A recent adjudication decision, LaBranch v. Treasury Board (Department of Foreign Affairs and International Trade), gives employers some insight into their responsibility to investigate incidents of harassment and/or discrimination in the workplace where the employee does not file an official workplace complaint, but instead communicates to the employer in a more general way, her concerns about experiencing harassment and discrimination in the workplace.

The employee, an observant Jewish woman, was working on a temporary secondment at Passport Canada. While there, she experienced the following:

  • An onerous change in policy with respect to justifying absences related to religious observances;
  • Upon being asked to attend a conference which ended on the beginning of Shabbat, the employee requested and obtained approval to extend the trip to accommodate her religious observance. Following her return, the employee was accused of having violated the employer’s travel policy and was asked to reimburse her expenses for her “weekend getaway”;
  • Comments made with respect to how the employee was isolating herself by not participating in “dress down” Fridays and not attending group outings in popular restaurants;
  • A request that she explain the meaning of her Jewish observances in a staff meeting in order to reduce complaints about her.

Subsequent to all of this, the employee’s managers received a number of anonymous, threatening and anti-Semitic letters, including an email that originated from outside the organization. This communication was directed against the employee, and contained information of which only a small group of people within Passport Canada had knowledge.  

The employee was advised of the letters and sent home on an administrative leave. She later e-mailed several people (including management) at Passport Canada, voicing her concerns about the anonymous correspondence and outlining a chronology of incidents of discrimination that she experienced in her employment (including those acts described above). She specifically requested that the employer address the incidents and provide her with a safe workplace. She also identified herself as a “victim of anti-Semitism”.

Passport Canada conducted what it referred to as an “administrative” investigation, the purpose of which was to determine who was responsible for the anonymous complaints. No one communicated with the employee during the course of the investigation. The employee’s concerns regarding anti-Semitism were not pursued by the employer.  

As far as the “administrative” investigation that Passport Canada did do, the employee was advised that her employer had been unable to establish the source of the anonymous letters and emails and that there would be no other investigation unless new facts arose. Despite the fact that the correspondence contained evidence that the originators of the correspondence had information known only to those internal to Passport Canada, management discounted the anonymous letters indicating that they had no obligation to investigate threats from outside the agency.

The employee filed a grievance. She argued, amongst other things, that the failure to investigate her concerns regarding harassment and discrimination, had the effect of violating her rights under the collective agreement and the Canadian Human Rights Act.

By way of response, the employer indicated that it did not identify the employee’s email and chronology as a formal discrimination complaint and as a result it did not have a responsibility to conduct an investigation into the incidents. The Adjudicator did not agree. With respect to the employer’s duty to investigate in these circumstances, the Adjudicator stated the following:  

“While the grievor could have perhaps acted more formally, this does not relieve the employer from its responsibility to investigate a situation plainly presented to it. Eliminating discrimination in the workplace is the responsibility of the employer, not the grievor. The employer must address an employee’s concerns as soon as they are raised. In addition, the employer must actively implement effective mechanisms to monitor discriminatory conduct when it is brought to its attention as well as investigate and remedy all incidents of discrimination. The employer cannot simply invoke a zero-tolerance policy for workplace discrimination and hope for a discrimination-free work environment, yet do nothing to achieve it.” [our italics]  

With respect to the employer’s argument that they had no obligation to properly investigate the anonymous letters because they were threats from outside the agency, the Adjudicator stated the following:  

“As much as the employer would like to believe that it cannot be responsible for the discriminatory actions because it could not identify the perpetrator of the anonymous correspondence, the employer could not ignore that the discrimination… [was] work related.”  

The Adjudicator therefore found that the employer was obligated to investigate all incidents (anonymous or not) and complaints of discrimination and harassment. Because it failed to do so, the employee was entitled to damages.

WHAT DOES THIS MEAN FOR EMPLOYERS?

  1.  This case reinforces an employer’s requirement to investigate all conduct and behaviour that is suggestive of workplace discrimination and harassment, regardless of the manner in which information relating to such conduct and behaviour comes to its attention. It is obviously preferable for employees to come forward with a formal complaint, because it clearly communicates to the employer that it must respond. However, as this case shows, there are occasions short of filing a complaint, when an employer is effectively put on notice of problematic behaviour because it simply receives the information. It is that receipt of information that triggers the obligation to investigate.
  2. This case also illustrates the particular challenges employers face when dealing with a matter of inappropriate workplace behaviour, where the person responsible may be outside of the organization, or simply cannot be identified. While it may be that in this type of presentation, the wrongdoer may never be revealed, the possibility of this outcome does not in and of itself, absolve the employer from investigating, and at least attempting to address the situation. In our view, this obligation would equally apply to situations in which the employer receives an anonymous complaint, in which harassment and or discrimination is claimed to have occurred. The employer must still make an attempt to investigate the behaviours or conduct that is alleged to have taken place.