We often find ourselves writing about cases where an employer’s workplace investigation has been flawed, and the legal consequences that follow. That is not the case here. The Ontario Human Rights Tribunal concluded that the University of Waterloo got it right.
In Morgan v. University of Waterloo1, the University of Waterloo (the “University”) was tasked with defending its investigation of a sexual harassment complaint lodged by one of the University’s counsellors.
The counsellor was employed in the Counselling Services Department of the University, and in June 2009 attended a dinner and dance at the conference of the Canadian Association of College and University Student Services.
Following this conference, the counsellor initiated a sexual harassment complaint, alleging that during the conference another counsellor had made a sexual advance towards her, including putting his arm around her waist and touching her buttocks, despite her clear communication to him that she did not welcome such contact. The counsellor reported these incidents the Director of Counselling Services, and an investigation into her complaint immediately ensued, during which time the respondent worked away from the counsellor at a satellite office.
The University’s investigation was conducted by the Director of the University’s Office of Conflict Management and Human Resources. He met with the complainant, the respondent, and witnesses present at the conference, after which he prepared a report for the Director summarizing his findings. The Director then prepared a letter to the complainant stating that the investigation had not revealed direct evidence to substantiate her complaint; the respondent would return to his usual office; and the Director was available to assist in restoring the parties’
“The Tribunal then turned its attention to the University’s investigation, and confirmed that the standard for assessing an employer’s response to an allegation of discrimination was reasonableness, and not perfection or correctness.”
However, when the respondent returned to the office, the complainant again complained to the Director that the respondent had violated her personal space on several occasions by standing too close to her or refusing to move aside when they passed one another in a hallway. When the respondent denied these allegations, the Director sent the complainant a letter asking her to not report any further incidents involving the respondent unless they involved physical contact.
Dissatisfied with the University’s response, the complainant commenced an application with the Human Rights Tribunal (the “Tribunal”) against the respondent and the University, alleging among other things, that she had been sexually harassed by the respondent; and that the University had failed in its duty to investigate her initial and subsequent allegations of sexual harassment.
The Tribunal found that the complainant’s initial complaint of sexual harassment was indeed substantiated by the evidence, but that her subsequent allegations were unfounded. As a result, the Tribunal ordered the respondent to pay the complainant $7,500 as compensation for injury to her dignity, feelings and self-respect, plus $278 as special damages for her out of pocket medical expenses.
The Tribunal then turned its attention to the University’s investigation, and confirmed that the standard for assessing an employer’s response to an allegation of discrimination was reasonableness, and not perfection or correctness. The Tribunal then outlined that the following six elements should be analyzed in determining whether an investigation is reasonable:
- The response must be prompt;
- There must be corporate awareness that the conduct complained of is prohibited;
- The matter must be dealt with seriously;
- There must be a complaint mechanism in place;
- The corporation must act so as to provide a healthy work environment; and
- Management must communicate its actions to the complainant.
The Tribunal held that although the University came to a different conclusion than it had with respect to the sexual harassment complaint, its investigation was reasonable and met the duty to investigate under the Human Rights Code.
The Tribunal was convinced that the University took the complainant’s complaints seriously, as evidenced by them removing the respondent from the workplace; meeting with several witnesses; and producing a substantive report which included a summary of the investigator’s findings, a chart with facts, and a section on the credibility of witnesses.
The Tribunal was further convinced that the University met its duty to investigate because it had a well-established and structured complaints mechanism which utilized persons with specialized investigative skills and human rights knowledge.
Lessons for Employers
- Set up and follow a policy to deal with complaints: The policy provides structure when a complaint of misconduct and/ or policy violation occurs, and should at a minimum, outline to whom/where complaints should be reported and the steps that will be taken to address the complaint. The existence of such a policy, and more importantly the consistent use and application of this policy will evidence an employer’s serious response to a harassment or discrimination complaint.
- Utilize a knowledgeable and experienced investigator: An investigator who understands the employer’s policies and procedures, and who is also neutral and able to understand the nuances of harassment and discrimination complaints, can shield employers from procedural pitfalls that arise during and after investigations.
- Ensure that the investigation report captures the investigation: The investigation report ought to memorialize the investigation process, including any unforeseen circumstances or delays; the evidence of the parties and witnesses; and an analysis of the evidence through findings and/or conclusions. A well-reasoned report encapsulating these tenets will go a long way showing the extent to which an employer engaged with and responded to a complaint.
“The Tribunal was further convinced that the University met its duty to investigate because it had a well-established and structured complaints mechanism which utilized persons with specialized investigative skills and human rights knowledge.”