Last year we reported on an Ontario Superior Court decision where the court was leery of Honda’s decision to terminate an employee during the course of an investigation, holding that a trial was needed to determine whether the employee was dismissed to side step “the criteria for fair treatment” owed to him. This year, the Ontario Human Rights Tribunal (the “Tribunal”) awarded substantial damages to an employee as a result of, among other things, Honda’s failure to adequately investigate his allegations of harassment.
Russell Sears had been employed with Honda of Canada Manufacturing (“Honda”) since 2001. Throughout his employment Mr. Sears had several vision-related issues, and although he was eventually accommodated, when he was dismissed in February 2012, he alleged that his dismissal contravened the Human Rights Code (the “Code”). Specifically, Mr. Sears argued that he had not been accommodated nor protected from Code-based harassment. On the latter point, Mr. Sears had complained in January 2011 that he had been called a “blind dog” in 2009 by a team leader and poked in the ribs with a T-jig in late August 2010. He also alleged that in July 2011 his team leader had not adhered to the accommodations Honda had provided to him. Mr. Sears argued that Honda had been made aware of these incidents but that it did not fully investigate these incidents.
Having first concluded that Honda breached its duty to accommodate, the Tribunal turned its attention to the investigation conducted into Mr. Sears’ allegations of harassment.
The Tribunal noted that a representative of Honda’s human resources department met with Mr. Sears in February 2011 and investigated his allegations in March 2011 before concluding that they were without merit. The representative’s investigation notes indicated that while witnesses and respondents denied or did not recall disrespectful behaviour towards Mr. Sears, they recalled “comments” being made in general but that these comments were not meant to be “hurtful”. His notes also indicated that the individual accused of poking Mr. Sears in the ribs with a T-jig admitted that “at some point he may have poked [Mr. Sears] in a joking manner”, but denied that he had poked Mr. Sears on the specific date set out in the complaint. The representative seemingly did not follow-up on this admitted poke and as such there was “no evidence to clarify” as to when this incident occurred and its connection with Mr. Sears’ allegation.
Mr. Sears’ allegation from July 2011 with respect to his team leader not respecting his accommodations was never investigated. Instead Mr. Sears was advised to “stick to work within his restrictions and to speak to [the representative] if he had any difficulty doing so”.
In assessing Honda’s investigation, the Tribunal reminded employers that “it is well-established in the Tribunal’s jurisprudence that the Code imposes a duty on organizations to investigate a complaint of discrimination, and that a failure to investigate can attract liability, even if the Tribunal ultimately dismisses the underlying allegations of discrimination.”
The Tribunal then reviewed three factors in determining whether an investigation was adequate:
- Awareness of issues of discrimination/harassment: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/ harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
- Post-complaint: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively; and
- Resolution of the complaint: Did the employer provide a reasonable resolution in the circumstances? Did it communicate its findings and actions to the complainant?
Applying this analysis to the first investigation, the Tribunal found the representative’s lack of probing troubling and “difficult to square with a conscientious attempt to determine what had occurred” as he could not confirm whether the information he received from witnesses and the respondent (i.e. poking Mr. Sears at some point) was indeed different from Mr. Sears’ allegations.
With respect to the second set of allegations, the Tribunal found that there was a lack of investigation and thus a failed opportunity to see whether supervisory employees involved in the accommodation process fully understood their responsibilities (or took them seriously). By failing to the Tribunal held that Honda passed up the chance to “take appropriate action to prevent a repetition of the problem.”
The Tribunal further found that Honda did not have an adequate antidiscrimination/ harassment policy and a proper complaint mechanism. Despite Honda providing its policies at the hearing, the Tribunal held that there was no evidence that adequate training on its anti-discrimination/ harassment policy and procedures was given to management and employees.
In assessing the intangible loss suffered by Mr. Sears, the Tribunal commented that Honda’s “failure to adequately investigate [Mr. Sears’] complaints obviously led to a lack of confidence and was not compatible with respect for [Mr. Sears’] dignity as a human being.” The Tribunal continued that “while it is difficult to judge how much of [Mr. Sears’] humiliation, loss of self-respect and anxiety can be attributed to [Honda’s] failure to adequately address his complaints of discrimination, this failure clearly exacerbated his distress.” In the end, the Tribunal ordered $35,000 for compensation as a result of Honda’s flawed investigation and its failure to adequately accommodate Mr. Sears.
What does this mean for employers?
- Ensure training on policies. Creating policies on workplace harassment and discrimination is only one aspect of the compliance process required by the Occupational Health and Safety Act and the Human Rights Code. As the Tribunal notes, ensuring training on the policies and consistent application of the policies (i.e. through investigations) is key to demonstrating a functioning compliance mechanism.
- Investigate complaints. When a complaint has been made, simply accepting the allegations or side-stepping them by offering a sounding board to the complainant does not make for an adequate response. Instead, complaints must be taken seriously and dealt with promptly in a manner consistent with internal policies.
- Follow leads in an investigation. When an investigation is in process, there may be additional information that is unearthed by the investigator. If the initial information can reasonably relate to the allegations, failure to follow-up on these leads can be costly. Investigations should not be so narrow in focus as to ignore related information by only seeking confirmation or denial of the specific allegations. Otherwise, an employer may not be receiving the information it needs to make a solid conclusion and may, therefore, not be resolving the complaint in its entirety.