A recent decision of the Ontario Human Rights Tribunal is a good illustration of what an inadequate workplace investigation looks like. As employers gear up for the newly proposed statutory requirement to investigate under Bill 132, it is worth considering what a legal decision maker may find lacking in an employer’s internal process.
The case, Fredricks v. The BTS Network Inc. (2015 HRTO 1597) focussed on whether an employee had been terminated as a reprisal for raising allegations of racial discrimination and harassment. The employee was a driver for the employer’s bus company. He had worked for the company for just over a year before he was terminated. The employer took the position that the employee had been dismissed because he had continued to work for another bus company part-time when he had been told that he was not allowed to do so. The employee maintained that this was never a condition of his employment, and that in fact, he had been terminated as a reprisal for making a complaint that he was subject to racist behaviour. To that end, he argued that a short time before his termination, he had provided his employer with a complaint, in which he alleged that he had experienced difficulty with a co-worker, some of which he linked to racism. He filed an application at the Human Rights Tribunal of Ontario against his former employer, as well as one of its employees in her personal capacity.
In finding for the employee, Adjudicator Overend carefully reviewed the facts leading up to the employee’s termination, which included an examination as to how the employer had responded to his complaint. At the hearing, the employer testified that it took the employee’s complaint letter very seriously. The Adjudicator disagreed. She noted that the employer’s “investigation” (the Adjudicator’s quotation marks) consisted only of obtaining a written response from the co-worker identified by the employee as the source of the racist behaviour. It did not speak to the employee about his concerns to understand them better, nor did it speak to the co-worker. Rather the employer simply sent a letter to the employee which contained the co-worker’s responses, augmented by the employer’s own responses. The letter concluded that “this is not a case of racism, harassment or intimidation; but simply misperception and misunderstanding between two co-workers”.
At the end of the letter, the employer advised the employee that he could contact the employer’s representative directly if he wished to speak to her further, but in the next line, advised him that she would be meeting him in the next few days to conduct performance reviews. The Adjudicator stated that she did not find it surprising that the employee did not speak to the employer given the timing of the performance review.
The Adjudicator went even further. She noted that the respondents’ attitude to the fact that the employee had made an allegation of discrimination was “made manifest by the way they reacted to his complaint”. She added that “having asked him to put his concerns in writing, they appeared to be deeply offended by what they read”. She stated that its outrage was misplaced given the “short shrift” it (the employer) gave to the employee’s complaint.
What does this mean?
- The central message of this case is that workplace investigations should not be done in a perfunctory fashion. The investigator (whether internal or not) should not only review the written complaint, but meet with the parties, and any necessary witnesses, in an effort to obtain additional information.This information then needs to be considered in a meaningful way before the investigator makes his or her decision.
- Beware of the presence of bias, particularly when it is an internal investigator who conducts the investigation. Here, the facts highlighted in the decision suggest that the employer had made up its mind vis-à-vis the allegations at the outset, and it went through the exercise of obtaining a response only in a pro forma fashion.
- Finally, as this case illustrates, an inadequate investigation can be successfully used by parties who wish to argue other aspects of a human rights case, in this instance, where the employee maintained that he was fired as a reprisal.