There is no question that workplace investigations are disruptive and difficult for the parties involved. Sometimes parties are removed from the workplace or their duties are modified. Complainants and respondents are often concerned about damage to their reputations and their careers once it is known that a complaint has been made, and that an investigation is being conducted.
Can an investigation ever be shut down in anticipation of this disruption? Can an employer’s intention to conduct an investigation be thwarted by one of the parties involved? Two recent cases from Ontario and the Yukon suggest not, and that seeking an injunction to shut down an investigation altogether, or to modify the party’s status once the investigation is ongoing, will not be a successful strategy. In fact, both cases demonstrate that if an employer can show that it is acting reasonably and in accordance with the law, it will have significant latitude to conduct an investigation as it sees fit.
The first case is Barrick v. Humane Society Yukon. By way of background, the Humane Society had received a complaint from its employees (the case does not specify how many) that the applicants, who were members of the Board, harassed them. The applicants brought an injunction application against the Society to prevent it from investigating the complaint. They argued that the harassment policy under which the investigation would be conducted, had been improperly adopted by the Board. The applicants further argued that they would suffer irreparable harm because their reputations would be damaged and that they would experience anxiety and psychological stress because of the investigation.
Justice Menzies of the Supreme Court of Yukon denied the application and awarded costs to the employer. He noted that in proceeding to investigate the complaint, the Humane Society was “only following through with its responsibilities as an employer”. He added that “an employer facing a complaint of harassment in the workplace…must be seen to take the complaint seriously and to conduct an investigation into the validity of the complaint”. He noted that to delay the investigation of a complaint received by the Humane Society a year ago, was “to do an injustice to the persons having made the complaint”.
The second case is Pierro v. The Hospital for Sick Children, which we wrote about in the workplace investigation alert entitled, The Effect of an Investigation on the Respondent. Here, the applicant sought an injunction to prevent his employer from suspending him while it investigated numerous complaints of harassment against him. The Hospital had evidence that those making the complaints feared reprisal, and so it decided that the investigator would need to gather evidence without interference. The suspension was not a total ban from the workplace. Rather, the applicant was removed from the department he supervised, and from those who had complained. He maintained his hospital privileges with respect to medical appointments. He also continued to be paid.
The applicant argued that the suspension was unnecessary and that once news of it spread, his reputation in the medical world would suffer irreparable damage because it would be “inferred that he (was) guilty of misconduct”.
As with the Humane Society decision, this injunction failed, with costs being awarded to the employer. In language similar to that of Justice Menzies, Justice Akhtar wrote that “…the Hospital is obliged to ensure that its employees can work together in the most harmonious environment possible. Disruption and conflict amongst its employees can only adversely affect the care of patients. Any internal investigation into bullying and harassment, once those allegations are raised, is not only desirable, but in many senses, obligatory”.
There are three key takeaways when we look at these cases together:
First, assuming it is acting reasonably, the employer’s interest and legal obligation to conduct a workplace investigation into harassment complaints appears to override any potential reputational damage to the parties to an investigation. Indeed, these Judges presented an alternative view. They both noted that, if exonerated by the investigation, the reputation of the respondents would not be negatively impacted. Conversely, if there was a negative impact, it was because of the respondents’ conduct, not because of the investigation itself.
Second, given the current legislative framework in which workplace investigations are conducted, employers appear to have significant latitude in how they deal with harassment complaints. In the Humane Society case, the Judge indicates that the application was premature because the investigation had not yet begun. He goes on to say that he believes that the employer will take the necessary procedural steps to ensure that the investigation is fair once it is underway. Similarly, in Pierro, the Judge defers to the employer’s decision to suspend the party, in part, I suspect, because the rationale for doing so had been clearly presented to the Court, and the employer’s actions did not overreach.
Lastly, and this point is made for litigators reading this alert, a litigation strategy in the face of an investigation does not appear to be effective. If you are representing a party who is concerned about his or her status during an investigation, or how it will be conducted, you and your client may be better off negotiating with the employer about the process. For example, specific and context driven precautions can be taken to protect confidentiality and/or both parties can be given additional support to deal with the inevitable stress and anxiety. Bringing an injunction not only undermines the confidentiality of the process as these decisions become public, but they are also expensive, with the losing party picking up much of the tab.
By Janice Rubin
 The author wishes to thank Mark Wallace, counsel to the defendants/respondents in this matter, for providing additional information about this case that is not apparent in the text of it.
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