There is perhaps no better time to be talking about workplace
investigations as high profile cases of sexual harassment and
poisoned work environment have pushed the issues into the public
realm for debate and discussion. Never before have employers
been under such scrutiny in the way they handle workplace conflict
and conduct workplace investigations. As law makers, courts
and tribunals attempt to keep up with the pace of public opinion,
we see more and more workplace investigations being
challenged. And with the recent introduction of Bill 132 by
the Liberal government (click
here for CCP's blog that provides an overview of
the new legislation), employers will need to be more vigilant in
how they handle harassment complaints in the workplace.
A recent Human Rights decision
highlights the right way to investigate a complaint of
In Zambito v. LIUNA Local 183, 2015 HRTO 605
(CanLII) Ontario's Human Rights Tribunal
dismissed an Application against an employer holding that it had
reasonably discharged its duty to investigate a Code-based
complaint. The Applicant made a complaint in accordance with the
employer's policies, that he was harassed by virtue of his
nationality and familial background. After he was laid off by the
employer, he filed an Application under the Code in which
he alleged that his employer had failed to properly investigate his
complaint. The employer denied this, and said that it had conducted
a thorough investigation.
The Applicant's internal
complaint was given to the employer's in-house counsel to
investigate. The Tribunal noted that this investigator did not know
the Applicant, and that he had practiced labour and employment law
for 20 years. The clear suggestion here is that this person was
both neutral, skilled and competent. The Adjudicator described the
internal investigator's work very positively, noting that the
investigator took the following steps to respond to the
Interviewed the Applicant;
Interviewed the Respondent;
Interviewed two eye witnesses to
the exchange, and two other witnesses who saw the applicant'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.
Employers should be considering the
following issues when workplace conflict arises and/or allegations
of harassment are asserted:
Whether to investigate or not in
the first place.This will depend on the nature of the conflict,
whether formal complaints are filed and whether the issues can be
resolved through more informal intervention by the employer.
The objectivity of the
investigator – an issue of contention in many of the
decisions where investigations have been challenged.Should a third
party be used or does the employer have a credible, trained
employee who can carry out an impartial investigation?
Is your investigation process
fair? (does it provide for adequate notice and disclosure of
relevant documents, an opportunity to be heard, an opportunity to
know the case against a respondent, an opportunity to review
notes/statements, an opportunity to know the outcome of the
investigation, an opportunity to have union counsel/counsel
The scope of the investigation
– ensuring that the investigator does not stray from the
Whether findings of fact can be
supported by the information gathered by the investigator.
Timeliness of the
Compliance with internal policies
and statutory obligations.
Whether or not to place employees
on administrative leave pending the results of the
Taking appropriate steps after the
investigation has been completed.
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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