Workplace investigators are charged with providing a fair process to the parties involved. This is not the Procedural Fairness or Natural Justice of courts and administrative bodies. Rather, it is a looser model that has the workplace as its context. The content of that looser model is a matter of discussion in the case law. We know from numerous decisions, for example, that a respondent is entitled to know the allegations against him or her. We also know that parties are entitled to know the outcome of the investigation. But what about witness evidence? Is a respondent entitled to know what the witnesses’ versions of events are? This remains unsettled in law although in Clarke v. Syncrude Canada Ltd., 2013 ABQB 252, a recent case from the Court of Queen’s Bench of Alberta, suggests that it is not necessary for the employer to divulge this information.

The facts of the case are straightforward. Mr. Clarke, who was a long term employee of Syncrude, was terminated for cause after an evening in which he apparently consumed excess alcohol and sexually harassed a number of professional colleagues. These colleagues were employed by Sun Life, who provided services to Syncrude. In the words of the trial judge, Mr. Clarke behaved like an “obnoxious boor” during the evening in question. He was 55 years old and employed as the Assistant Comptroller at the time of his termination.

Syncrude conducted a formal investigation, and Mr. Clarke was provided with the allegations made against him. He responded both verbally and in writing. The Sun Life employees were interviewed by Sun Life and Mr. Clarke was interviewed by Syncrude. Mr. Clarke was not provided with the witness statements of the Sun Life employees. It would appear from the decision that this would have included statements from the women who had been harassed. A termination hearing was held, and Mr. Clarke was dismissed. Mr. Clarke maintained that he did not remember the events of the evening, which the investigators took to be sincere.

At trial, Mr. Clarke’s counsel argued (amongst other things) that in failing to provide him with the witness statements, he had been deprived of procedural fairness. This was bad faith dealing. The argument was rejected by the trial judge who said that “cases of wrongful dismissal are matters of private law which do not attract the requirement of judicial review style procedural fairness analysis as found in public law”. In addition, relying on the case van Woerkens v. Marriott Hotels of Canada Ltd.,1 the trial judge indicated that a flawed investigation doesn’t necessarily preclude a finding that just cause existed. Mr. Clarke had been provided with the outline of the allegations made against him. In the trial judge’s view, that was sufficient for him to understand the case he had to meet. The case is under appeal.

What does this case mean?

  1. In our opinion, this case should not be the definitive word on the subject. While workplace investigators do not need to meet the legal standard of capital “F” fairness, their processes must still be fair. If they are not, there may be consequences in terms of additional bad faith or punitive damages. Notwithstanding the Court’s decision, it is our view that there will be times when fairness dictates that witness information needs to be shared. We look forward to the appeal decision on this matter.
  2. Fairness will depend on the circumstances of each workplace investigation, and it is the investigator’s job to determine what is required. In our view, there should be a proportionate relationship between the seriousness of the allegations and the severity of the possible consequences, with the contents of the fairness provided to the respondent. For example, if the respondent has been accused of sexually assaulting a complainant, and there is a corroborative witness, we think the respondent is entitled to know that, and know that in advance of the respondent providing a response.