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Recently in BC: It takes a lot of Moxie to make a finding against someone without their evidence

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The recent decision of Chen v. Moxie’s Restaurants Management Inc. from small claims court in British Columbia highlights some of the fundamental requirements for a workplace investigation and the consequences of an inadequate investigation.

Mr. Chen was an employee of Moxie’s Restaurants for approximately four months until he was dismissed when one of the female bar servers alleged that he had “touched her butt”. The manager of the location undertook the investigation. The evidence was that:

The server told the manager that she was standing in the passageway behind the bar and waiting to pick up her drink order.  She said that Mr. Chen walked behind her and touched her buttocks.  She said that she immediately swung around and said to him, ’You touched my butt’. Mr. Chen did not say anything and did not apologize according to her. Mr. Chen disagreed and said that he did apologize.

Mr. Chen’s first opportunity to provide evidence regarding the incident occurred at the trial, where he said that the incident occurred as follows:

He was walking along the passageway behind the bar while carrying an empty rubber serving tray.  He was holding the serving tray in his right hand and the tray was positioned downwards, parallel to his leg.  When he walked by and behind the server, the side of the tray accidentally bumped her buttocks.  He said that he never touched her with his hand nor did he intentionally touch her with the serving tray.

The manager at Moxie’s explained that Mr. Chen had worked at Moxie’s for only four months whereas the server had worked there for three years and had not made any prior complaints. As a result, the manager “chose to completely believe the server” and did not interview Mr. Chen as part of the investigation. In fact, it was noted that Mr. Chen’s first opportunity to provide his evidence was at the small claims court trial.

According to the manager, after obtaining the server’s information, Mr. Chen was dismissed from his employment at Moxie’s because the alleged conduct would constitute a violation of Moxie’s Company Policy Violations.

The manager’s conduct of the investigation is troubling in two ways. First, the manager’s investigation was neither unbiased nor neutral. The manager chose to accept the information of the server based on the server’s long-standing employment with Moxie’s and the absence of her having made any prior complaints. Objectively, this is problematic because it makes assumptions about the server’s credibility. This is not to say that the server was not credible, but the manager’s knowledge of the server and the absence of prior complaints do not automatically make her credible or her information correct. Further, accepting the information of a complainant based solely on one’s prior knowledge or relationship with that person may well give rise to an allegation of bias.

Second, denying Mr. Chen the opportunity to provide his evidence regarding the alleged incident may be seen to be denying Mr. Chen fairness and a thorough process. In that regard, the judge in this case said that:

At first blush, one would think that in fairness, a manager should be obliged to meet with the employee to give him or her a chance to explain their version of the events and that it would be unfair for a manager to fire the employee without first giving them a fair opportunity to meet the allegations and give their side of the story.

It is interesting to note that there is some conflicting case law on this point. Some cases appear to suggest that it is not necessary to provide the respondent with an opportunity to respond to allegations if it can ultimately be shown that they did engage in serious misconduct. The judge noted that an employer who does not conduct an investigation risks that a Court may find that the dismissal of the employee was without just case. Accordingly, the judge found that Mr. Chen’s dismissal was without just cause.

The judge’s finding in this case highlights the most significant outcome of an unfair, biased or cursory investigation by an employer: a finding that the employer dismissed the employee without just cause. This finding can be costly. Mr. Chen was awarded pay in lieu of notice (to be agreed upon by the parties) and his costs of the action.

Andrea Lowes

About the Author: Toronto Employment Lawyer Andrea Lowes conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Andrea also assists her clients by providing workplace investigation and human rights training to staff at all levels. Andrea’s practice also includes workplace assessments and reviews.