In our workplace investigation training sessions, we often talk about the four pillars of the investigation process: fairness, thoroughness, timeliness, and confidentiality. The recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”), Young v. O-I Canada Corp., is an example of an investigation under scrutiny due to its lack of thoroughness.¹

Facts

The Applicant filed an application under s. 34 of the Ontario Human Rights Code², alleging discrimination in the area of employment and on the basis of sex, including sexual harassment.

Initial Complaint

During a work shift, the Applicant and LC, a co-worker with whom he had a romantic relationship, got into an altercation that included shouting profanity, and a door slamming into the back of the Applicant. The Respondent employer investigated the incident, and the Applicant was immediately sent home, receiving a five-day suspension. LC was not immediately sent home, but she was eventually suspended for two days. The Applicant alleged that the Respondent’s investigation exhibited anti-male bias, due in part to the failure of the internal investigator to re-open their investigation in order to interview all of the available witnesses.

Allegations of Harassment

Following the initial incident, the Applicant advised the internal investigator of harassment he claimed to be experiencing from LC and ME (who had been in a relationship with LC, before the Applicant). The behaviour he experienced included LC and ME blocking him from using the punch clock at the beginning of a shift. The Respondent told him that they would look into the alleged harassment.

Three months after the initial incident, the Applicant received a sexually explicit and threatening text message, which he alleged came from ME. The Applicant reported the text to the union president and human resources, but nothing was done to address it. On the same date, the Applicant was informed that LC filed a formal corporate complaint against him, and he was advised that he would be investigated by another investigator (“corporate investigator”) assigned by the corporate office.

The Applicant also alleged that during an interview with the corporate investigator, the investigator told him that he needed to show up at work “like a man” and to stop “bringing this high school stuff into the workplace.”

Role of the Investigator

The internal investigator was candid in her view of the investigation, acknowledging the following:

• she sent the Applicant home and not LC because she did not know that the Respondent’s past practice had been to send both employees involved in a conflict home;
• that not including the Applicant’s allegation that LC had hit the Applicant with a door in her report was an error;
• the investigation into the incident was closed and not re-opened (despite new evidence made available) because she expected the union to file a grievance on the Applicant’s behalf to address the dispute; and
• she did not issue a report regarding the text message and did not ask the Applicant to put his complaint in writing because she believed it was unnecessary as she had a copy of the text message.

Findings

The tribunal found that there was insufficient evidence to support a finding that the Applicant was treated negatively during the investigations because he was a man due to reasons that included:

• There was no evidence that the internal investigator was asked to re-open the investigation or that the respondent had ever re-opened an investigation in circumstances where new evidence came to light.
• The internal investigator was expecting the union to bring witnesses forward based on her understanding that she could not compel employees to participate in investigations or punish those who refused to.
• While the investigation was closed, the matter in general remained open because the union had filed a grievance on the Applicant’s behalf and the matter would be addressed in that process.
• There was ample evidence that the internal investigator was not particularly good at conducting investigations, and this was a factor in the decisions she made—not discrimination.
• There was no evidence that the Respondent took a cavalier approach to the Applicant’s safety because, although the author of the text message was not determined, the Respondent still warned ME not to engage in such behaviour.
• The Respondent did not meet its Code obligations regarding the investigation of the disturbing text message the Applicant received, not because the internal investigator did not take the matter seriously, but because the result of the investigation was not conveyed to the Applicant.
• The corporate investigator spoke in the way that they did to the Applicant in the context of directing the Applicant to comply with his direction to leave the investigation to him. While expressed crudely, the corporate investigator’s point was directed at the expectation of the Applicant to behave in a professional and mature manner at work, not that it was somehow “unmanly” for him to raise issues.

Ultimately, the fact that the investigatory process was flawed was not a result of discrimination; the respondent’s failure to report the outcome of the investigation was a breach of its obligation to maintain a workplace free of harassment and discrimination.

Lessons for Workplace Investigators

Workplace investigators should remember:

• In addition to including all relevant evidence in your investigation, assess all new evidence — regardless of the stage of the investigation when it is discovered.
• Refrain from saying anything that may come across as antagonizing to the parties involved. When in doubt, remain “warmly neutral.”
• Write and keep notes of everything.
• Rather than expecting a matter to be dealt with by another process, be proactive and manage every complaint in the same way, following your procedures and remembering the four pillars of workplace investigations.

¹Young v. O-I Canada Corp., 2020 HRTO 879.
²Human Rights Code, R.S.O. 1990, c. H.19

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