Do you have to appoint an external investigator to investigate a complaint in your workplace? No, not necessarily. Conducting an effective workplace investigation of an employee or other complaint is essential. Courts increasingly scrutinize how employers handle complaints. A good workplace investigation can not only avoid liability for you, but effectively resolve the issue before you find yourself at the responding end of an Ontario Human Rights Code complaint - a place most employers would very much prefer to avoid.
An employer can do its own workplace investigation, if it has a person internally with the experience and skills to conduct an investigation competently, fairly and in a manner that will be legally defensible. Many complaints can be effectively addressed internally, if done properly.
A good example of this is this recent case: Zambito v. LIUNA Local 183 (May, 2015), a decision of the Ontario Human Rights Tribunal.
In this case, the employer completed a very good workplace investigation, including complying with the requirements of the Ontario Human Rights Code and, as a result, was successful in the employee's Code complaint against the employer. The employee made a complaint about discrimination in the workplace based on nationality and family. He was subsequently laid off by the employer. He then brought a complaint under the Human Rights Code, alleging the employer failed to properly investigate his complaint. The employer defended, taking the position that it had properly investigated.
The employer arranged for its own in-house lawyer to conduct the workplace investigation.
The Tribunal carefully examined the investigation and how it was completed. The investigator had:
- Interviewed both the complainant and other affected parties, including the respondent;
- Interviewed two eye witnesses to the exchange, and two other witnesses who saw the complainant's behaviour immediately after the incident;
- Completed his interviews within two and a half weeks of the incident; and
- Four weeks after the incident, had prepared (and saved) a written report that contained detailed findings of fact, an analysis and recommendations.
The Tribunal ultimately concluded that the investigation was: “the “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment”.
The Tribunal accepted that the employer had properly investigated, pursuant to the Human Rights Code. The Tribunal actually praised the investigator in this case:
First, I found Mr. Evans to be a totally credible witness. He was a third party who had no interest in the outcome of the investigation. His testimony about the investigation process that he followed, including interviewing witnesses, making findings of fact, and making recommendations based on those findings, was straightforward, logical, internally consistent, and detailed. His testimony about the investigation process was not shaken in cross-examination."
Therefore, the employer was successful in this Human Rights Code challenge by the former employee.
The lesson? Conducting a workplace investigation is not only necessary, but must be done properly and effectively, based on the increasingly emerging cases about this area. The investigator, whether internal or external, needs a plan and the skills to act on that plan, to arrive at a reasonable conclusion.
This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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