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November 25, 2021, marks International Day for the Elimination of Violence Against Women. As workplace investigators, we know all too well that gender-based violence and harassment is a live issue, the impacts of which can be devastating on the survivor, their loved ones, and the workplace more broadly.
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”).
In a decision earlier this year, considered a win for gender-diverse people, the Quebec Superior Court recognized the harms associated with the misidentification of non-binary and trans people on various forms of government issued identity documents (IDs).
Many of us are familiar with the expressions “shop talk” or “workplace banter” in reference to conversations that are presumed to occur in certain predominantly male workplaces, such as a construction site or an industrial worksite, but not in others.
At the outset of an investigation, investigators need to consider how they will collect the verbal evidence from their interviewees. One of the best ways to ensure the accuracy of the evidence collected is to use a recording device.
The nature of discrimination is such that it is often based on an individual’s “gut feeling” about an experience or interaction, rather than anything that is overtly said or done. The courts have recognized time and again that discrimination is often subtle and not overt.
How many of you can relate to that feeling of relief and maybe even joy when you are “oh so close” to completing a task. As a workplace investigator, I can definitely relate. In my experience, it is a great feeling knowing that I am close to placing a checkmark beside an investigation and moving that investigation file to the “closed” section of my files.
In a recent Provincial Court of Alberta decision, Dupont v. Ag Growth International Inc. (AGI-Westeel), 2021 ABPC 118, the trial judge ruled that just cause termination was a disproportionate measure following a workplace investigation where the dismissed employee was found to have sexually harassed a female colleague. The employer subsequently appealed this decision to the Alberta Court of Queen’s Bench, who allowed the appeal.
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