False Harassment Claim Warrants Discharge

While it may be foolish for an employer to take a complaint of harassment or bullying lightly, it is equally unwise to assume that all complainants are making claims for legitimate reasons.  When an employer determines that an employee has fabricated or greatly embellished a complaint against a co-worker or supervisor for some improper purpose, the employer should seriously consider taking action against the complainant.  As a recent decision of a labour arbitrator recognizes, making false and bad faith accusations may warrant severe discipline.

In Canadian Union of Public Employees, Local 3261 v. University of Toronto, the union grieved the discharge of an employee after the employer determined that the grievor had fabricated an allegation of workplace bullying and violence against a co-worker.  The grievor claimed that he had been the victim of an escalating pattern of harassment and bullying which culminated in the co-worker threatening him in a stairwell with a knife.  Over the course of several years, the employee had frequently complained about the tradespeople who he interacted with, and claimed that his supervisor and other members of management were complicit in his being harassed.  The employer adduced evidence that the grievor had a history of making complaints against co-workers to deflect blame whenever his performance or conduct was brought into issue.  The employer conducted an investigation and became dubious of the legitimacy of the complaint.  The complainant had initially given one date for the incident and when he reported it, but then provided different information.  When he first spoke to a manager about the alleged incident, it was after an issue of his behaviour had been raised, and he seemed to suggest that it was a "little thing".  He also declined to provide any details (such as the date and location where the incident occurred), although the union provided this information weeks later when it questioned why the employer had not investigated the alleged threat.  Ultimately, the investigation team compared their notes, and the inconsistencies and discrepancies in the complainant's reporting of the incident, and concluded that he had fabricated the situation.  Although the grievor had relatively little discipline on his record, the employer decided that his falsification of a complaint of workplace violence was sufficiently egregious that he should be discharged.  After he was fired, the grievor made a claim to the WSIB, indicating yet another date for the incident and adding further details about being bumped and having a chair kicked out from under him.

After reviewing the evidence, Arbitrator Cummings agreed with the employer's decision and found that the University "came to the correct conclusion" (i.e., that the grievor made up the story in an effort to get the co-worker in trouble and deflect attention away from his own bizarre behaviour).  In the Arbitrator's view, the employee routinely offered inconsistent accounts of what had occurred or when, and sought to take breaks or adjourn the hearing whenever he was challenged on these inconsistencies, so he would have time to develop an explanation. Moreover, the grievor's failure to document and provide details of the incident was not in keeping with his past practice when complaining about co-workers or supervisory staff.  In short, the Arbitrator found that the grievor was not credible and his evidence was unreliable.

In terms of the penalty of discharge, the Arbitrator acknowledged being troubled by the way in which the grievor's co-workers had openly shunned and bullied him in the past. At least one of the grievor's co-workers had admitted to trying to exclude him from eating in the trades shop.  However, given the gap in time between the last incident of bullying and when the false accusation was laid, the Arbitrator did not consider this mistreatment to be a mitigating factor.  The grievor's failure to admit his wrongdoing, however, was a seriously aggravating factor:

The aggravating factor is Mr. Tropak’s failure to take any responsibility for his termination. Making an unfounded allegation of a threat of workplace violence is malicious. Mr. Tropak has aggravated that misconduct by lying to the employer, the union and to the arbitrator in maintaining to the end that Mr. Ford threatened him with a knife. I echo the concerns of the employer that it is hard to imagine rebuilding an employment relationship with someone who lies about such a serious matter. It is also hard to imagine requiring other employees to work with Mr. Tropak, knowing that he has made and maintained such serious, unfounded allegations about another employee.

In the result the grievance was dismissed.

It is not often that an employee will make an unfounded complaint as was the case in this decision, and evidence of the falsehood will seldom be so obvious.  However, in order to ensure that action can be taken in the event of a false complaint, it's important to be prepared:

• Make sure you're workplace harassment and/or violence policies expressly provide for sanctions for fabricated or bad faith complaints;
• Ensure investigations are conducted in a thorough manner.  The investigator should take all reasonable steps to resolve any inconsistencies in the complainant and respondent's accounts;
• Whenever possible, assign the inquiry to an investigator who will be perceived as unbiased.  In appropriate circumstances, consider retaining a third-party to conduct the investigation where there is a lot of history with the complainant, the respondent(s) or both.

