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The other week, my partner Chris Thomlinson and I conducted our first workplace investigation training session in Regina, Saskatchewan. We were with a great group of people.
To prepare, Chris and I reviewed a number of interesting workplace investigation cases that have been decided in Saskatchewan, but have principles applicable for workplaces and investigators across the country.
Here are three that we found particularly interesting:
Saskatoon v CUPE No. 47, 2011, CanLII 51974 (SK LA) In this case, the employee was suspended for three days following an investigation into a complaint made against him by a co-worker who alleged harassment. The City of Saskatoon had retained a consultant as a third party investigator who had tendered a report stating that the investigation of the complaint had exposed abusive and destructive behaviour. Based on these findings, the City suspended the employee. The employee grieved and the case made its way to arbitration. The issue to be determined was whether the employee’s conduct was deserving of discipline.
The arbitrator refused to rely on the investigator’s report and concluded that the employee’s conduct was not harassment. The arbitrator noted that notwithstanding the investigation and the report, the employer was still required to provide the facts giving rise to the discipline imposed. In addition, the arbitrator expressed concern that the investigator expanded the investigation to include findings of wrongdoing against other employees who not only did not make a complaint but who were not even called as witnesses in the hearing.
This case is a great reminder that an investigation report is hearsay, which we discussed at great length during the training. It is, as the arbitrator stated here, “nothing more than an explanation as to why the employer levied discipline”. If an employer intends to defend its actions in a subsequent legal proceeding, it needs to do so anew, and it should be satisfied that the witnesses and the evidence identified through the investigation process will hold up. In addition, while a solid investigation process and report may be persuasive to a legal decision maker, a poor one may end reflecting badly on an employer and make it more difficult for it to defend its position.
B.P.v Administrative and Supervisory Personnel Association, 2012 Can LII 9617 (SK LRB) In this case, an employee had claimed that her co-workers had discriminated against her and harassed her. The employer retained an independent investigator, who concluded that no harassment occurred. The employee then asked her union to grieve the decision to dismiss her complaint. The union declined to do so, which led the employee to allege that the union had not fairly represented her. The arbitrator concluded that the union was justified, and that the employer had conducted a fair investigation. The union’s decision was not perfunctory or cursory.
This case is a reminder that unions often have a stake in the outcome of workplace investigations as they must consider whether to grieve the findings. What this case shows is that if the investigations themselves are solid, and the union has behaved in a thoughtful manner, they may be able to successfully defend allegations of unfair representation.
Finally, the recent punitive damage case, Branco v American Home Insurance 2013 (Can LII) SKQB 98 comes from Saskatchewan. While the case involves an insurer, and the failure to pay disability benefits, it may very well have application to workplace investigation cases. Here, the court concluded that the insurer had a duty of good faith to deal with the insured’s claim fairly and that this applied to the manner in which the insurer investigated and assessed the claim. This duty had not been discharged, and the plaintiff was awarded 4.5 million dollars in punitive damages.
And the porridge on toast reference? Well, I admit that it really has nothing to do with workplace investigations, but it was a very interesting thing we learned on our last day of training. Chances are that if you live in Saskatchewan, you might have started your day with this as your breakfast. What a great piece of national trivia. We could not resist sharing.