Authors: Katharine Montpetit

Special note to BC readers:

If this subject is of interest to you, you may wish to attend our related workshop. Some spots are still open for the following sessions – we recommend registering soon. We hope to see you there.

Conducting Sexual Harassment and Violence Investigations
November 27-28, 2018 in Vancouver, BC
This advanced-level training is a must for any staff who may respond to and/or investigate sexual harassment or sexual assault complaints.

Workplace Investigations in the University and College Context
November 29, 2018 in Vancouver, BC
This training examines the demands and challenges that investigations present in the university and college context, and allows for a deep dive into possible solutions. 

Most workplace investigation decisions focus on the psychological harm to complainants suffered as a result of the alleged misconduct. We have written about this issue before – see our discussion of the importance of a trauma-informed approach for victims of sexual assault here. Some recent decisions have focused on the impact of being the respondent to an investigation. These decisions provide helpful reminders that a respondent, no matter how egregious the allegations against him or her, needs to be afforded a fair investigation process and that allegations are allegations only until such time as they are substantiated. As will be shown in the cases set out below, considerations of fairness to a respondent apply before, during, and after the investigation is complete. Indeed, failure to treat a respondent fairly throughout the process may result in devastating consequences for the respondent and significant liability for an employer. What follows are two examples of where employers got it right and two where they missed the mark.

Before the Investigation

A recent arbitration decision, Ontario Provincial Police Association v. Ontario Provincial Police,[1] addresses the serious consequences that initiating a misguided investigation can have on a respondent and a respondent’s co-workers. The respondent was a police officer with a history of significant mental health issues, including suicidal thoughts and previous attempts at suicide. She had gone on an extended leave in 2012 and returned to work at the end of 2014. The documentary evidence before the arbitrator showed that the OPP knew about her history and knew that she was continuing to have mental health issues since returning to work. An incident occurred on March 21, 2015 that resulted in another officer filing an internal complaint against the respondent. The Professional Standards Bureau (“PSB”) initiated an investigation into the respondent’s conduct during the incident. When the respondent was provided with notice of the investigation by her employer, she started to cry and when asked if she was okay, she replied, “Not really.” She was told “Not to worry,” that she did not need a lawyer, and that it was only an internal investigation. The respondent was interviewed in connection with the investigation on July 22, 2015. The interview did not go well and she missed work a few days later. On August 2, 2015, she attempted suicide in the office. She survived the suicide attempt. Four of her co-workers subsequently filed grievances, alleging that the OPP had failed to properly reintegrate the respondent to the workplace and in doing so, failed to ensure their health and safety. The arbitrator awarded damages to the co-workers totaling $10,000. In reaching this decision, the arbitrator found that in light of the respondent’s serious mental health issues, the OPP should have investigated whether the respondent’s mental illness had played a role in the incident of March 21, 2015, rather than investigating the incident as one of misconduct.

During the Investigation

Vancouver Coastal Health Authority v. Health Sciences Association[2] addresses the appropriateness of interim measures during an investigation. The respondent’s union grieved that the employer violated the collective agreement by suspending the respondent without pay pending a criminal investigation. The employer had been notified that the RCMP was conducting an investigation into the respondent, an X-ray technologist, regarding the alleged sexual assault of a patient. The respondent declined to participate in an internal investigation at that time. Upon notice of the criminal investigation, the employer removed the respondent from his patient duties and he was assigned to non-patient care duties at an alternative facility. The respondent incurred no loss of pay or benefits, however his duties essentially amounted to “make-work” projects that were not productive to the workplace. The decision states that the employer was “meticulous in keeping confidential any details pertaining to the grievor’s situation.”

Over a year later, the RCMP informed the employer that it would be laying charges of sexual assault against the respondent. At this time, the employer made the decision to suspend the respondent without pay pending the outcome of the criminal investigation. The arbitrator concluded that the employer’s decision to suspend the respondent without pay was appropriate. The seriousness of the charges and the risk to the employer’s own reputation by keeping him employed weighed in favour of his suspension without pay. In his reasons, the arbitrator emphasized that the employer had gone “the extra mile in honouring the grievor’s dignity” by maintaining his employment for eighteen months prior to notice that charges had been laid.

Another decision where it was decided that the employer “got it right” in terms of interim measures for a respondent is Dr. Agostino Pierro v. The Hospital for Sick Children.[3] We have previously written about the key takeaways from this case here, but it bears repeating some of its lessons for accommodating respondents during an investigation. Dr. Pierro was the Head of the Division of General and Thoracic Surgery at the Hospital for Sick Children. The Hospital initiated an investigation into his conduct, which included serious allegations including throwing objects and screaming and yelling at employees. The Hospital advised Dr. Pierro that he would be suspended from his administrative and leadership duties during the course of the investigation. The Hospital informed him that he would still receive his full pay, and would continue with his clinical, research and teaching roles, including seeing patients. His office would be moved to a separate part of the unit. The Hospital further advised that they expected the investigation would take between three to four months.