By exercising a degree of due diligence, an employer can greatly improve the likelihood of being able to address false claims when they arise.

Do you need advice on conducting workplace investigations?  Need an experienced investigator?  Contact Lance Ceaser for expert assistance.

 

Guidance on What an Employer Can Do When Accommodating a Disabled Employee

In dismissing a complaint of disability-related harassment and discrimination, the Canadian Human Rights Tribunal recently made some helpful comments on an employer's authority to follow-up with an employee respecting their medical condition and any restrictions they may have.

In Croteau v. Canadian National Railway, the Complainant was a conductor on freight trains operated by CN when he was injured.  Following multiple accidents and injuries over a ten-year period, the Complainant had a negative interaction with a Risk Management Officer (regarding his request for benefit forms), and two workplace accidents that resulted in injuries.  CN conducted a reconstruction of one of the accidents (as part of its root-cause analysis), and investigated whether the Complainant was legitimately off work following the second accident, which included hiring a private investigator to conduct surveillance.  Over the course of the succeeding months and years, the Complainant developed certain mental health issues, including anxiety and depression.  He claimed that the employer had engaged in several incidents of harassment, and that it had also repeatedly failed over a period of years to accommodate his disabilities. The employer denied the allegations and brought a non-suit motion, which was successful in having the Tribunal dismiss two alleged incidents of harassment.  However, another nine allegations of harassment and failure to accommodate were the subject of full evidence before the Tribunal.

At the outset of its analysis, the Tribunal made a couple of important observations.  First, it stated that not every interaction that a disabled employee has with the employer which is subjectively objectionable will amount to "harassment".  At para. 43, the Tribunal wrote:

It is important to recognize when dealing with allegations of “disability harassment” that it denotes more than just being uncomfortable or offended in the sometimes difficult, sensitive discussions between management and employees. For example, an employer has the right to manage its employees and issues relevant to the operation of its business, such as making, monitoring and enforcing rules in the workplace. The key is to examine whether the conduct has violated the dignity of the employee (e.g., as a result of belittling or degrading treatment by the employer linked to the ground of disability) from an objective perspective such that it has created a hostile or poisoned work environment.

Secondly, although the duty to accommodate does have a procedural aspect to it, that doesn't mean that a complainant is entitled to a remedy for a deficiency in the process unless it leads to a substantive failure to provide reasonable accommodation.  (The Tribunal based its view in this regard on the decision in Attorney General of Canada v. Cruden et al., which was recently upheld by the Federal Court of Appeal, as discussed here.) 

The Tribunal then weighed the credibility of the various witnesses, including the Complainant (whose evidence was found to often be unreliable, due to his skewed perspective on events), and determined that none of the alleged incidents were proven or amounted to harassment or discrimination.  Most importantly, the Tribunal found:

• The Complainant may have found the RMO to be rude or overly assertive, but she did not harass the Complainant merely by asking whether his injury was personal or work-related;
• Investigating the reasons for the Complainant's absenteeism did not amount to harassment, even where the employee was cautioned about the possible consequences of continued high levels of absence;
• Asking the Complainant to recreate the circumstances of a work-related injury was a legitimate exercise, intended to avoid or reduce future incidents leading to injuries;
• Questioning the bona fides of an injury, on its own, does not amount to harassment, particularly where the employer has legitimate doubts about an employee's account of how the injury occurred.  Likewise, an employer has a right to inquire into the reason that an employee has a much higher than average incidence of work-related injuries (as was the case with this Complainant);
• Despite the fact that the federal Privacy Commissioner had taken issue with the employer's use of surveillance by a private investigator, the Tribunal found that the surveillance did not amount to harassment.  The employer had legitimate reasons to question the reason for the Complainant's extended absence without leave (including the submission of contradictory doctor's notes, and his failure to answer 58 calls from the employer), and the surveillance itself was conducted in a reasonable manner.
• Conducting a meeting with the Complainant to discuss his absence and the outcome of the surveillance (which captured the Complainant playing soccer and basketball, despite an alleged knee injury) was a necessary adjunct to the employer's investigation, and was not harassment, despite the meeting running "inordinately long";
• Rescinding approval for tuition reimbursement, due to the Complainant's injury record and period of AWOL, was a legitimate response (given CN had reason to believe the Complainant was not "promotable"), and did not constitute harassment;
• Although the employer may have relied on some inaccurate information in deciding to deny the tuition reimbursement, it did not amount to discrimination as there was no evidence it was related to a prohibited ground;
• Issuing a 'deferred' suspension, while the Complainant was off on STD and then LTD leave, did not amount to harassment, particularly where the Complainant never ended up serving the suspension.

