In the recent decision of Humber River Regional Hospital and Ontario Nurses Association (“ONA”) (Cherubino Grievance), an Ontario arbitrator dismissed the union’s grievance alleging harassment by a supervisor and found that neither management duties nor the employer’s internal investigation process should be held to a standard of perfection. This case also reminds us that internal investigations may still be appropriate in some cases, despite the more rigorous legal standards for workplace investigations now applicable in Ontario.
The case involved a registered nurse (the “Grievor”), who filed an internal complaint with the Hospital alleging differential and unfair treatment by her supervisor. In her complaint, the Grievor referenced a number of incidents of perceived harassment, including the inability of her supervisor to adequately address the Grievor’s interpersonal issues with other staff. The Hospital investigated the complaint and found it to be unsubstantiated. Subsequently, the ONA filed a grievance on the Grievor’s behalf, alleging that the Hospital violated the collective agreement and the Ontario Human Rights Code by failing to provide a harassment-free workplace. The ONA also asserted that the Hospital had conducted a flawed and biased investigation of the original complaint.
The arbitrator found that the supervisor’s conduct did not constitute harassment. In his reasoning, the arbitrator addressed the nature of the employee-management relationship and acknowledged that workplace interactions may sometimes be seen as unsatisfactory by employees like the Grievor. The arbitrator concluded that managers cannot be held to a standard of perfection and must have the “right to be wrong” without having to worry that every interaction could constitute harassment. Although good faith is not a full answer to an allegation, it should be considered in affording some leeway to managers exercising their supervisory duties. In addition, a pattern of vexatious behavior is often, but not always, needed for a finding of harassment. Applying this reasoning to the facts, the arbitrator found that although the supervisor’s conduct could have been improved, it did not constitute harassment.
The arbitrator also found that the Hospital investigated the original complaint in good faith in accordance with the collective agreement. In particular, the Hospital did not violate procedure or call into question the neutrality of the process by including a director in the investigation committee to whom the Grievor’s supervisor directly reported or providing the Grievor with a verbal, as opposed to a written, response to the complaint. The arbitrator noted that the rigour and process of an internal investigation is not comparable to a court of law and should not be held to the standard of judicial scrutiny.
This decision provides an important distinction between less than perfect management in unionized workplaces and conduct that constitutes harassment. However, the decision should be interpreted cautiously and with attention to the specific facts. In addition to the nature of the supervisor’s conduct, issues of credibility of both parties and the particular attitude of the Grievor played a role in the arbitrator’s dismissal of the claim. In any event, the decision nonetheless indicates that managers will be given some leeway in exercising supervisory duties.
The decision also establishes that imperfect harassment investigation processes are not necessarily deficient so long as they are conducted in good faith. However, it should be noted that this decision was made prior to recent amendments to the Occupational Health and Safety Act, which require employers to conduct an appropriate investigation into all incidents and complaints of workplace harassment. It is important to note, however, that it is still appropriate, and consistent with recent legislative amendments, to conduct internal investigations in response to some harassment complaints, particularly where the complaints are less serious and less complicated, and where it is possible to appoint an internal investigator who can review the allegations objectively. However, it is now more important than ever for employers to take allegations of harassment seriously and ensure that appropriate procedures are in place to address and investigate workplace claims thoroughly and in good faith.