In any workplace, it is possible, if not likely, that people
will not always get along. When employee incidents happen and
complaints are made, it is important for the employer to promptly
investigate a complaint to avoid liability under the Ontario
Human Rights Code.
Why does an employer have a legal obligation to investigate a
Besides wishing to be proactive in investigating complaints to
protect against liability and to promote a good working
environment, a duty to investigate a complaint of discrimination is
imposed on all employers by section 5 of the Code. The
purpose behind this obligation is to ensure that the rights
protected by the Code are meaningful to employees.
But when is the employer's duty to investigate
An employer's obligation to investigate is not legally
engaged until two criteria are met. First, the employer must be
aware of the complaint either by the applicant communicating it to
the employer or the issue becoming otherwise known. Second, the
substance of the complaint must be about a potential violation of
Once the employer's duty to investigate is triggered it
should proceed with an investigation. Unfortunately for employers,
not just any investigation will do to avoid liability. An employer
investigation must meet the criteria known as the
Laskowska test to fulfill its Code obligation.
This test assesses the employer's response to a complaint at
three different time periods.
First, the employer's preparedness or awareness of issues is
assessed. At this time factors such as the presence of an
anti-discrimination and harassment policies are considered along
with whether a complaint mechanism was in place. A further factor
is whether or not adequate training was provided.
Second, the employer's reaction post complaint is assessed.
This assessment considers the seriousness, promptness, and action
that the employer takes to address the complaint. It is at this
stage that the procedure and substance of the investigation process
selected by the employer is critical.
Third, the employer's resolution of the complaint is
assessed. At this stage, the employer must provide a reasonable
resolution in the circumstances. An investigation can assist with
this stage by providing a recommendation for resolution.
The good news for employers is that they are not held to a
standard of correctness when the Human Rights Tribunal or another
forum assesses an investigation. Rather, the Tribunal, in Zambito v LIUNA Local 183 2015
HRTO 605 clearly establishes that an employer
investigation is assessed on a reasonableness standard.
In the Zambito case the applicant was a union organizer
that filed an internal complaint concerning harassment. The
respondent union, acting as an employer in this case, responded to
the complaint with an investigation by its in-house counsel. This
investigation interviewed not only the applicant but 5 other
witnesses. Although the investigator was in-house counsel, he was a
third party with no interest in this particular dispute. The
internal investigation was completed within 6 weeks. Although the
recommendation for suspensions by the investigator was not
followed, the union's response of reviewing the report with
both the applicant and the applicant's co-worker was sufficient
The take away from Zambito is that an internal
investigation does not have to create a perfect workplace –
the Tribunal specifically stated that it was not necessary in this
case for an apology to be made. Rather, the Tribunal considered the
facts of the specific complaint and noted that there were no
further incidents between the co-worker and the applicant after the
investigation. As a result the employer was not liable for its
To avoid liability under the Code Employers should
proactively prepare to address discrimination and harassment by
having policies and a complaint mechanism in place. If a complaint
is filed, the employer should promptly respond to the complaint and
conduct a reasonable investigation. Finally, to avoid liability
employers should look to resolve the complaint and should consider
what will be required in each individual circumstance.
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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