The Tribunal then went on to consider the Complainant's claims that CN had failed to accommodate his disability over a number of years, and ultimately found that CN had accommodated the Complainant to the point of undue hardship.  The Tribunal was satisfied that the operation of a freight railway was a very safety-sensitive endeavour.  The Complainant's restrictions (related to his anxiety disorder) prevented him from working alone, being responsible for the safety of others, operating any moving equipment or working in a safety-sensitive/critical position, although over the course of years these limitations changed to include restrictions from certain shifts, as well.  The Complainant acknowledged that the employer had taken some measures to accommodate him between 2007 and 2013, but still claimed that the employer had not done enough (over the course of five (5) failed attempts to return him to work).  Ultimately, the employer was unable to find any positions for the Complainant within his restrictions, either in Sarnia (where he had worked) or elsewhere within the railway. The Tribunal found that the RTW efforts had foundered because the Complainant was unable to fully participate in the employer's efforts (due to his anxiety disorder and certain unreasonable demands he made) and was fixated on obtaining an apology and other redress (despite the employer not having done anything wrong) before he would cooperate in RTW efforts.  The Tribunal observed that there were aspects of the accommodation process that CN could improve, but that no accommodation, short of undue hardship was possible, and dismissed the complaint.

The decision reflects both the challenges of dealing with a claim for disability accommodation (which can be particularly onerous in the area of mental health issues), and the types of normal employer interactions with a disabled employee that will not amount to harassment or discrimination.  While employers often feel as if their "hands are tied", this case shows that an employer does still have the authority to manage the employment relationship, including reviewing the circumstances leading to an injury or absence, investigating and addressing employee conduct (such as when an employee is AWOL), and questioning the legitimacy of medical notes (where there is reason to do so).

Do you face challenges with accommodation?  Need assistance in navigating the RTW process?  Contact Lance Ceaser for expert advice.

 

Court reminds: "a message does not become privileged merely by sending a copy of it to a lawyer"

A recent decision of the Superior Court of Justice should serve as a good reminder to HR professionals that one must be careful in how information is shared if privilege will be claimed.

In Jacobson v. Atlas Copco Canada Inc., the plaintiff was a former employee of the defendant.  Following a workplace altercation involving the plaintiff and a co-worker, human resources investigated.  However, the plaintiff took the position that the local HR representative was biased.  Accordingly, the HR representative sought the opinion of another HR employee from a different location to ensure impartiality.  Copies of the investigation notes were exchanged among the HR representatives, with a copy to an external employment lawyer.  However, it was not clear that all of the employees on the email chain were aware of the identity of the lawyer, nor did anyone expressly seek the advice of the lawyer with respect to the outcome of the investigation.  In one particular email message, one of the HR reps offered his views on the application of the employer's progressive discipline policy and a proposed course of action vis-à-vis the plaintiff's employment.  A couple of hours later the lawyer provided his legal advice on the situation, although his opinion had not been solicited.  The employee was ultimately terminated, and sued for wrongful dismissal. 

In the course of the action, the plaintiff brought a motion seeking production of the email from the second HR representative of the company (but not the responding email from the lawyer, which clearly contained legal advice).  The employer resisted the motion on the basis that the email communication was protected by solicitor-client privilege and should not be produced.  In support of its position, the employer provided an affidavit from the company's General Manager, who advised that the company had retained the external lawyer to provide advice on the investigation, and his belief that the HR representative had been seeking advice when he copied his email to the lawyer.  However, the company did not provide an affidavit from the HR representative himself.

