We are often asked whether we believe that all investigations of workplace complaints must be conducted by an external party. Our answer is no. It has long been our view that employers can be well served by conducting many investigations themselves. The proviso here is that the employer must have a person or persons internal to the organization who have the experience and skill set to conduct an investigation competently, fairly, and in the end, in a manner that will be legally defensible. Indeed, it is our opinion that if this competency exists within the employer’s organization, the majority of complaints can be dealt with internally. It can refer the investigation of complaints to an external person in exceptional circumstances.
It is for this reason that we are always looking for decisions that show an employer’s well-executed internal workplace investigation. One recently crossed my desk. It was a May 11, 2015 case from the Ontario Human Rights Tribunal, Zambito v. LIUNA Local 183, 2015 HRTO 605 (CanLII). It is a perfect example of a well-executed workplace investigation that served the employer’s interests well, complied with the requirements of the Ontario Human Rights Code (the “Code”) and ultimately withstood a legal challenge.
The applicant (who had been the complainant in the internal investigation) was of Italian/Sicilian descent. He made a complaint in accordance with the employer’s policies, that he was harassed by virtue of his nationality and family. After he was laid off by the respondent, 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.
At the heart of the dispute was a conversation the applicant had with a co-worker. The applicant alleged that in the course of a discussion about cars and soccer, his co-worker told him that he was “not Italian” but “f**king Sicilian” and that his “grandmother and greatgrandmother f**ked black guys”. Not surprisingly, the co-worker recalled the conversation differently. He maintained that the applicant had made disparaging comments about his cultural background (he was Portuguese) and that any other comments were not directed to the applicant, but comments made about a movie.
The applicant’s internal complaint was given to the respondent’s in-house counsel to investigate. In the Tribunal’s decision, the Adjudicator noted that this person 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 and skilled and competent.
The Adjudicator described the steps the internal investigator took to respond to the complaint, all of which occurred shortly after the incident at issue occurred. The investigator:
- 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.
The Adjudicator affirmed that it is the employer’s legal obligation to investigate a complaint of a violation under the Code because it was “the “means” by which the employer ensures that it is achieving the Codemandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment”.
The employer had discharged this duty reasonably according to the Adjudicator. Indeed, the Adjudicator went beyond this conclusion by describing the work of this internal investigator very positively. He said:
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 findings 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.
As a result, the application was dismissed.
The conduct of a workplace investigation must be thought through, and the investigator needs a plan and the skills to act on that plan, to arrive at a reasonable conclusion. This case shows that this doesn’t necessarily need to be mesmerizing, and many employers who have the right internal resources, will be up to the task.