Duty to conduct workplace investigations increasing
In recent years, there has been a dramatic increase in the role of investigations within HR and employment law. It is well-established that employers have a duty to investigate allegations of misconduct prior to taking disciplinary action. There is also a duty to investigate allegations of harassment or discrimination. There has been much emphasis on the manner of investigating such matters, and the need to be fair and impartial while also acting expeditiously. In the HR Law for HR Professionals course that I created for Osgoode Professional Development several years ago, investigations used to be a small part of one module. They now fill an entire day of the five day course. That is a clear indication of their growing importance.
When our firm advises employers, we consistently tell them that there is a need for fair and impartial investigation of allegations of misconduct. Among other things, employers should never react in haste, or pre-judge the matter and set out to prove misconduct, as opposed to determining what actually happened. An investigation should be a fact-finding exercise and not a prosecution. I have written about this previously in various contexts, including here.
In a recent decision of the Human Rights Tribunal of Ontario, the tribunal commented on what is expected in the context of investigations. The case, Zambito v. LIUNA Local 183 and Central Eastern Canadian Organizing Fund, involved allegations of harassment. The respondent’s in-house lawyer was tasked with conducting the investigation, and in the course of doing so, he interviewed the complainant. His findings included the fact that the complainant was “confrontational and argumentative, and swore during the interview”. He also referenced the complainant’s anger management issues. Ultimately, the complainant was unhappy with the results of the internal investigation, and filed an application with the Human Rights Tribunal alleging, among other things, that the company had discriminated against him by failing to properly investigate his complaint.
In the course of his ruling, the adjudicator referenced the decision from 2005 in Laskowska v. Marineland, in which the tribunal set out three criteria to use in assessing an organization’s response to allegations of discrimination or harassment:
- Awareness of issues of discrimination/harassment, policy, complaint mechanism and training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
- Post-complaint: Seriousness, promptness, taking Care of its employee, investigation and action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and
- Resolution of the complaint (including providing the complainant with a healthy work environment) and communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options—all reasonable—open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably.
This is obviously a fairly general overview, and each case will have to be assessed based upon its own particular circumstances. However, employers may have difficulty demonstrating that they acted reasonably and in good faith if they cannot satisfy these criteria. In addition, they will have to show that they acted fairly and impartially in the conduct of an investigation, and did not jump to conclusions or attempt to prosecute rather than investigate.
This issue has taken on far greater importance in recent years, as our courts have imposed significant damages arising out of the failure to investigate allegations of misconduct fairly and properly. Several of these have been in the six figure range, which is far beyond the traditional amounts for such general damages. As a result, employers that fail to investigate properly expose themselves to liability far beyond the damages that might relate directly to wrongful dismissal, and can increase the costs of dismissal exponentially. For that reason, employers must proceed cautiously when proceeding with any kind of investigation.