What happens when a workplace investigation is finished? Are the parties entitled to know the outcome and receive a copy of the report? A recent case from the Human Rights Tribunal of Ontario, Pilon v.Cornwall (City) 2011 HRTO 1695 (CanLII) sheds light on what an employer should do when the investigation comes to an end.
Ms Pilon was a long time employee of the City where she worked as a customer service representative in the Finance Department. Ms Pilon suffered from colitis, which required her to take frequent washroom breaks.
Ms Pilon had two conversations with her supervisor in which she was told that her use of the washroom outside of regular breaks was inappropriate. As a result, she wrote a letter of complaint to her employer in which she stated that she was angry and stressed that she had been asked to go to the washroom only during her breaks. She added that she had a medical condition and that her needs were not being respected. She reminded the City of its obligation to accommodate her due to her medical condition, and said that if there was a future problem, she would file a “harassment charge”.
The City commenced an investigation pursuant to its Harassment in the Workplace Policy. It was conducted by the City’s Labour Relations Co-ordinator and the Health and Safety Co-ordinator in Human Resources. Ms Pilon and witnesses were interviewed, and these interviews were captured on tape. At the end of the process, the investigators produced a report entitled “Informal Review on Allegations of Harassment in the Finance Department”. In it, the investigators concluded that while there had not been any violations of the Human Rights Code, Ms Pilon had been left with the impression that her washroom breaks were inappropriate. In addition, the investigators made seven specific recommendations dealing with the work situation.
The City reviewed the report, and being satisfied that there were no violations of the Human Rights Code, decided nothing would be done with it. That meant that none of the recommendations were implemented and Ms Pilon was not provided with a copy of the report or advised of the outcome of the investigation. Dissatisfied, Ms Pilon filed an application with the Tribunal arguing that she had been discriminated against on the basis of her disability.
At the Tribunal, Ms Pilon argued that the City had failed in its procedural obligations to her because she had not been told of the outcome of the investigation, nor had she received a copy of the Report. On its part, the City argued that it had conducted an informal investigation. As contrasted to a formal investigation which it said was also outlined in its process, there was no obligation to report back to Ms Pilon.
The Tribunal found in favour of Ms Pilon. Amongst other things, it concluded that there was not a distinction in the employer’s policy between a formal and informal investigation, and that as far as Ms Pilon was concerned, a formal investigation had been conducted into her complaint. Most importantly, the Tribunal held that reporting back the results of the investigation was a procedurally essential element of this investigation. It said:
“…it may not always be necessary to provide a copy of the report prepared after an investigation and one can imagine situations where it would be entirely appropriate not to do so. However, in this case, where an employee has made a formal request for accommodation and there has been an investigation leading to a report, it was appropriate and required under the Code’s duty to accommodate for the respondents to share the results of their investigation with the applicant. Instead of doing so, the respondents simply shelved the Report and did not share it in any way with the person who instigated the investigation. Given these facts, I find that (the respondents) failed…to appropriately investigate the applicant’s human rights concerns.”
What does this case mean for those conducting investigations?
- Critically assess the nature of your process at each step of the way and be prepared to modify it if circumstances warrant. If the employer has commenced an investigation or a review on an informal basis, but as it progresses, it is apparent that given the volume of the interviews, the subject matter of the allegations, or the nature of the employee’s complaint warrants it, it should consider using a more formal process.
- In order to close off an investigation, the employer should communicate with the complainant and explain the outcome. This does not necessarily mean providing the complainant a copy of the report, although if the policy requires the employer to do so it should, but it does mean telling the complainant what has occurred and, in our opinion, the findings that have been made.
- Decision makers are increasingly critical of the manner in which investigations are conducted. Therefore, employers should ensure that your workplace investigation process is pristine. In this case, there were a number of factors the adjudicator touched upon that suggested the City’s investigators was less than this standard. Tapes were made of the interviews, and these tapes were lost by the time of the hearing; the City purported to rely on a policy that did not clearly support what it was doing; and the investigators made recommendations that were not followed. Ultimately, the existence of these factors made it difficult for the City to defend the process it undertook