Both the Ontario Human Rights Code and the Occupational Health and Safety Act require an employer to investigate complaints of harassment. When considering human rights or health and safety claims, courts and tribunals will give considerable weight to a properly conducted investigation. Investigations also make solid business sense by reducing liability and helping ensure that a workplace is as free of harassment as possible. Over the years best practices for workplace investigations have evolved, but decisions on the matter are consistent: bias is a critical factor in assessing the reasonableness of an investigation. What is the best way to avoid the appearance of bias? Engage a third-party investigator.
To illustrate the matter, consider the case of Zambito v. LIUNA Local 183 and Central Eastern Canadian Organizing Fund (2015 HRTO 605).
Mr. Zambito (the “applicant”) claimed that a coworker harassed him by making extremely offensive comments about his nationality and family. The applicant filed a complaint to his employer – in this case a union – who promptly referred this to in-house counsel. The counsel’s investigation found that the applicant was harassed, but that he himself also made objectionable and offensive remarks. The report recommended that both the applicant and the co-worker be suspended. The question for the tribunal was whether the employer failed to take reasonable steps to address the applicant’s claim.
The Human Rights Tribunal Vice-chair relied on the case of Laskowska for his decision. According to Laskowska an employer must investigate complaints to ensure that the rights employees enjoy under the Ontario Human Rights Code are meaningful. To achieve this end Laskowska sets out the test for assessing the reasonableness of an investigation. One key factor of that test is the manner in which an investigation is conducted.
The applicant argued that the employer did not meet the test because the investigator was biased against him. According to the applicant the investigator preferred the testimony of other witnesses clearly showing a biased view. The Vice-chair, however, found this argument unconvincing because the investigator:
- was a third party with no interest in the outcome of the investigation;
- followed an investigative process that included interviewing witnesses, making findings of fact and making recommendations in a straightforward, logical, internally consistent, and detailed manner;
- provided credible and reliable testimony about his investigation that was not shaken by cross-examination.
The Vice-chair concluded that the employer “easily” fulfilled its duty to take reasonable steps to address the applicant’s claim by providing a complaint mechanism, a reasonable investigation and communicating the result of the investigation to the applicant. The claim was dismissed.
- Employers should always ensure that employees have a straightforward internal process to submit their complaints.
- Prompt responses to complaints are critical.
- Independent, third-party investigators are critical to avoiding the appearance of bias which could be fatal to an investigation’s integrity.
- A professional workplace investigator can help you put the pieces together and ensure that, whatever the situation, you are assured that you took the right steps and handled the complaint appropriately and reasonably.
- Contact the experts at Bridge Legal & HR Solutions today for more information.
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