, and should have been treated as such. It needed to be addressed on its own merit.
• Ms. Pereira went on to seek a declaration, which is a kind of discretionary remedy, from the court, but the court refused to provide one.

Why This Decision is Important

The review officer that looked after the initial proceedings found that “while the employer did not follow its procedures precisely, its actions were reasonable.” She found that Ms. Pereira’s bullying and harassment complains were addressed by the employer’s investigation and subsequent undertakings.

The judge at the BC Court of Appeal found that the considerations relied upon by the review officer, when reviewing the WBC investigation, did not support her conclusion that it was reasonable for Dexterra (the employer) not to follow its procedures and properly pursue investigation of Ms. Pereira’s complaint.

Neither the labour relations investigations nor the “whistle blower” investigation were sufficient substitutes for interviews with the employees that Ms. Pereira implicated in workplace mobbing.\

Case Details

Labour law — Workers’ compensation law — Workers’ Compensation Board — Declarations

Outcome

The court quashed the decision of the review officer, and remitted the matter to a new review officer for reconsideration.

Key Takeaways

• Although Dexterra offered several considerations as to why their policies were deviated from, those considerations ultimately could not overcome the fact that they should have followed their policy when investigating Ms. Pereira’s complaints.
• Dexterra relied on the fact that Ms. Pereira was on medical leave for a period of time as a reason for their failure to pursue the mobbing complaint, but that does not explain the failure after she returned to work.
• Dexterra also imposed discipline on Ms. Pereira without obtaining her side of the story, or determining whether she had been the subject of false accusations.
• Dexterra also terminated Ms. Pereira’s employment, and used that as a reason not to investigate the mobbing any further. They also ignored a subsequent whistleblower complaint made by Ms. Pereira after she was terminated.
• The enquiry into whether bullying and harassment were ongoing in the workplace remained pertinent even after Ms. Pereira was terminated.

References

Pereira v British Columbia (Workers’ Compensation Board), 2023 BCCA 195 (CanLII)
https://canlii.ca/t/jx1w2

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