Justice Ellies looked at the surrounding circumstances to determine whether it was clear that the HR representative had intended to seek the lawyer's advice when he sent his email.  Unfortunately, because the company had not provided the "best evidence" (i.e., a statement from the individual who actually sent the email), the Judge concluded that the hearsay evidence of the General Manager did not establish that this was the intention of the communication in question. As the party claiming privilege, the onus of proving the communication was privileged rested with the company.  The evidence it put forward failed to prove that point on a balance of probabilities.  At paragraph 25, the Judge very succinctly summarized his conclusion:

Atlas Copco relies on [the General Manager]`s evidence that [the lawyer] was retained to provide legal advice prior to the [HR representative's] message and provided an opinion via e-mail a few hours after the message was sent. There is no doubt that [the lawyer]’s role was to provide legal advice with respect to this particular situation and that he did provide that advice after receiving [the HR representative's] message. However, that is not enough, in my view, to establish that [the HR representative] sent the message for the purpose of obtaining that legal advice in light of the other circumstantial evidence surrounding the communication. In the same way that sending a message to both a fellow employee and a lawyer does not prevent a communication from being privileged, a message does not become privileged merely by sending a copy of it to a lawyer.

While the decision turned largely on the  importance of producing the "best evidence" in all circumstances, it also lays bare a common assumption or misunderstanding about legal privilege.  In order to claim solicitor-client privilege, the client (in this context, the employer) must establish that the communication in question was sent to a lawyer with the intention of getting the lawyer's legal advice.  Copying a lawyer without soliciting an opinion may not suffice to protect the message from disclosure later, particularly if there is no discussion amongst the parties about the role of counsel on the email chain. Likewise, if the advice in question is not "legal" per se, privilege will also not apply.  Legal privilege can be a very valuable tool, particularly in the context of an investigation into wrongdoing.  However, if the role of the lawyer is not observed, privilege may be elusive.

Do you have questions about how and when solicitor-client privilege can be claimed?  Need assistance in conducting investigations?  Contact Lance Ceaser for expert guidance.




 

Claiming Privilege Over Workplace Investigation Records

Often employers will retain the services of an independent investigator (typically a lawyer) to investigate issues in the workplace, either expecting or assuming that the investigator's work product (such as notes and the written report) will be privileged and not subject to disclosure and production obligations.  However, if the work of the investigator is to be protected from later disclosure in the course of litigation, the employer must carefully consider the law of privilege prior to retaining a third-party investigator.  The recent decision of Master Short of the Ontario Superior Court of Justice in Howard v. London (City) illustrates the challenges.

Background

In 2012, a resident of the Dearness Home (a nursing home operated by the City of London) packed up his belongings and left the facility, unbeknownst to staff.  The resident had recently been moved from a secure part of the facility to an area that did not have the same access controls.  The resident managed to wander some distance up a very heavily travelled road before he stepped into traffic, was struck, and subsequently died from his injuries.  The death of the resident was widely reported in local media, which raised questions about how such a tragedy could have occurred.  The administrator of the Home was away on vacation at the time, but commenced an investigation immediately upon her return.  However, after only a few days, she was instructed to cease her inquiries, as the City had decided (on advice from external counsel) to conduct an independent investigation, using the services of a local lawyer.  At the same time, the Ministry of Health and Long-Term Care was also conducting its own investigation. Ultimately, the investigator was retained by the Interim City Manager to conduct an investigation into the City's policies, procedures and actions, oversight by the City Council, the City's procedures for investigating critical incidents, and whether City employees and representatives had complied with applicable standards, and to provide legal advice on same.

Before and during the investigation, there was evidence of several "Strictly Privileged and Confidential" email messages among a number of City staff, including the administrator of the Home, regarding the scope of the investigation.  The administrator was interviewed twice and provided some documentation requested by the investigator.  She was repeatedly reassured that she need not be concerned about the outcome of the investigation for her employment, and was specifically told that she could not have her lawyer present during the interviews.  At the end of the investigation, the administrator was advised that she could resign, failing which her employment would be terminated for cause.  She did not receive a copy of any interview notes or the investigator's report, and was given no opportunity to respond to its findings before she was terminated.  She commenced a wrongful dismissal claim and sought production of the investigator's file, including any notes and the report.  The City resisted the motion, claiming solicitor-client privilege and litigation privilege.

