FAILING TO CONDUCT A GOOD WORKPLACE INVESTIGATION BEFORE TERMINATING – JUST CAUSE NO MORE
The case: Fredricks v. The BTS Network Inc. (HRTO 2015, No. 1597).
The employee was a bus driver, who made a complaint alleging discrimination in the workplace related to harassment by another employee (involving racism). He was terminated no long after. The employee made a complaint to the Human Rights Tribunal, alleging reprisal for his complaint. The employer defended, alleging the employee was terminated because he continued to work part-time for another employer after he was allegedly told not to the employee disputed this. An important issue in the case was the manner in which the employer handled the workplace investigation of the employee initially, before terminating the employee.
The employee was successful. The HRTO determined that the employer did not conduct a proper workplace investigation. At the hearing, the employer testified that it took the employees complaint letter very seriously. The Adjudicator disagreed. She noted that the employers investigation (the Adjudicators quotation marks) consisted only of obtaining a written response from the co-worker identified by the employee as the source of the racist behaviour. It did not speak to the employee about his concerns to understand them better, nor did it speak to the co-worker. Rather the employer simply sent a letter to the employee which contained the co-workers responses, augmented by the employers own responses. The employers letter to the employee was criticized by the Adjudicator.
The Adjudicator also noted that the employers attitude to the fact that the employee had made an allegation of discrimination was made manifest by the way they reacted to his complaint. She added that having asked him to put his concerns in writing, they appeared to be deeply offended by what they read. She found the employers outrage was misplaced given the short shrift that the employer gave to the employees complaint.
Tips About Workplace Investigations:
- An important message of this case is that workplace investigations should not be done in a perfunctory fashion. The investigator (whether internal or not) should not only review the written complaint, but meet with the parties, and any necessary witnesses, in an effort to obtain additional information. This information then needs to be considered in a meaningful way before the investigator makes his or her decision.
- Beware of the presence of bias, particularly when it is an internal investigator who conducts the investigation. Here, the facts highlighted in the decision suggest that the employer had made up its mind vis-à-vis the allegations at the outset, and it went through the exercise of obtaining a response only in a pro forma fashion.
- Finally, as this case illustrates, an inadequate investigation can be successfully used by parties who wish to argue other aspects of a human rights case, in this instance, where the employee maintained that he was fired as a reprisal.
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.
December 7th, 2015
Posted in Labour & Employment