A recent decision by Vice Chair Derek Rogers of the Ontario Labour Relations Board (the “Board”) is an example of how badly a termination can go for an employer, if it occurs after an employee has made an internal complaint of harassment.
The decision is Saumur v. Commissionaires Ottawa Case No. 133-14 –UR). At the Board, the applicant/employee successfully argued that as the termination occurred after she had made a harassment complaint, it was a reprisal and violated subsection 50(1) of the Occupational Health and Safety Act (the “Act”). That section provides that no employee should be dismissed or disciplined (among other things) because the employee has sought enforcement under the Act.
The facts of the case are straightforward. The applicant made an internal complaint to the employer’s Employee and Labour Relations Manager (the “Manager”). She was concerned about two things. The first was her belief that her supervisor was having an affair with a subordinate, this resulted in the subordinate receiving preferential treatment, and that everyone in the workplace knew about it. The second was that her supervisor had subjected her to behaviour that was problematic. The applicant did not use the word “harassment” per se, but it was clear on the evidence that the Manager understood that if true, the allegation related to this type of behaviour.
The employer conducted an investigation of the complaint, using an investigator internal to its organization. However, the investigation was limited only to the allegation of the affair between the supervisor and the subordinate. The investigator concluded that on the balance of probabilities, the allegation was unfounded. He reached this conclusion in part because the applicant, realizing that other people in the organization would not back her up in terms of the existence of the relationship, agreed with the suggestion made by the investigator that this allegation was exaggerated. At the hearing, she maintained the veracity of her initial allegation.
The investigator did not consider the applicant’s harassment allegation. Indeed, the allegation was never put to the supervisor for comment or response. In characterizing the investigation, the Vice Chair stated that the investigation “bore no relationship to the complaint that (the supervisor) was subjecting (the applicant) to workplace harassment”.
There were other problems with the internal investigation that the Vice Chair commented on: The investigator interviewed the applicant but did not interview the respondent to the complaint. Instead, the investigator accepted a report from the respondent’s manager, that the respondent denied the allegation of the inappropriate relationship with the subordinate. Additionally, contrary to its policy, the employer did not communicate the results of the investigation to the parties.
At the end of the investigation, the employer disciplined the applicant with a formal warning, because she had made an allegation that had been unfounded. Indeed, it equated her unfounded allegation with unprofessional conduct. The letter warned that the applicant might be subject to escalated disciplinary action. The applicant was given further discipline several weeks later. This discipline was characterized as a final warning. Meanwhile, the applicant maintained that the respondent continued to harass her, and she reported this to the Manager. The applicant’s employment was terminated shortly thereafter.
The Vice Chair concluded that while the progressive discipline did not arise as a result of the applicant making the harassment complaint, (there seemed to be some factual basis for this) the termination did. Indeed, he found that “the responding party failed to present any meaningful evidence of a basis for its proffered explanation and rationale for the decision to terminate (the complainant’s) employment”.
This was because at the hearing, the employer did not produce any evidence to back up its allegations of further poor performance that could justify the decision to terminate the applicant’s employment. Therefore, the employer had failed to discharge its onus under the Act to substantiate its decision to terminate the complainant, and to show that the applicant’s harassment complaint was not “a motivating factor, no matter how small” for its decision. Indeed, this is the inference the Vice Chair was prepared to make given the lack of evidence. Therefore, the applicant was reinstated to her position and awarded lost wages and benefits from the date of termination.
What does this mean for employers?
- The test for a reprisal under the Act is whether the termination (or other act vis-à-vis the employee’s employment) is in part related to the fact that the employee sought to enforce his or her rights under the Act. As the Vice Chair stated here, that “part” can be a small part;
- The onus will be on the employer to provide a rationale for a decision to terminate an employee in these circumstances, and the evidence required to successfully discharge this onus will need to be compelling and exact. A general statement about the employee’s performance deficiencies will not be sufficient;
- If an employer intends to rely on the conduct of an investigation in a legal proceeding, or even if it just forms part of the backdrop, it should be certain that the investigation has been conducted properly. Mistakes such as the ones that occurred here, are avoidable if the investigator is trained and experienced, and is following a well drafted policy; and
- While the deficiencies in this employer’s investigation were not central to the Vice Chair’s conclusion and analysis, it did not help the employer’s case in that it made the employer look sloppy. In our view, this context made it easier for the Vice Chair to reach a conclusion that the employer had engaged in a reprisal.