Workplace Investigations

Written on behalf of Peter McSherry

Workplace Investigations

There are many circumstances mandating an investigation of workplace issues, including allegations of harassment, discrimination, vandalism, or a safety issue. Employees should be aware that employers are obligated to conduct investigations in certain circumstances, and should understand the basic ins and outs of such investigations.

Human Rights

In any case alleging a human rights violation, the employer has an obligation to conduct a prompt,  effective, and neutral investigation. Where an employer fails to do so, an employee may have grounds to file an action against the employer, and may be entitled to damages. Should the company take no steps in the face of allegations of human rights violations, this could lead to a finding of a “poisoned” workplace, independently of the merits of the assertions of wrongdoing.

If the company take no steps in the face of allegations of human rights violations, this could lead to a finding of a “poisoned” workplace, independently of the merits of the assertions of wrongdoing.

Workplace Violence & Harassment

The Occupational Health and Safety Act in Ontario makes it mandatory for the employer to maintain and implement a policy designed to ensure a workforce remains free from workplace violence and harassment.

The Act makes the investigation of such complaints compulsory. In addition, any policy developed by the company must state how the complaint is to be reported and in what manner the complaint is to be investigated.

Ontario amended this statute as of September 2016 to include “workplace sexual harassment” within the definition of “workplace harassment”.

The amended provisions include the need to have the workplace anti-harassment program provide identity protections to the complainant (unless disclosure is necessary for the investigation or corrective action),to allow for a different reporting mechanism where the supervisor is the alleged harasser, and to further consider how an employee will be advised of the results of the investigation and any corrective action.

In addition, the employer must ensure that an appropriate investigation is conducted of all incidents and complaints of workplace harassment, and that the worker be advised in writing of the results of the investigation and of any corrective action.

Allegations of Serious Misconduct

An employee who has been terminated or otherwise adversely effected by allegations of serious wrongdoing should be treated openly and fairly by his or her employer. This obligation will usually require the employer to conduct a fair, open, and independent investigation of the assertions of wrongdoing.

The failure of the company to do so will provide grounds for an employee to pursue legal action, and will expose the employer to considerable liability for aggravated damages, that is, essentially damages for injured feelings and emotional distress in addition to the possibility of punitive damages, where the conduct may be so severe to be malicious.

All of this is over and above losing a case of just cause which will allow for wrongful dismissal damages for a fair notice period.

If the employer does conduct a fair investigation, such incremental damage sums would not follow. It may still argue cause for dismissal, even unsuccessfully, yet, however, be able to avoid such claims as aggravated and punitive damages. The investigative findings will then allow the employer to show it has acted in good faith in making out its defence of wrongdoing. It does not necessarily mean that it will succeed in its argument of the just cause allegations in court.

Handsome sums have been awarded for aggravated damages such as $200,000^[1], $125,000^[2], $85,000^[3] $75,000^[4], $50,000^[5], $30,000^[6], and $20,000^[7], all of which arose due to the failure of the employer to conduct a proper investigative basis of the just cause allegations. All involved an allegation of serious misconduct which was unproven at trial.

It is without dispute that a fair investigation would have eliminated such additional aggravated damage sums.

It is important to note that such incremental claims are not influenced by an employment contract which may set out a pre-determined severance sum due on termination of employment.

Conclusion

A person making a human rights complaint or a workplace harassment case must be treated fairly by a neutral and independent investigation. Similarly, a person facing allegations of serious wrongdoing must be entitled to the same fair process.

If you are an employee who wishes to file a complaint, or if you are an employee facing an investigation, you are well advised to seek advice from a knowledgeable employment lawyer.

If you have questions about workplace investigations, contact the offices of Guelph employment lawyer Peter McSherry. We regularly advise employees on their rights in the workplace.. Contact us online or by phone at 519-821-5465 to schedule a consultation.

[1] Boucher v Wal-mart Ontario Court of Appeal 2014

[2] City of Calgary v CUPE 2013 The damages in this case were described as general damages but are to the same effect. The case was unusual as all parties agreed that the arbitrator hearing the case as a grievance under the collective agreement was empowered to consider all remedies including human rights, common law and arbitral jurisprudence.

[3] Tl’azt’en First Nation v Joseph, Canada Labour Code Adjudication

[4] Pate v Galway Ontario Superior Court, trial level 2009 on first instance

[5] Downham v Lennox County 2005 Ontario Superior Court

[6] Lau v Royal Bank of Canada B.C. Supreme Court; reversed on appeal 

[7] Chapell v CPR Alberta Queen’s Bench