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Fairness is something that we talk about a lot as investigators, although we appreciate that the term can sometimes feel a bit nebulous. Here we have rounded up a couple of recent cases that put the concept into effect, and highlight the importance of ensuring a fair and unbiased investigation…
Where the investigator got it right:
In Cadostin v. Canada (Attorney General),¹ a decision of the Federal Court, an employee was investigated for having provided false references in an appointment process. In reviewing the decision of the Public Service Commission which found that the employee had committed fraud, the court considered whether the investigation process was procedurally fair.² Among other things, the employee argued that the investigator’s failure to provide him with the audio-recordings of his interviews until after the investigation was over was unfair. The court found that the investigator – who acted in accordance with the process set out in the policy at issue and provided the employee with a draft copy of her report to comment on – had acted appropriately. The court confirmed that an investigator is not required to provide an individual under investigation with the record of their testimony collected in the investigation, even when asked to do so, and that it is reasonable not to provide the audio-recordings of interviews in order to prevent potential leaks to witnesses who have not yet been interviewed and to safeguard the integrity of the investigation. The court concluded that the investigation process was fair and had afforded the employee the right to be heard and to respond to the case against him. The court dismissed the employee’s judicial review application.
Where the investigator got it wrong:
In Ontario Power Generation v Society of Energy Professionals,³ an arbitration decision, the union grieved the termination of one of its employees. The employee was terminated for allegedly inappropriate behaviour with a summer student, his alleged dishonesty during interviews regarding this behaviour, and his inappropriate initiation of a security wipe of his employer-issued phone. The employee grieved the termination, partially on the grounds that the investigation was biased and unfair.
The arbitrator found that the investigation was in fact biased and unfair. Among the issues identified, the arbitrator found that the human resources department did not go through the complainant’s written statement in any detail with the complainant, nor did they ask for any of the text message conversations that the complainant had excerpted in her statement, or probe the nature of her relationship with the respondent in any way. The arbitrator also took issue with the senior manager of human resources’ notes regarding a conversation she had with the respondent’s union at the outset of the investigation, and specifically the sentence: “We expect to simply identify to the employee the inappropriateness of the behaviour.” The arbitrator found that this sentence showed bias in that it implied that the employer accepted all the complainant’s allegations at face value and prior to speaking with the respondent. The arbitrator also found that the investigation was procedurally unfair in that the respondent was not given the complainant’s statement prior to the interview, nor provided with notice of the specific allegations against him. The arbitrator dismissed the employer’s argument that the investigation was conducted further to an informal process under the collective agreement that did not require the employee to be given the complainant’s statement, stating that regardless of whether the matter was dealt with as a formal complaint or not, the grievor was still entitled to procedural fairness. The arbitrator found that the unfairness of the process was compounded by the open-ended nature of HR’s questions to the respondent (example: “Have you ever made comments to the complainant about her appearance or clothing?”), rather than asking about the specific allegations at issue. Lastly, the arbitrator found that HR had misrepresented a witness’ evidence to the respondent, which the arbitrator referred to as a “momentary lapse in judgement” that should have been acknowledged earlier. The arbitrator ultimately held that the investigation was flawed, which mitigated some of the respondent’s alleged dishonest conduct in answering the interview questions. The employee was reinstated with conditions and given a period of suspension.
The fairness of an investigation and the ensuing termination of an employee were also at issue in Teamsters Canada Rail Conference v. Canadian Pacific Railway Company.4 The employee was dismissed for some of her off duty social media posts. The union grieved the dismissal on the basis that the investigation lacked impartiality. The arbitrator agreed and concluded that the investigation was not conducted in a fair and impartial manner. Among the issues identified, the arbitrator found that the investigator acted inappropriately when questioning the respondent, including abruptly interrupting her, and answering, “Too bad,” when she said that she was not done answering the question. The arbitrator also found that the investigator suppressed relevant evidence by failing to provide the respondent with the IP address for the alleged complainant in the matter when requested by the respondent (the respondent was requesting this information because the union took the position that the complainant was fictitious, created by the employer as a pretext to justify the investigation against the respondent). The arbitrator also took issue with the investigator not interviewing a witness that the respondent requested be interviewed, who the arbitrator identified as being relevant to the investigation. Lastly, the arbitrator found that the investigator’s refusal to allow the respondent to leave the interview until she agreed that the interview was “fair and impartial” to be an egregious demonstration of lack of fairness. The grievance was allowed in part. Given the breakdown in the relationship between the parties and the grievor’s post-discharge conduct, the grievor was awarded monetary compensation in lieu of re-instatement and assessed a 3-day suspension.
The above cases highlight the importance of conducting an unbiased and impartial investigation, and, in particular, treating the respondent fairly and ensuring they have the opportunity to respond fully to the case against them. Failing to do so could have serious consequences on any discipline taken with respect to the respondent as a result of the investigation.
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1 2020 FC 183
2 We note here the difference between “procedural fairness” and the “fairness” of a workplace investigation: “procedural fairness” refers to acting fairly in the process of administrative decision-making. The principles of “procedural fairness” can inform the fairness of a workplace investigation.
3 2020 CanLII 142 (ON LA).
4 2019 CanLII 131167 (CA LA).