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Time has always been of the essence in workplace investigations. In our practice, we go so far as to qualify time as one of the pillars of an investigation. As considerable as it already is, its importance may have reached another level with the recent decision in Toronto District School Board v. Canadian Union of Public Employees, Local 44001. In that case, Arbitrator John Stout found the failure to conduct a timely investigation to be a stand-alone ground to conclude a violation of the Ontario Human Rights Code (“the Code“).
August – September 2018
On August 29, 2018, the complainant, a person of colour and a head caretaker for the Toronto District School Board (TDSB) at the Eglinton Junior Public School, had a disagreement over the mail slots with the respondent, the school’s office administrator. She was allegedly verbally and physically abusive towards him while some students’ parents and his co-worker were nearby. The complainant reported the incident immediately to several members of the school’s administration, including its principal. He further filed two reports and then, on September 20, 2018, followed with a complaint which was the basis of the Union’s grievance.
July – December 2019
The TDSB did not respond to the complaint until July 26, 2019. It initially took the position that the school’s administration and employee services were the appropriate avenues to address this single incident. At that time, the complainant had transferred to another facility in a higher rated position after several shifts with the respondent without any further incidents. The Union immediately filed a grievance in which it alleged the TDSB’s liability for subjecting the complainant to harassment and failing to investigate his complaint properly. In response, the TDSB swiftly reconsidered its initial position and decided to investigate the complaint.
January 2020 – March 2021
The investigation did not begin until January 2020 because of delays caused by a significant backlog at the Human Rights Office of the TDSB. The investigation was further delayed because of the availability of witnesses, and due to some of the evidence provided by the complainant. By the conclusion of the investigation on March 5, 2021, the complainant was retired from work. The Human Rights Officer found that most of his allegations were substantiated. In the same vein, they concluded that the respondent breached the TDSB’s Workplace Harassment and Prevention Policy P034.
The Arbitrator found the single incident of 2018 to be a blatant violation of the TDSB’s workplace harassment policy, but not a violation of the Ontario Human Rights Code. Expressly, it was a one-time occurrence rather than a pattern of vexatious behaviour, and no evidence demonstrated that factors such as the ‘complainant’s colour and race were the reasons behind the respondent’s disrespectful behaviour.
Nonetheless, the Arbitrator found that the employer’s failure to promptly investigate the incident, by itself constituted a violation of the Code.
Indeed, according to them, the TDSB’s failure to act and investigate in a timely manner was unreasonable since the complainant provided all the details within hours of the incident. The Arbitrator found that the TDSB took too long to issue its initial decision, and that it was incorrect in deciding not to investigate the complaint. They further considered that the duration of the investigation was unreasonable. According to the Arbitrator, the employer’s duty to investigate promptly was more than a procedural component; rather, it was part and parcel of the substantive rights and protections of the Code. As a result, the Arbitrator awarded the complainant $3,500 in general damages for injury to dignity, feelings, and self-respect.
Lessons to take from this decision
This decision is a reminder for employers to adequately respond to complaints, to conduct a proper initial assessment, and to recognize the importance of the right to be free from discrimination and harassment in the workplace. Further, it recognizes that timeliness is part of conducting a reasonable investigation and that an internal backlog is not a defensible excuse at a hearing – at least on these facts.
Finally, although the decision does not extensively explain the reasons for the delay in the investigation, the Arbitrator found it unreasonable that it took 14 months for its completion.
Several tips can help avoid such a pitfall. Setting from the get-go, a timeline for every step of the investigation, with a system of reminders to flag any potential delays, can make for a good start. Down the road, a continuous re-assessment and re-adjustment of that timeline can become handy. Finally, keeping the parties appraised of the reasons for a delay (it happens) can go a long way.
1 2021 CanLII 101010 (ON LA).
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