Dr. Pierro disputed the allegations against him and argued that the suspension would irreparably damage his reputation in the medical community. His legal counsel brought an injunction to prevent the Hospital from implementing the suspension. His injunction failed. The court found that even though it was not set out in Dr. Pierro’s contract, the Hospital had the residual power to suspend Dr. Pierro due to the allegations of misconduct. The court looked to previous case law to determine that the Hospital had met all four factors for a valid administrative suspension: 1) the action was taken in order to protect the Hospital’s legitimate business interests; 2) the Hospital acted in good faith in imposing the suspension; 3) the temporary interruption was for a relatively short period; and 4) the suspension was with pay. With respect to the doctor’s concern that his reputation would be harmed, the court concluded that the harm would be as a result of the allegations, and not the investigation and that if anything, a neutral, external investigation would assist in vindicating the respondent if there was no substance to the allegations.

After the Investigation

Lastly, in the arbitration decision of University of British Columbia v. University of British Columbia Faculty Association (also known as the “Steven Galloway Arbitration”),[4] the arbitrator awarded Mr. Galloway $167,000 in damages for certain communications made by the University after the investigation was completed that “contravened [Mr. Galloway]’s privacy rights and caused harm to his reputation.” Mr. Galloway had been a respondent in an investigation undertaken by UBC into allegations of sexual assault.

Mr. Galloway was terminated from his position as Chair of UBC’s creative writing program after the investigation. At the time of his termination, UBC communicated to the media that Mr. Galloway had been terminated based on “a record of misconduct that resulted in an irreparable breach of trust placed in faculty members by the university, its students and the general public.” Soon after, the president of the UBC faculty association stated that only one allegation against Mr. Galloway had been substantiated by the investigation and that UBC’s communications regarding Mr. Galloway’s termination were therefore misleading. While the documentary materials that were before the arbitrator remain confidential, in an interview given to The Globe and Mail after the release of the arbitrator’s award, Mr. Galloway expressed that his life has been “destroyed” by the ordeal, and that he still thinks of killing himself on a daily basis.[5] It is clear that the arbitrator was moved by the effect the communication had on Mr. Galloway, as the arbitrator’s award far exceeded the typical range of awards for breach of privacy and reputational harm.[6]

Takeaways

These four cases, although very different in terms of their facts, offer some important lessons with respect to treating a respondent fairly before, during, and after an investigation. My colleague Veronica Howard has previously set out the basic entitlements that are owed to respondents here. The cases discussed above add another perspective to these considerations. Here are some key takeaways for employers:

  • Prior to initiating an investigation, consider whether there are other extenuating circumstances that could be contributing to the alleged behaviour of the respondent and whether these need to be accommodated. My colleague William Goldbloom talks more about accommodating respondents with mental illness here.

 

  • Consider how the respondent will be provided with notice of the complaint. This is not an easy conversation to have and care needs to be given to striking the right balance between alleviating a respondent’s upset at the investigation without downplaying the seriousness of an investigation. Be honest, while also considering that the impact of finding out you are the subject of an investigation can be devastating regardless of whether the allegations are true or not.

 

  • Throughout the course of the investigation, consider “check-up’s” on the respondent’s well-being and ensure that the respondent is made aware of potential supports (whether it be their right to legal counsel, EAP, etc.). Be meticulous in keeping the investigation confidential.

 

  • When considering interim measures for a respondent, be mindful of competing interests, including public safety, the health and safety of others in the workplace, and your reputation as an employer. Think back to the four factors in Pierro and think carefully and creatively about scenarios in which both parties will be as minimally impacted by the investigation as possible.

 

  • Once the investigation is complete, consider how (and if) you will communicate the outcome of the investigation to any outside stakeholders.

 

[1] The Ontario Provincial Police Association v. The Ontario Provincial Police, 2018 CanLII 82193 (ON LA).

[2] Vancouver Coastal Health Authority v. Health Sciences Association, 2018 CanLII 50185 (BC LA).

[3] Dr. Agostino Pierro v. The Hospital for Sick Children, 2016 ONSC 2987.

[4] University of British Columbia v. University of British Columbia Faculty Association, Summary Award dated June 8, 2018: https://www.facultyassociation.ubc.ca/assets/media/UBC-UBCFA_DamagesAward.pdf.

[5] https://www.theglobeandmail.com/arts/books/article-steven-galloway-says-his-life-is-destroyed-after-ubc-payout/.

[6] UBC Faculty Association Statement: https://www.facultyassociation.ubc.ca/association-statement-arbitration/.