The Production Motion

In his decision, Master Short reviewed the evidence that was presented, including a number of the email messages among senior City staff that debated whether the investigation was for human resources purposes or to establish due diligence vis-a-vis resident care (in anticipation that the resident's family would likely bring an action against the City). In one email, the City Solicitor suggested that he would be prepared to seek Council's approval to retain "independent legal counsel... to provide advice and an independent privileged legal opinion" concerning the issues that were ultimately referred to the investigator.  The Master observed that this email was focused on obtaining advice in relation to potential civil liability regarding the death of the resident and made no mention of legal advice on potentially terminating an employee. It was also clear from the email that the City was retaining the lawyer to conduct a fact-finding investigation, not seeking a legal opinion (as suggested by the City Solicitor). Despite the reassurances allegedly given to the administrator, it was also clear that the investigation did have a HR focus, and was intended to determine outcomes for staff who may have had involvement in the incident.

The Master also considered the fact that the City had relied on the investigation in determining that the administrator should be terminated, and had disclosed this reliance to the media on more than one occasion.  The London Free Press reported extensively on the story, and quoted the Mayor tying the termination of the administrator to the report prepared by the investigator.

Under the Rules of Civil Procedure, all relevant documents are to be disclosed to the opposing party, "whether or not privilege is claimed in respect of the document".  Where a party claims privilege over a document, it must set out the basis for its privilege claim, and bears the onus of establishing that privilege applies.  The City claimed both that the investigation documents were covered by solicitor-client privilege, as the investigator was a lawyer whose retainer included the provision of legal advice, and litigation privilege, which applies to documents created by a party when litigation is occurring or is contemplated.  Master Short conducted an extensive review of the law applicable to both types of privilege and made several very helpful findings:

• Although solicitor-client privilege is designed to ensure justice and fairness, by allowing the free exchange of information necessary to a lawyer's representation of a client, it has its limits. For example, the exchange of communication between a client and a lawyer who has been retained only to address a specific legal matter will not be protected if the communication is unrelated to the retainer. Likewise, if the lawyer has been retained in some other capacity unrelated to providing legal advice or exercising the skills of a lawyer (i.e., acting as a fact-finder where legal skills are not required), no privilege will attach.
• In those cases where privileged applied to the findings of a lawyer-acting-as-an-investigator, the retainer was clear that the lawyer was to provide legal advice on the specific subject matter of the investigation or was using the specific skills of a lawyer (such as where a lawyer was investigating whether a member of the judiciary had acted inappropriately during a trial).
• When considering whether solicitor-client privilege attaches to records, the understanding of the parties is a factor.  Where the lawyer is presented solely as a fact-finder, and explains that his/her assignment is limited to certain factual matters, it is unlikely that privilege will attach or that it will be limited to those legal issues within the investigator's mandate.
• Unless the retainer specifies that the lawyer-investigator is to provide "legal advice" (rather than just "advice"), a court is less likely to find that solicitor-client privilege applies.
• One party to a privileged communication cannot assert privilege against someone else who also received the advice from the same lawyer, on the basis that the parties have "joint interests".
• In order for litigation privilege to apply, it must be contemplated that a specific claim will be made by or against a particular party.  Where communications involve an incident that may give rise to one particular type of claim (e.g., liability due to negligence), they will not be privileged in relation to a different type of claim (e.g., wrongful dismissal of the person who is found to be negligent).

In the result, Master Short concluded that the investigation file was not privileged, and ordered the City to produce it to the plaintiff (with any personal information of third parties redacted in accordance with the Municipal Freedom of Information and Protection of Privacy Act).  The investigator had been retained not as a lawyer (i.e., to provide legal advice or representation), but to find certain facts.  While the investigation may have been conducted in the contemplation of litigation by the family of the deceased resident, it was not related to a potential wrongful dismissal claim by the plaintiff.  Moreover, the City could not assert privilege against the administrator when she had been part of the communication with respect to the conduct of the investigation.

What Does It Mean?

