In a recent case decided by the Superior Court of Justice of Ontario, employers are reminded how important it is to set up expectations of employee behaviour during the course of an investigation, and the consequences to employees if they fail to follow these expectations.
The case, Cavaliere v. Corvex Manufacturing, involved Frank Cavaliere, a 50 year old senior manager who had been employed by the company for 20 years. Corvex terminated Cavaliere’s employment for cause, after Mr. Cavaliere engaged in a sexual relationship with a female subordinate, notwithstanding its explicit warning to him not to do so. Corvex also relied on the fact that Cavaliere had approached a witness during the investigation, again after explicitly being warned not to do so. Both these facts lead to a successful defence against Cavaliere when he subsequently brought a wrongful dismissal complaint against the company.
The case is particularly helpful to human resources professionals and employers because it provides a good example of the benefits of setting up an investigation properly and communicating effectively with those involved. These benefits continue even if an employee is terminated and litigation follows. It is also a reminder of what is lost when workplace investigations are not recorded properly, and when inappropriate behaviour is condoned by the employer.
Direction Not to Talk to “Any Employee”
The evidence at trial was that Cavaliere had had a sexual relationship with a female subordinate, notwithstanding the fact that after a similar relationship in the past, he had been warned not to engage in these relationships in the future. While the trial judge accepted that the relationship was consensual, the judge noted that the subordinate was vulnerable due to her position, and the fact that she was an immigrant for whom English was not her first language. The relationship came to light when the woman’s husband complained to the employer. Corvex initiated an investigation, and as part of its process, it wrote to Cavaliere and told him that he was to “have no contact with any...employee”, clearly anticipating that some of these employees might be witnesses, but also presumably, to try and maintain as much confidentiality around the investigation as possible. This directive was also mentioned again in the course of the investigation, and Cavliere indicated that he understood and would abide by it.
Nevertheless, Cavaliere approached the continued woman with whom he was having the relationship, as well as her husband, and tried to convince them to withdraw the complaint. This, the trial judge stated was a “...flagrant breach of a legitimate and necessary direction, a breach of (Cavaliere’s) undertaking to the company, and an attempt to subvert the investigation – none of which is the type of conduct a company is entitled to expect from a senior employee”.
“Evidence” of Previous Workplace Investigation Not Accepted
The company also wished to rely on the fact that a few years prior to his termination, it had received an anonymous complaint which alleged sexually predatory conduct by Cavaliere. The company said that it had investigated this complaint. While this might have assisted in the employer’s case, the trial judge was not prepared to make any findings of fact here because neither the individuals involved in this investigation were called as witnesses, and more importantly, Corvex was unable to produce any written record of the investigation. The judge stated that “...for reasons which, to my dismay, have never been explained, satisfactorily or otherwise the notes allegedly taken during the investigation and the original complaint no longer exist”.
At trial it was revealed that another female employee had been sexually touched without consent by Cavaliere. She made a complaint to Cavaliere’s supervisor, who was the most senior person at the plant where Cavaliere worked. The supervisor told the female employee that if it ever happened again, she should be sure to let him know. He did not report this to human resources, the trial judge emphasized, “as he was required to do”, nor did he speak with Cavaliere about this. The trial judge characterized the employer as having “inexcusably condoned” this behaviour. Moreover, noting that the information had been reported to a senior manager, and he should have done something about this, the judge reduced the costs that the employer would have otherwise received because it had won its case against the employee.
WHAT CAN WE LEARN FROM CAVALIERE?
- Communicate to parties that they are not to talk about the investigation. It is important to set out in writing what you expect from parties involved in an investigation at the commencement of it. This includes not speaking to anyone else about the investigation. This not only prevents “witness tampering” and supports the integrity of the investigation, but also helps contain the investigation itself. We recommend that this type of communication become part of an employer’s standard workplace investigation practice.
- Keep records. It is imperative that notes, documents and reports that are part of a workplace investigation be retained in a safe place for future reference if required. In this case, the employer could rely on other facts to ground its case for cause. If the only conduct at issue would have been that dealt with in the prior investigation, the employer would have had no case, as it had no record. We recommend that employers should also establish record retention as part of its standard workplace investigation practice.
- Report and investigate complaints when they are made. This case is one among many which illustrates that managers have a special duty to report complaints of inappropriate workplace behaviour to the company. Sadly, this is an obligation that is recognized by many of those in human resources, but not by managers themselves. As workplace investigations become more commonplace, it is imperative that managers are trained to report all complaints coming to their attention to human resources.