Harassment protections are designed to encourage complainants to bring forward allegations in good faith without fear of reprisal. However, we are increasingly seeing some complainants bring forward “bad faith” complaints which use investigation processes to annoy, vex, or drain the time and resources of a respondent, rather than raise legitimate concerns.
Bad faith complaints are distinguished from complaints that could not be sustained, were made in error, or resulted from misunderstandings. A bad faith complaint requires more than a complainant being “wrong” about an event and instead “embraces such concepts as improper motive, dishonesty, recklessness and gross negligence” 1. One case described trivial, frivolous, and/or vexatious complaints as follows:
For the complaint to be trivial or frivolous, the issues must be unimportant, petty, silly, or insignificant enough to be a waste of the tribunal’s time. In addition, a complaint completely without factual or legal basis might be considered trivial or frivolous. A vexatious complaint is one that aims to harass, annoy, or drain the resources of the person complained against 2.
For example, in Health Sciences Association of Alberta v Capital Care Group 3, a complainant took the position her supervisor’s “active” management style constituted “threats of physical aggression”. For example, the complainant alleged that during one meeting, she was required to put her hands up because the supervisor was “scaring her” and “she thought he was going to strike her”. However, in contemporaneous notes, the complainant did not suggest she felt physically at risk. In finding that the complainant brought her allegations in bad faith, the arbitrator concluded the manager’s work-related feedback was “legitimate” and characterized the complainant’s allegations as “exaggerated” and “inflated”. The arbitrator also found the employee’s allegations, many of which contained speculations asserted as facts, to be “unsupported” and “inconsistent” with the preponderance of witness testimony. The arbitrator then dismissed the complainant’s position that her allegations were based on honestly held beliefs, finding that perceptions “must be reasonable and must be based on the truth…to do so otherwise would absolve inappropriate conduct merely because a person states they firmly held their perceptions to be accurate”.
Similarly, in Jenks v MacLean et al 4, the BC Human Rights Tribunal found a complainant mischaracterized “neutral” workplace conduct as sexual harassment by, for example, suggesting a respondent touched a stapler in a “sexually suggestive manner” and adjusted his waistband because “he wanted sex”. However, this complainant had also been contemporaneously e-mailing a friend and described her working experience as “hopeful”. Given the complainant’s e-mails never mentioned sexual harassment, the Tribunal concluded her allegations were “malicious” and “intended to destroy the reputation of the Respondents”.
With appropriate intervention and planning, employers can take steps to avoid or dissuade employees from filing malicious complaints, such as:
- Updating harassment policies to include prohibitions on malicious, vexatious, and/or bad faith complaints, with clear disciplinary consequences for employees who raise bad faith complaints.
- Organizing regular training sessions with employees on what does and does not constitute harassment.
- Implementing various of conflict resolution procedures (i.e. third party facilitation) to address and manage workplace conflicts before they escalate.
- Conducting threshold assessment prior to investigations to determine whether complaints, on their face, meet the applicable legal thresholds to constitute harassment.
While no single action or group of actions will prevent bad faith complaints in their entirety, these steps could save organizations the time and resources needed to investigate malicious complaints, and avoid the corresponding negative impact that workplace investigations can have on employee morale.
Written By: Jeff Rochwerg
[1] Cooper Industries (Electrical) Inc v United Steelworkers, Local 9042, 2015 CanLII 35428 (ON LA).
[2] Potocnik v Thunder Bay (City) (No. 5), 1997 CanLII 24818 (ON HRT).
[3] 2018 CanLII 105101 (AB GAA).
[4] 2003 BCHRT 48.