For employers, this case provides some important guidance:

• Determine whether the employer wishes to maintain privilege over the investigation file.  If it is unlikely to be crucial, it may be advisable to retain a non-lawyer or hire a lawyer to act solely as a fact-finder to contain the costs of the investigation.  It is advisable to obtain legal advice before deciding whether privilege ought to be claimed.
• If a claim of solicitor-client privilege will be made, ensure that the retainer letter is clear that the lawyer-investigator is to make findings of fact and to provide legal advice or opinion on the basis of those findings.  Also ensure that the scope of the retainer is broad enough to cover the personal conduct or blameworthiness of individual employees, and that the advice sought includes labour and employment law advice and recommendations.
• If it's likely that some form of labour or employment litigation may arise from the matter under investigation, such as a civil action, grievance or human rights complaint, then there may be a basis for litigation privilege.  In that case, the investigator need not be retained to provide legal advice.  However, if the investigator will be only a fact-finder in this scenario, he/she should be retained by counsel for the employer (whether external or in-house), rather than by some other representative of the employer, and it should be clear that the investigator's findings are necessary for counsel to advise and represent the "client" (i.e., the employer) in relation to all potential forms of litigation.
• Communication with an investigator or in regards to the investigation must be handled delicately.  It is preferable for communication with the investigator to be with only one or two representatives of the employer, or with counsel for the employer (if possible).  Anyone who may fall within the scope of the investigation should not be included on any 'privileged' communication.  Erect a 'cone of silence' and carefully maintain it, or privilege may be "waived".

Unfortunately, the law of legal privilege is a very complicated area.  While the foregoing recommendations may prove helpful, they cannot be construed as legal advice, in the absence of a very fact-specific analysis of a particular situation.  If you are uncertain about how to undertake an investigation or whether you can assert privilege over the findings of an investigator, obtain legal advice.  Feel free to contact Lance Ceaser for guidance or to ask about investigation services.

Two Employers Learn Costly Lessons: Significant downside to not properly investigating human rights concerns

Two recent decisions of provincial human rights tribunals highlight the risk that an employer faces in not appropriately addressing and/or investigating an employee’s claims of discrimination in the workplace.  It is not simply enough to have a workplace harassment and discrimination policy.  Unless the employer has procedures to address concerns when they come forward, including protocols for effectively investigating complaints of discrimination and harassment, those policies will not offer much protection.

In Cromwell v. Leon’s Furniture Limited, the Complainant employee, an African-Canadian woman, had been a Sales Associate with a furniture store in Halifax for approximately 4 years.  Over the course of several months, she was subject to multiple disciplines for alleged violations of the employer’s attendance policies, and was the recipient of unwanted comments and name-calling from her manager.  The employee claimed that the manager referred to her as “Condoleeza Rice” or “Contessa”, described her hair as being “wool”, and resolved disputes between the Complainant and a fellow Sales Associate in the other employee’s favour on more than one occasion.  Throughout the period of her employment, the Complainant was in regular contact with the Area Supervisor, with whom she had a “personal relationship”, but the corporate Respondent did not take any effective action to address her difficulties.  Instead, the Area Supervisor routinely advised the Complainant that she needed to take up her concerns with the store manager.  Ultimately, the Complainant reached the conclusion that her career with Leon’s was over when her manager greeted her at her performance review by telling other managers to leave the office, “There’s going to be a lynching”.  Three weeks later, the Complainant resigned, and set out all of the differential racial treatment in a letter to the company.

After determining that most of the racial discrimination alleged in the complaint had occurred, the Board of Inquiry had to assess whether the employer had taken sufficient measures to prevent and address workplace harassment and discrimination.  The company did have policies in place, and following the Complainant’s resignation, an investigation was conducted.  However, the investigation was performed by the Area Supervisor, who never disclosed to Leon’s the nature of his relationship with the Complainant.  The Board of Inquiry concluded that the employer’s policy was inadequate as it did not define “discrimination” or describe the mechanism for addressing complaints.  However, more concerning was the employer’s response after the Complainant’s resignation.  The “investigator” did not take any notes of his initial call with the Complainant, and rather than conduct an interview, he suggested she come in to meet with himself and store management – an offer which she declined.  The Complainant was effectively excluded from the investigation from this point forward.  Statements were obtained from the other managers at the store by the Store Manager (not the investigator), but he did meet with and interview a number of other staff.  Despite corroboration that the “lynching” comment had been made, and that none of the managerial staff present had offered any objection, the investigator concluded that the Complainant had not been subject to any racist behaviour.

