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Think you’re off the hook to investigate? Not so fast

While you’re here, you may wish to attend one of our upcoming training courses:

Basic Workplace Investigation Techniques
17 Sep - 19 Sep at Courtyard by Marriott Calgary Airport
If a complaint of workplace harassment is made, do you know how to respond, investigate, and report on it — legally and correctly? If you don’t, you aren’t alone. This 3-day course is a crucial primer for today’s climate. Investigate mock complaints (inspired by our work across the country) from start to finish, build your investigation skills, and learn how to avoid costly pitfalls. The third day focuses on mastering report writing.
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As investigators we know that an employer’s duty to investigate – while necessary to ensure a healthy and safe working environment – can also be cumbersome, expensive, and a significant strain on an organization’s resources. When an employee leaves the workplace and then files a complaint of harassment or discrimination, employers can be quick to try and avoid the investigation on the basis that an employment relationship no longer exists. Two recent cases – one from the Ontario Grievance Settlement Board and one from the Canadian Human Rights Tribunal – suggest that employers need to slow down and consider some factors before dismissing a former employee’s complaints.

The first case, Ontario Public Service Employees Union (Ataw) v Ontario (Community Safety and Correctional Services),[1] involved an unjust termination grievance. The grievor was a correctional officer. He was discharged for various events that occurred on a single day, including engaging in sexually inappropriate behaviours with the inmates. The grievor was provided with a letter advising him of the allegations against him which had led to his termination. Two days later, the grievor sent the employer an email setting out allegations of harassment and discrimination that had occurred while he was in the workplace. The employer did not conduct an investigation, arguing that his complaint was vexatious given its proximity to the letter notifying him of the allegations against him.

The arbitrator agreed with the grievor that in failing to conduct an investigation into his concerns, the employer had breached its obligations under the Occupational Health and Safety Act (“OHSA”). The arbitrator acknowledged that while it may seem “absurd” to investigate a complaint by someone who has left the workplace, there could nonetheless be allegations advanced that should be looked into by the employer in order to ensure a healthy and safe work environment. The arbitrator stated that the OHSA requires an investigation that is “appropriate in the circumstances” and that in this situation, where the complainant was no longer in the workplace and where his allegations were unrelated to the reason for his departure, the investigation could be “less extensive” than otherwise required, but that it was nonetheless still required.

The second case, Duverger v. 2553-4330 Québec Inc. (Aéropro),[2] involved an ex-employee who received several inflammatory emails from his former supervisor. The ex-employee brought a complaint to the Canadian Human Rights Commission against his former employer, alleging that these emails were harassment under section 14(1)(c) of the Canadian Human Rights Act. Section 14(1)(c) states that “it is a discriminatory practice in matters related to employment to harass an individual on a prohibited ground of discrimination.” In order to determine whether there had been a breach of this section, the Tribunal considered whether there was a sufficient nexus between the harassment allegations and the employment context given that the complainant was a former employee at the time he received the emails from the supervisor. The Tribunal found several factors that supported a sufficient nexus, including the fact that the former supervisor used an email address associated with the organization when communicating with the complainant; the former supervisor and the complainant had both been employed by the same organization at one time; and the emails directly referenced an incident that had occurred while the complainant was employed by the organization.

The Tribunal found that a human resources manager at the organization was forwarded the harassing emails by the complainant but failed to intervene. When another company representative became aware of the emails, he asked the respondent to stop communication with the complainant but did not take any other measures to mitigate or avoid the effects of the emails. As such, the Tribunal found that the respondent organization did not act diligently enough in responding to the emails and was therefore liable for the acts of the supervisor.

Key Takeaways for Employers:

Even if it seems like an investigation is not necessary because the complainant is no longer in the workplace, conducting an investigation is still the safest bet for employers hoping to avoid liability down the line.

This is especially true where the conduct complained about happened while the complainant was an employee. If you are a federally-regulated organization, this will soon no longer be a best practice, but a requirement. Once Bill C-65 (An Act to amend the Canada Labour Code) comes into effect, employers will become required to investigate concerns from former employees that become known to the employer within three months after the day on which the former employee ceased to be an employee. The Bill states that the three-month time period may be extended on the application of the former employee and under prescribed circumstances. Draft regulations under the Bill suggest that “prescribed circumstances” may include where a former employee is able to demonstrate that they were unable to meet the three month time period because they “incurred trauma as a result of the occurrence or because of a health condition.”

Where the conduct complained of happened after the employment relationship has ended, as in the Duverger case, consideration should be given to whether there are factors that connect the conduct complained of to the workplace and that would require an investigation.

As demonstrated by these decisions and new federal legislation, the duty to investigate can be quite broad. Employers can take comfort in the fact that there is not a one-size fits all model for investigations, and that investigations can and should be tailored to what is “appropriate in the circumstances.”

[1] 2019 CanLII 65164 (ON GSB).

[2] 2019 CHRT 18 (CanLII).