Today’s Labor Updates:

Nova Scotia workplace investigation myths debunked

Board Orders Hospital To Pay Union’s Bargaining Costs

Nova Scotia workplace investigation myths debunked

Kenda Murphy

September 2 2014

As I have begun my workplace investigation practice in Nova Scotia in the last few months, I have encountered some commonly held misconceptions among the employers I’ve spoken with about workplace investigations. These “myths” impact how an employer decides to handle, or more commonly ignore, human rights complaints in the workplace, often to the detriment of the workplace. The most frequent myths that I have heard are:

Myth 1 – We don’t need to investigate

Myth 1 Debunked – The caselaw is clear that when an employer receives a human rights based complaint from an employee, the employer needs to respond by investigating the employee’s allegations. Two Nova Scotia cases bring this to light. In Slaunwhite v. Bay Landing Dining Room and Lounge, 2005 NSHRC 2

the Chair stated at paragraph 100, “The cases are clear; a meaningful investigation is crucial.”

In the July 29, 2014 decision of Rachel Brothers v. Black Educators’ Association, Case Number: 42000-30H07-0129, the Board of Inquiry found at para 77, “The Head Office disregard of the complaints about Ms. Collier’s discriminatory attitudes and behaviour was so complete that it included a failure to even inform the President of the Board of Directors of the problem .”  In this case, the Association was not only aware of the discriminatory attitudes and behaviours but it did nothing to investigate or stop those offensive actions.

The Nova Scotia Human Rights Commission in its Guide to Human Rights in the Workplace, dated June 2009, clearly states that an employer has to “respond to (and address) complaints immediately”. The Guide also tells employers that when matters cannot be resolved informally, there must be a formal complaint process available for an investigation to take place. The Guide’s section 3.3.2 Complaint Procedures for the employer – investigating a complaint sets out the Commission’s expectation. “If the situation cannot be resolved informally, there should be a procedure for filing a formal complaint. It should be investigated either by a specially-trained person within the organization or by an outside person with the necessary skills. This person would investigate the complaint thoroughly and interview the complainant, the alleged harasser, and any witnesses. All employees have a responsibility to cooperate in an investigation.”

In our view, the option for employers responding to human rights complaints is not whether to investigate – they can be penalized if they don’t – but rather, who should investigate, someone internal to the organization or external to it.

Myth 2 – It’s too expensive to use an external investigator!

Myth 2 Debunked – Cost is no small issue when discussing a human rights investigation but there is more at stake than paying for an investigation. Employers must also consider the costs of not investigating: lengthy and expensive litigation; large special damage awards for acting in bad faith; negative messaging to the workforce that they don’t matter; telegraphing to the community that employees and their issues are insignificant; and losing good employees.

Perhaps the greatest cost is losing control of the situation when it moves from an internal complaint to a lawsuit. When an employer becomes aware of a problem and begins an investigation, it signals to all involved that this is something that matters. It also allows an employer to find out what has happened so that the matter can be corrected. Moreover, in hiring an external investigator, it has used expert resources to handle a complaint and hopefully resolve it without further escalation. This also adds to the employer’s ability to defend itself if ever challenged. We believe that using an external investigator is a good use of the employer’s money.

Myth 3 – It is too disruptive

Myth 3 Debunked – Planning the investigation well can lessen disruption in the workplace. Firstly, only those involved in the investigation need to know about it and they are always told that this is a confidential matter and that they are not to talk about it. Secondly, interviewing can take place off site, off hours, or off days. Finally, “water cooler” talk can be more disruptive than anything else so it is better that employees who know that something has occurred also know that the employer is doing something about it.

Myth 4 – It will go away

Myth 4 Debunked – Doing nothing will not make the problem go away and is never advised and never helpful in matters of workplace complaints. Complaints gone unaddressed may result in the following: large damage awards in a lawsuit or human rights complaint; public black eye for its failure to act; and widespread employee fear, anger, low morale, and resignations. Sometimes the hardest thing to do is to look under the rock but it is better to know what you are actually dealing with so that you can name it, resolve it, and positively move forward.

Myth 5 – We are not in the investigation business

Myth 5 Debunked – If you are a large organization and receive a regular stream of complaints, it may be useful to have a designated internal investigator, such as a member of the human resources team. The key here is to make sure that this person knows what they are doing, through proper training and practice, and a well thought out workplace investigation process. Of course, there are times when the facts dictate an external investigation. But, you can choose those cases judiciously when the circumstances truly warrant it.

Takeaways are:

1. Do investigate when a complaint is made;
2. It may not be as expensive as you think if managed well from the outset;
3. Swift action and a well-planned investigation minimize workplace disruption;
4. Failure to act will not make the problem go away; and
5. Make use of well-trained internal resources and processes but know when you require external expertise.

Board Orders Hospital To Pay Union’s Bargaining Costs

By Cary Burke on September 4, 2014

Employers take heed: the Board has signaled that refusing to bargain comes with costs. In Hospital of Barstow, Inc., 361 NLRB No. 34 (Aug. 29, 2014), the National Labor Relations Board found that Barstow Community Hospital violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act by refusing to submit proposals or counterproposals during collective bargaining until it received the Union’s entire contract proposal. The Hospital further violated the Act by declaring impasse and refusing to bargain unless the Union directed unit members to stop documenting purportedly unsafe work situations.

In 2012, the California Nurses Association (the Union) began an organizing drive and won an election to represent the Hospital’s registered nurses.  The Union was certified as the nurses’ bargaining representative on June 29. On August 2, the Hospital unilaterally discontinued its offsite life support training program for nurses.  In place of the offsite program, the Hospital instituted a new training module called HeartCode.  HeartCode is an online self-directed certification program.  Problematically for the Hospital, officials capped the number of paid hours for completing the HeartCode training.  Several nurses failed to complete the HeartCode training module under the time cap and were not paid for the additional hours they spent completing the required training.

The Board found that the unilateral change in employee training violated the Act.  Because the training related to the nurses’ terms and conditions of employment, the change in training to HeartCode was a mandatory subject of bargaining.  Since the change to a capped training affected some nurses’ wages, the change was deemed “material, substantial, and significant” and accordingly violated Sections 8(a)(1) and (a)(5) of the Act.

The decision also took the Hospital to task for refusing to provide any proposals or counterproposals in any of the first five bargaining sessions between the parties because it had not received a full set of proposals from the Union.  While the Hospital did set out some proposals after the Union offered a full contract proposal, the Hospital threatened to stop the bargaining process if the Union did not direct the nurses to cease documenting potentially unsafe working conditions.  The Hospital then declared impasse despite the Union’s open invitation to discuss any matter.

The Hospital’s declaration of impasse and its bargaining in bad faith “directly caused the Union to waste its resources in futile bargaining.”  Moreover, the Hospital’s failure to bargain in good faith took place immediately after the Union was certified as the nurses’ collective-bargaining representative, which the Board considers “a critical period” of time.  The Board thus ordered the Hospital not only to return to the status quo ante, but to reimburse the Union for the expenses it incurred during bargaining, including salaries, travel expenses, and per diems.