“I cannot reasonably conclude that an investigation conducted by a manager who has been in a romantic relationship with the Complainant is reasonable or appropriate in these circumstances.”

That is just one of the investigation flaws found by NSHRC Chair, Kathryn Raymond, in the matter of Cromwell v. Leon’s Furniture Limited in a decision rendered April 8^th, 2014 (2014 CanLII 16399 (NS HRC)). In all, the Commission Chair found that the employer’s investigation fell far short of what would constitute a reasonable investigation.

Garnetta Cromwell had been employed at Leon’s Dartmouth store for 3 ½ years before she resigned alleging racial discrimination. Leon’s commenced an investigation soon thereafter culminating in a report which found that no racial discrimination had occurred.

A bit of background is necessary. The Complainant alleged in her resignation letter that she had been subjected to racial discrimination that took many forms: her hair was referred to as ‘wool’; she was called “Condoleezza Rice”, “Contessa”, and “Sunshine” by her Manager; she complained that she had been treated unfairly in the imposition of discipline; and when she walked in with her Manager for her performance review he made a comment about a ‘lynching’. The investigation was kept in-house and conducted by the Area Manager who had a previous romantic relationship with the Complainant. No one knew about the relationship and its existence only came to light at the hearing.

When the Area Manager reviewed the resignation letter, he immediately called the Complainant and asked her to attend a meeting with her Manager, who was the alleged harasser, and HR to attempt an informal resolution to the matter. The Complainant refused to meet at this time and was not contacted again. As a result, she did not know about the commencement of an investigation, was not asked to participate in the investigation, and was not informed of the investigation outcome.

Leon’s relied on Laskowska v. Marineland of Canada Ltd. (2005), 2005 HRTO 30 (CanLII), which decision enunciated a 3 part criteria of corporate reasonableness in responding to allegations of harassment and discrimination. The criteria are:

1.  Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training

The inquiries to be made are: whether there was an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees?

Leon’s relied on the existence of its policies, particularly the Training Manual, which spoke to investigating employees’ legitimate concerns, and the fact that it investigated the complaint once it became aware of it.

The Commission Chair found that while there were policies in place, they were lacking in detail and focus respecting discrimination. There was no evidence of employees or management receiving any or effective education/training in discrimination or the complaint mechanism to be followed if they believed that they had been discriminated against. (See Part 2 of this blog to come for a more complete discussion of the policy lapses and lack of training.)

2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action

The inquiries to be made are: once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act?

Leon’s stated that there was an immediate investigation into the complaint once it was made and the Area Manager’s own evidence was that he felt he was “a little more ferocious” in his approach and he wanted to “drill down into it”. As soon as the complaint came to light, the investigator contacted the Complainant and asked her to come in for a meeting but she did not want to meet with him. The investigator met with 27 employees in 2 days and the staff who knew why he was there at the store were shocked and angry and indicated that they had never witnessed any racism in the store. In all, Leon’s relied on the evidence of the investigator as confirmation that it conducted a bona fide investigation into the complaints.

The Commission Chair found that the investigator was in a clear conflict of interest wherein he had been involved in a relationship with the Complainant, about which he told no one, and proceeded to investigate her complaint of racial discrimination. This conflict of interest undermined the reasonableness of the investigation and called into question the bona fides of the Report findings. While the investigation was commenced in a timely fashion, the Complainant was not informed of nor asked to participate in the investigation.

Additionally, the investigator found nothing untoward in the experiences of the Complainant even though he had corroboration of racially discriminatory statements made to her. The investigator had evidence from another Manager who was present at the beginning of the Complainant’s performance review and heard the ‘lynching’ comment directed toward the Complainant yet he concluded that she had not been subjected to racial discrimination. The investigator had no understanding of what constituted discrimination and the role that intention plays. That the investigator concluded that no racial discrimination was visited upon the Complainant because he found that there was no intention to discriminate clearly supports the unreasonableness of his conclusion. It was also concerning that the Complainant had made additional allegations, such as about her treatment by other sales associates, improper employee banter in the store, and the differential treatment she received in relation to disciplinary matters, which were unaddressed in the Report.

3. Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication

The inquiries to be made are: did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

Leon’s stated that it did the best it could in the circumstances, given the Complainant’s non-participation in the investigation. It conducted an investigation and concluded that no racial discrimination was present in the workplace and sent the Complainant’s Manager, who allegedly made the comments, a warning letter. Leon’s did not have a recent address for the Complainant so it could not communicate with her. Moreover, Leon’s recognized that it had a duty to provide a healthy workplace free of harassment and it submitted that it made thorough efforts to ensure that a healthy work environment was maintained.

The Commission Chair concluded that there is an expectation that the investigation findings and follow up actions would be communicated to the Complainant. While Leon’s may not have had Ms. Cromwell’s most recent address, there was nothing to prevent them from sending a letter to her last known address. The company did not even attempt to convey the outcome to the Complainant. Moreover, Leon’s letter to the Respondent did not disclose anything about the actual complaint or the investigation outcome, nor did it communicate any behavioural expectation of the Respondent on a go-forward basis. The evidence was that all of the witnesses interviewed supported the Respondent and so the Commission Chair found that the Complainant clearly could not have been returned to work as this would have resulted in a hostile work environment.

What are the take aways?

1. Ensure that the investigator has expertise in the subject matter of the complaint
2. Avoid situations that may give rise to a conflict of interest, for example consider an external investigator if a neutral internal investigator cannot be found
3. Once the decision has been made to investigate, immediately notify the Complainant and Respondent that an investigation is underway and that all parties are expected to participate
4. Ensure that the Report addresses all of the allegations and makes clear findings of fact based on the whole of the evidence
5. Communicate the investigation outcomes and the actions that have or will take place, as appropriate, to the Complainant(s) and Respondent(s)

Kenda Murphy