A recent Ontario Human Rights Tribunal (the “Tribunal”) decision, Lavoie v. Calabogie Peaks, 2012 HRTO 1237, shows that sometimes an imperfect workplace investigation is good enough. At the same time, it does provide a shopping list of common mistakes employers make when conducting investigations.
An employee complained that she was sexually harassed by a co-worker while working as a server in the dining room of a small, family-owned resort. She claimed that this harassment occurred over a 9-month period and that she complained to both her co-worker and her supervisors at the resort.
The resort’s management initiated an investigation, which was suspended after a meeting between the parties. During this meeting, the employee withdrew her complaint, according to the Tribunal. The employee was subsequently dismissed, and she filed an application with the Tribunal. She alleged that her termination was discriminatory and a reprisal against her for making a sexual harassment complaint. The resort denied any breach of the Code and claimed that it responded appropriately to the employee’s sexual harassment complaint by conducting an investigation and holding a meeting with the parties to resolve the matter.
The Tribunal found that the employee had not been subjected to sexual harassment in the workplace and that her termination was not discriminatory or a reprisal within the meaning of the Code. Nevertheless, the Tribunal turned its attention to the sufficiency of the resort’s response to the complaint of
sexual harassment, noting that the resort had a duty to carry out a reasonable investigation and respond appropriately to the employee’s allegations.
In reviewing the resort’s investigation itself, the Tribunal outlined several flaws:
- The resort did not obtain specific dates, times or other supporting details of the employee’s allegations;
- The resort did not take notes or a written statement when they first met with the parties or other witnesses;
- The resort did not make specific arrangements about how the parties would be treated during the investigation process;
- The resort did not follow-up with the employee to clarify details, timelines, the specifics of her allegations and to identify potential witnesses;
- The resort’s management did not provide the specifics of the allegation to the respondent and allow him the opportunity to respond to the employee’s complaint;
- Questions put to the parties and witnesses were broad and vague;
- The resort did not retain the notes from interviews or a list of persons interviewed;
- The resort did not contemplate the appropriateness of a face-to-face meeting between the parties;
- The resort did not follow-up with the employee to explore her reasons for withdrawing the allegation;
- The resort did not report the results of their investigation to the employee, maintain any record of it or prepare a report explaining the outcome.
Despite these flaws, the Tribunal did not find that the resort breached the Code. First, the Tribunal found it possible that if the employee had not withdrawn her complaint, the investigation would have become more formal and the procedural errors would not have been made. Second, the Tribunal judged the investigation on the reasonableness standard in light of the sophistication of the management and the size of the workplace. Satisfied that the resort had made a good faith effort to investigate the allegation, the Tribunal found that it had adequately dealt with the applicant’s complaint and was not liable under the Code.
What does this mean for employers?
This case suggests that the sufficiency of a workplace investigation will be considered in the context of each workplace and each complaint. That being said, in our
view, this case should not be seen as a carte blanche to carry out sloppy investigations. Indeed, the Tribunal’s review of the very specific details of how this investigation was conducted, suggests that it is prudent for employers to ensure that their investigations are conducted in a fair and thorough fashion, so that they are legally defensible if challenged. To meet this mark, employers should:
- Ensure that the complainant and respondent are aware of the investigation procedure.
- Ensure that the specific details of the allegations are obtained and follow-up with the parties should new details come to light.
- Ensure that the respondent is aware of the specific allegations against him or her and that they are given the opportunity to respond to the allegations.
- Ensure that notes from the investigation interviews are taken and retained.
- Ensure that the results of the investigation are communicated to the complainant and respondent and outline the steps that will be taken to resolve the matter.