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New Brunswick arbitrator concludes workplace investigation deeply flawed

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Across the country, legal decision-makers are increasingly reviewing employers’ workplace investigation efforts and finding them flawed. Consistent with this trend is a case from New Brunswick, Cyndi Cross v. Irving Pulp & Paper Limited, 2012 CanLII 85143 (NBLA) in which Arbitrator George Filliter reviewed the employer’s workplace investigation, and found it deeply flawed. Cyndi Cross, an employee, was originally a complainant in a harassment complaint against a co-worker, Ray Sheehan.

The case began when Ms. Cross (“Cross”) went to the HR Manager’s office and accused her co-worker, Sheehan, of “slamming the door of the refrigerator into her face”. The Manager (“Milne”) and Cross reviewed the employer’s harassment policy and concluded that the incident as relayed fell within the intent of the policy.

The HR Manager met with Cross, her supervisor, and her union representative. The investigation began with Milne asking Cross questions and writing down her answers, after which he gave Cross the notes to review for her comments. After interviewing Cross, Milne met with Sheehan, along with Sheehan’s union representative, and took notes of that interview. Milne then re-interviewed Cross, in the presence of her union representative, and also took notes of that second interview. The next day, Milne interviewed Becky Van der Sluys, another employee, who was mentioned by Sheehan during his interview the previous day, although Ms. Van der Sluys was not present for the “refrigerator door” incident.

After all of the interviews were completed, the HR Manager determined that the complaint made by Cross was unsubstantiated and that Cross had acted in an intimidating and aggressive manner towards Sheehan. A letter was prepared advising Cross that she was being suspended without pay for 3 days because the employer considered the unsubstantiated complaint and her verbal and physical aggressiveness toward her co-worker unacceptable and deserving of this level of discipline. In response to the discipline, Ms. Cross filed a grievance.

The discipline hearing was an unusual one in that neither the grievor, Cross, nor the respondent in the original investigation, Sheehan, attended to give evidence. Instead, the Arbitrator had to rely only on the written notes taken by the HR Manager during the investigation interviews. Cross maintained that the investigation was flawed and that the employer had drawn conclusions about the truthfulness of her statements that were inaccurate. The employer responded stating it was not necessary for an investigation to be conducted strictly in accordance with principles of natural justice and procedural fairness.

Arbitrator Filliter dealt head-on with the employer’s investigation process finding it flawed. He concluded that it was not impartial, objective, or appropriate.

The Arbitrator’s list of the investigation’s failings include:

  • Cross never received a copy of Sheehan’s statement and so was unable to respond to his comments in any meaningful way;
  • Cross was not asked to provide a list of witnesses to be interviewed;
  • Cross was not told about the interview with the co-worker, Van der Sluys, on the day following her complaint, she was not provided with a copy of the statement taken during the interview, and she was not given the opportunity to respond to the allegations arising from the interview; and
  • Cross was never given the results of the investigation and afforded the opportunity to respond.

Filliter found that the flawed investigation called into question its neutrality, fairness, and impartiality. If he had been asked to make findings on the conduct of the investigation, he would have determined that the investigatory process did not fulfill the laws of natural justice or procedural fairness. As Filliter stated in his decision, such glaring deficiencies in an investigative process that is created by employer policy, such as in this case with the employer’s harassment policy, diminishes the integrity of the policy and it sends the wrong message to employees. Where the intent of every harassment policy is to create a mechanism for investigating employee complaints, employees must feel that their complaints are being dealt with confidentially, impartially, and appropriately otherwise the intended positive effect of the policy is minimized.

Notwithstanding the deficiencies of the workplace investigation, Arbitrator Filliter upheld discipline. He was able to do so based on the information before him. The Arbitrator found that the events occurred and that both Cross and Sheehan had agreed: a chair was hit by the refrigerator door being opened and the refrigerator door was pushed into Cross’ face. The Arbitrator struggled with whether there was malice on Cross’ part in initially opening the door and striking the chair in which Mr. Sheehan was seated. In the end Arbitrator Filliter concluded because Cross failed to attend the hearing and testify on her own behalf, and that she made an allegation against a co-worker without disclosing the whole story, as a result, an unwarranted investigation commenced which deserved discipline. The Arbitrator reduced the 3-day suspension to a 1-day suspension without pay.

Could an investigation conducted without the flaws identified by the Arbitrator have resulted in a different outcome? What is more likely is that a properly conducted investigation would have explored different versions of the story, with or without witness statements, to get to the heart of what really happened. More significantly, a properly conducted investigation demonstrates organizational fairness in internal processes like filing complaints, such that the process gets the back story to the underlying acrimonious working relationship between the parties and addresses those underlying issues with proper discipline practices or recommendations for resolution as determined on a case-by-case basis.

Finally, as we know from other decisions, an improper investigation may mean that an employer’s disciplinary actions towards an employee will not be upheld. Arbitrator Filliter’s approach may not always be the one followed, and cases are always distinguished on their facts. Proceeding on the basis of a flawed investigation is always legally risky.

Kenda Murphy