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What makes an investigation “reasonable”?

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While large organizations often have robust policies, human resources departments and, at times, human rights and/or investigation specialists to help them ensure that they are meeting the expectations of the Ontario Human Rights Code, it can be more challenging for smaller, less legally sophisticated organizations to ensure that they too are meeting expectations when faced with a complaint from one of their employees. A recent decision of the Human Rights Tribunal of Ontario provided some insight on how the latter such organizations’ efforts will be assessed when it comes to conducting workplace investigations.

In Faghihi v. Black Swan Pub and Grill, 2016 HRTO 1109, the applicant, a sous chef at the respondent pub, alleged discrimination because of race, colour and ethnic origin. Specifically, he alleged that a co-worker made a discriminatory comment towards him (“go back to your own country you fucking paki”), which he reported to the owner of the pub. Mr. Faghihi said that the owner did not conduct an investigation into his complaint, and instead terminated his employment two shifts later. The Vice-Chair concluded that the comment was made but that it did not create a poisoned work environment for Mr. Faghihi, nor did it create liability for the corporate respondent.

In turning her attention to the investigation conducted by the pub’s owner, the Vice-Chair noted that the pub could be held liable for the way in which it responded to Mr. Faghihi’s complaint and asked, “Did the respondent conduct a reasonable investigation?” She wrote (in what should be comfort to those tasked with conducting internal investigations):

The rationale underlying the duty to investigate a complaint of discrimination is to ensure that the rights under the Code are meaningful…The Tribunal’s jurisprudence has established that the employer’s duty to investigate is held to a standard of reasonableness, not correctness or perfection. An employer need not satisfy each element in every case in order to be judged to have acted reasonably. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably…The Tribunal has held that the relative sophistication of the respondent should be considered in assessing whether it acted reasonably in the circumstances (emphasis mine).

After noting that the pub in this case was not a sophisticated respondent, the Vice-Chair commented on several aspects of the owner’s response. First, she noted that the pub did not have a discrimination and harassment policy or a formal complaint process. Still, after hearing Mr. Faghihi’s complaint, the owner separated the two individuals involved and spoke to the co-worker, who admitted telling Mr. Faghihi to go back to his country, but denied that he called him a “fucking paki”. The owner then told Mr. Faghihi what the co-worker acknowledged saying, and that in her opinion such comment was not discriminatory and was made in anger. The Vice-Chair noted, “While it would have been preferable for Ms. Leonard to take notes of her investigation, this by itself does not result in the investigation being unreasonable.” Similarly, the Vice-Chair noted that the lack of policy also does not by itself establish a failure to investigate, although she added, “In this situation it was unclear to the parties about the process to be followed when the applicant raised human rights concerns about a co-worker.”

Where the Vice Chair appeared to have significant concerns, however, was in the neutrality of the response by the owner of the pub, which she felt undermined the reasonableness of the investigation. She summarized her concerns as follows:

Ms. Leonard testified that she never had any issues with M.C. and described him as “loveable”, “wonderful” and “liked by everyone”…She readily accepted that M.C. made the country comment, but conducted no analysis and formed no conclusion about the racial slur, despite an allegation that it was made. In reviewing Ms. Leonard’s evidence as a whole, I find that Ms. Leonard did not want to probe too much, or conclude that M.C. made a racial slur. Even with the comment that she admitted that M.C. made (the country of origin comment), Ms. Leonard would not agree or acknowledge, during the hearing, that his comment was discriminatory. Her approach was essentially one sided, without thoroughly or fully examining what the applicant told her about M.C., his behaviour, and his comments.

The Vice-Chair noted that it was unclear if the co-worker faced any discipline for his comment, and also that the owner did not communicate the results of her investigation to Mr. Faghihi, adding, “The lack of clarity about who was to communicate the results of the investigation is also a factor in my finding that the investigation was not reasonable.”

Later in her decision, the Vice-Chair concluded that Mr. Faghihi employment was terminated, at least in part, due to his complaint and, as such, was reprised against by the respondent. Ultimately, Mr. Faghihi received $18,000 as monetary compensation for injury to dignity, feelings and self-respect, as well as lost wages and post-judgment interest. In addition, public interest remedies were ordered as follows:

  • Within 90 days from the date of this Decision, the respondent shall develop a harassment and discrimination policy, which includes a complaints mechanism;
  • Within 90 days from the date of this Decision, the respondent shall post Code cards in locations within the respondent that are visible to employees; and,
  • Within 90 days from the date of this Decision, the respondent shall require its management, including the kitchen manager and the owner(s), to take the Commission’s e-learning course Human Rights 101.

This decision is helpful, in that it shows that while smaller, “unsophisticated” organizations will be given some understanding when their investigation efforts are being assessed, there are certain expectations, particularly around neutrality and fairness, which will always be necessary for an investigation to be considered reasonable. In addition, and this is a lesson for employers large and small, this decision highlights the challenges that can result when individuals tasked with conducting investigations are, due to their role, too close to the matter and as a result are not neutral in their evidence gathering and analysis.

This decision might also provide helpful insight into what might be considered an investigation that is “appropriate in the circumstances” under the Bill 132 amendments to the Occupational Health and Safety Act. The Code of Practice issued by the Ministry of Labour provides some guidance on what is “appropriate” and at the top of the list is the expectation that the person conducting the investigation be able to be objective. In addition, the investigator is expected to, among other things, take notes of their interviews, document their conclusions, and share the results of the investigation, as well as any corrective actions, with the parties to the complaint, in writing. What the decision in Faghihi v. Black Swan Pub and Grill suggests is that the absence of these steps won’t be seen as reasonable or appropriate, even in the circumstances of a small, unsophisticated employer investigating a single workplace comment.

Cory Boyd

About the Author: Toronto Employment Lawyer Cory Boyd has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.