At para. 354, the Board stated:

I cannot reasonably conclude than an investigation conducted by a manager who has been in a romantic relationship with the Complainant is reasonable or appropriate in these circumstances.  I find that this conflict of interest impacted the reasonableness of the findings [the manager] made and throws into question the bona fides of those findings.  As well, [the manager] failed to make findings on key aspects of information in the possession of the Respondent respecting the Complainant’s allegations.

Putting aside the conflict presented by the investigator’s relationship with the Complainant, the Board found that there were “significant flaws in the investigation”.  The investigator failed to consider or place weight on relevant evidence, failed to follow up on equivocal answers from witnesses, did not address key allegations, failed to seek information directly from the Complainant, and simply did not seem to understand what discrimination was, placing emphasis on intention over impact.

In the result, the Board of Inquiry awarded the Complainant eighteen (18) months’ wages, less mitigation earnings, and damages in the amount of $8,000.

Where an employer did not even undertake an investigation, before purportedly terminating the alleged victim of discrimination, the outcome was similar.  In Morgan v. Herman Miller Canada Inc., the Applicant had worked for the corporate Respondent for approximately 3 years before his employment was terminated for “cause”.  The employer asserted that the employee’s past disciplinary history, combined with spreading rumours of the company’s demise, constituted cause for dismissal, but still paid out his contractual entitlements.  At the hearing, the employer also alleged that the employee was slated for termination months before his employment actually ended, due to redundancy.  However, shortly before his employment was terminated, the Applicant had brought forward concerns about the assignment of work and other alleged incidents that he claimed revealed racial discrimination.  The complaint , therefore, raised allegations of both discrimination and retaliation.

The Human Rights Tribunal of Ontario heard the case, and determined that none of the conduct that the Applicant complained of amounted to discrimination prohibited by the Human Rights Code.  The employer was able to establish that its actions were either legitimate (due to actual concerns with the Applicant’s conduct) or had been misconstrued.  However, the Tribunal was not satisfied that the employer could justify its termination of the Applicant's employment, particularly on the shifting evidence of its reasons for doing so and having not investigated his complaints. 

At para. 108 of the decision, Vice-Chair Geneviève Debané found:

Instead of dealing with the applicant’s allegations in an appropriate manner, the company chose to terminate the applicant’s employment. I note that the termination letter itself relies on the fact that the applicant was “profoundly unhappy”. I find that this unhappiness was a direct result of the fact that he perceived that he was being treated in a discriminatory manner because of his colour. Although reprisal need only be one factor in the decision to terminate the applicant in order to find that the applicant was terminated contrary to his right to be free from reprisal under the Code, in my view the reasons in the respondent’s termination letter were otherwise pre-textual. This includes the breach of confidentiality that occurred on August 2009 and the comments made by the applicant about Ms. Ingham. A significant period of time had passed since the confidentiality incident and in my view the issue was largely “stale dated” by the time of the applicant’s termination. Further, the applicant was not even disciplined by Ms. Ingham at the time of the comments in relation to her but he was “cautioned”.

While the employer was clearly aware of his claims of discrimination prior to terminating the Applicant, the issue was merely forwarded to the U.S. parent company, and no investigation of his claims was ever undertaken.  Instead, he was dismissed.
For the “organizational failure” of having taken no action to address his complaints, the Applicant was awarded $15,000 in damages and 14 months’ pay as lost income arising from the termination of his employment, despite none of the underlying discriminatory conduct having been proven.

Whether an employer undertakes no investigation or performs a deeply deficient investigation, the outcome is essentially the same:  the employer will have failed to meet its human rights obligations with all of the liability that flows as a consequence.  Allegations of this nature must be dealt with in a timely and meaningful way.  The employer needs to ensure policies are adequate, that complaint mechanisms are effective and well-communicated, and utilize a trained investigator to perform a thorough inquiry.  Anything less will run afoul of human rights legislation, as both of these employers can attest.

If you have questions about dealing with human rights complaints or assistance with investigations, do not hesitate to contact Lance Ceaser.