In a recent judgment by the Court of Québec which may raise a few eyebrows, an investigator hired by an employer to inquire into psychological harassment complaints was ordered to pay an alleged harasser moral damages for pain and suffering.1
Summary of the facts
Complaints of psychological harassment were initiated against David Zinga Ditomene, a Cegep teacher, by two of his colleagues. In keeping with the employer's harassment policy, an outside investigator, lawyer Louise Boulanger, was appointed to conduct an impartial investigation into the cases.
Ms. Boulanger's engagement as an investigator specified that she was to gather the accounts of the facts from the complainants, the individuals at whom the complaints were directed and any other relevant witnesses, analyse the well-foundedness of the allegations and prepare reports summarizing her analysis and findings and making her recommendations. She would be supported in these efforts by an investigation committee that included members of the Cegep's personnel.
At the time of Ms. Boulanger's engagement by the Cegep, Mr. Ditomene was on disability leave. In the interest of "making human contact," Ms. Boulanger telephoned Mr. Ditomene directly to tell him about the complaints commenced against him and to advise him that an investigation was being held. Mr. Ditomene related that the phone call had been "long and difficult" and that it had upset him.
After the telephone conversation, Ms. Boulanger corresponded with Mr. Ditomene on four occasions asking him to come to a meeting. Mr. Ditomene described these notices as incomplete because he had not been given copies of the complaints against him. He also contended that the investigator had been remiss in sending some of the letters too late, preventing him from attending on the dates proposed.
When a meeting was finally held, Mr. Ditomene wanted to record his own deposition, which demand was turned down by Ms. Boulanger on confidentiality grounds. Mr. Ditomene waived his demand after Ms. Boulanger offered to show him her own notes of the deposition. When asked whether the complaints against him were justified, Mr. Ditomene countered that they had not been properly lodged since he had not received copies. He also said that there were errors in some of the dates mentioned in the complaints and that certain factual allegations were false. Given his objections, Mr. Ditomene refused to give the committee his version of the facts.
In the circumstances, Ms. Boulanger completed her analysis without the benefit of Mr. Ditomene's version of the facts. She went on to send the employer her investigation reports, which were unfavourable to Mr. Ditomene. Mr. Ditoneme was then suspended by the Cegep and subsequently dismissed. The reasons cited by the employer in support of his termination included that he had harassed work colleagues.
Following a brief review of the legislative framework pertaining to psychological harassment in the workplace, the Court went on to outline the circumstances in which a duty of procedural fairness was owed by a decision-making body or individual.
The Court determined that Ms. Boulanger was under a contractual duty to act fairly in connection with her investigation engagement, but that her duty was limited to what was stipulated in the employer's policy.
In the circumstances, the Court found that Ms. Boulanger had committed a number of breaches of her duty of procedural fairness, including allowing a member of the investigation committee to be replaced while the investigation was ongoing, with the result that one of the signatories of the final report had not been involved at all stages of the process. In addition, Ms. Boulanger had failed to provide Mr. Ditomene with copies of the original complaints, the policy, the factual accounts of the witnesses interviewed and his deposition, contrary to the express provisions of the policy. Mr. Ditomene had thus been deprived of his right to familiarize himself in advance with the complaints levelled against him so that he could respond to them. The Court also criticized Ms. Boulanger for summoning Mr. Ditomene to meetings on too short notice to allow him to prepare and defend himself adequately, as well as for the content of her reports, which it said were incomplete and did not devote sufficient attention to the well-foundedness of the complaints.
After finding that Ms. Boulanger had not fully adhered to the rules of procedural fairness which the employer's policy required her to follow, and that she did not benefit from immunity of any kind, the Court agreed that Mr. Ditomene had a direct remedy against her for breaching those rules. The Court limited its award to the plaintiff to $3,000 for moral damages for pain and suffering endured in connection with Ms. Boulanger's wrongful actions, which it found to have caused him considerable worry and additional stress.
The Court ultimately equated the failure of investigator Boulanger to observe the provisions of the employer's psychological harassment policy with an infringement of the plaintiff's right to procedural fairness. The lesson that emerges for all employers is the importance of reviewing the obligations imposed by their policies in relation to the investigation of psychological harassment complaints, and ensuring that the persons entrusted with investigating such complaints are well informed and follow the policy's procedures meticulously. Where such investigations are handled internally, as is often the case, an employer, too, could be held liable if the internal investigator failed to properly discharge his or her duties. Following this simple practical advice will minimize the risks of investigators being sued.
1 Zinga Ditomene c. Boulanger (February 8, 2013), 2013 QCCQ 842, Judge Claude Laporte.
Download Psychological harassment complaints – When the investigator gets sued (pdf 112kb)
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