Canada: Workplace Investigations: The Benefits Of Third Party Investigators

Last Updated: June 25 2015
Article by Lisa Gallivan and Alison Strachan

In Zambito v. LIUNA Local 183 and Central Eastern Canadian Organizing Fund 2015 HRTO 605 Adjudicator Ken Bhattacharjee made the following comments about a third party investigator and investigation process in a workplace harassment complaint based on nationality and family status:

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 finds 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.

Second, I do not accept the applicant's argument that Mr. Evans' investigation was biased because in some respects he found Mr. Oliveira and other witnesses to be more credible than the applicant. As a third party investigator, Mr. Evans' role was to interview the parties and witnesses, and to make findings of fact. The mere fact that the applicant disagreed with his findings is insufficient to establish that Mr. Evans did not reasonably investigation his complaint.

The following is our brief review of the decision.

What happened?

In July 2011, Mr. Zambito began work as a union organizer for the respondent Central Eastern Canadian Organizing Fund, that assisted the respondent union ("the respondents") in organizing non-union workers. In January 2013, Mr. Zambito filed an internal complaint against a co-worker, Mr. Oliveira, alleging that he had been harassed by the Mr. Oliveira making graphic humiliating and degrading comments about his nationality and family. The co-worker denied having made these comments. After making the complaint, Mr. Zambito went off work on sick leave for about a week. The respondent assigned its' in-house counsel, Mr. Evans, to investigate the complaint. Mr. Evans' work history included practising labour, employment and human rights law for more than 20 years. He did not know Mr. Zambito or Mr. Oliveira prior to the investigation he was assigned to.

During the course of the investigation, that started by the end of January 2013, Mr. Evans interviewed Mr. Zambito. During this interview, Mr. Evans found that Mr. Zambito was "confrontational and argumentative, and swore during the interview". He also said Mr. Zambito admitted that he had "anger management issues". At the hearing, Mr. Zambito denied that he had ever had anger management issues let alone had told Mr. Evans that he did. Following this interview, Mr. Zambito was sent home on a paid leave pending the investigation's outcome. The investigation was completed in early March 2013. The report made the following findings.

  • In January 2013, there was banter on Italian and Portuguese people/culture, and Mr. Zambito made a number of references to the Portuguese being an inferior group compared to the Italians, and specifically told Mr. Oliveira that the Italians are superior to the Portuguese. Mr. Zambito's denial that he had made these comments was not credible. His comments were offensive and inappropriate.
  • Mr. Oliveira verbally highlighted an excerpt from a movie where a character told a Sicilian gangster that the Moors, from Africa, had conquered the Sicilians, and that the gangster's great great grandmother had sexual relations with Black men. A Black employee who heard the comment was not offended by it. However, the comment was intended to reflect poorly upon Sicilian people generally, and the applicant specifically. Mr. Oliveira's suggestion that his comment was merely a discussion about a movie and was not intended to be objectionable was not credible. His comment was objectionable and offensive.
  • After Mr. Oliveira made his comment, Mr. Zambito made a comment to him to the effect that he could not have kids, which was understood by others to mean or suggest that Mr. Oliveira was gay. The applicant then spoke with other co-workers about the incident, and was ranting, out of control, and making numerous inappropriate comments about Portuguese people. He also told a co-worker that he wanted to kill Mr. Oliveira. The applicant's denial that he had made these comments was not credible. His comments were both offensive and inappropriate. His reaction to Mr. Oliveira's comment was neither warranted nor in the realm of a reasonable response.

The report recommended that both employees receive unpaid suspensions. Mr. Zambito, ten days, and Mr. Oliveira three days. Instead, the employees were both given verbal warnings and both returned to work and there were no further incidents between the two after this time.

In September 2013, Mr. Zambito filed an application under the Ontario Human Rights Code ("Code") alleging that the respondents had discriminated against him with respect to employment because of his race, ancestry, place of origin, and ethnic origin. His central allegation was that the respondents discriminated against him by failing to properly investigate his internal complaint against Mr. Oliveira.

What did the adjudicator say?

The adjudicator confirmed that under the Ontario Code, employers have a duty to investigate a complaint of discrimination to ensure that the rights under the Code are meaningful. The reasonableness of an investigation has been set out in a previous decision, Laskowska v. Marineland, 2005 HRTO 30, as comprising three criteria of corporate "reasonableness":

(1) 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;

(2) 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

(3) 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.

The adjudicator found that the respondents met the first part of the Laskowska test saying that there were policies prohibiting Code-related harassment and discrimination, a complaint form that was filled out and submitted by Mr. Zambito and no arguments were made that the respondents failed to meet that part of the test.

He further found that the respondents met the second and third parts of the Laskowska test saying Mr. Evans had significant expertise and experience in labour and human rights law and had no knowledge of the Mr. Zambito or Mr. Oliveira prior to the investigation of the complaint. The adjudicator also noted that Mr. Evans began the investigation in a timely manner and interviewed all relevant witnesses within two and one-half weeks. His investigation report was concluded approximately four weeks after that and a resolution of the complaint occurred shortly after.

As a result, Adjudicator Bhattacharjee dismissed the application by Mr. Zambito.

What does this mean for employers?

In all cases, employers should have a workplace understanding of discrimination and harassment issues, a policy that includes a complaint mechanism and training for all parties of the workplace. Once a complaint is made, employers have an obligation to treat the complaint seriously and deal with the matter promptly and sensitively. This includes conducting a reasonable investigation and acting accordingly. In all cases, the complaint must be resolved in some form.

Investigations can clearly make or break how a matter is dealt with and resolved. This decision is a good example of how the expertise and credibility of an investigator is critical. In all cases, investigators must be unbiased, thorough, conduct the investigation in a timely manner, interview all relevant witnesses, and conclude the investigation report in a timely and effective manner. This includes providing a recommendation for resolution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Lisa Gallivan
Alison Strachan
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