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Unfair investigation? No comment.

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We are now in a world where workplace harassment is taken much more seriously than it was before. Although some jurisdictions in Canada do not have an explicit legal obligation to investigate incidents of this nature, there is now a pressing moral obligation to do so. But when such a moral obligation is unmoored from legal principles or government-issued guidelines, there is a greater risk of unfairness to all parties. An investigation in this context is more likely to be guided by an emotional drive to either undermine those who raise complaints or persecute those who are alleged to have behaved badly, rather than arriving at factual findings from a neutral perspective using a fair investigation process.

Take the example of a recent case in Saskatchewan (Sasktel v Unifor, Local 2S, 2019) – a jurisdiction that does not have an explicit legal obligation to investigate workplace harassment in its occupational health and safety legislation and no “code of practice” outlining what a fair and appropriate investigation into harassment looks like.

In this case, the employer became aware of concerns that an employee was being disrespectful towards staff members and customers. It decided to hire an outside consultant to conduct a “review of the workplace to identify and verify [the employee’s] behaviour and the impact it has on co-workers and customers.” This investigator concluded that the employee engaged in disrespectful behaviour towards staff and customers and violated the employer’s harassment policy. As a result of the investigator’s report, and similar incidents that happened a few years prior, she was terminated for cause. She had worked for this employer for over 24 years.

The employee grieved her termination. At arbitration, many of her colleagues gave credible evidence that she was disrespectful. The Arbitrator easily found that she engaged in workplace harassment and dismissed the grievance. However, the Arbitrator did not fully address the employee’s argument that, even if the employee acted inappropriately, the employer conducted their investigation unfairly.

Issue 1: The employee was not given a summary of the allegations being raised against her

In direct response to the employee’s complaint that she was not given a chance to respond to the allegation raised against her, the Arbitrator stated, “I did not review the report, but simply note that [the employee] may have been accorded an opportunity to give her side of the story [when interviewed by the investigator].” Here the Arbitrator is merely suggesting – not finding – that the employee was given a chance to provide a response in this investigation. Therefore, the Arbitrator was unable to evaluate the quality of the employee’s participation in the investigation. If the employee was not given specific allegations to respond to, which was required by her employer’s workplace harassment policy, then she did not have a reasonable opportunity to participate in the investigation into her misconduct.

It is also notable that the investigation was conducted without the employee’s knowledge. Until her interview with the investigator, she was unaware that any of her colleagues were being interviewed about her conduct.

Issue 2: The employee was not given the opportunity to have a union representative attend at her interview

The Arbitrator was silent regarding the lack of opportunity given to the employee to have a union representative present at her interview. A right to union representation in workplace investigations is normally codified in the applicable collective agreement or harassment policy, however no such provisions were put into evidence in this case. Nevertheless, union representation should have been offered during this investigation. The employee was permitted to have union representation at the non-disciplinary “fact-finding” meeting with her manager about the very incidents that were addressed in the investigation just four days before the investigation started. It would be difficult to argue that an employee would be allowed union representation at a fact-finding meeting with their manager, but not at a fact-finding meeting with an external investigator.

While this case demonstrates the need to conduct investigations into workplace harassment to address inappropriate behaviour, it misses the opportunity to highlight how to conduct these investigations fairly. The goal of eradicating harassment from the workplace will not be undermined by providing the person accused of such misconduct some basic measures of procedural fairness: giving them notice of the investigation, the specific allegations in the complaint and the option of union representation.

Without these measures, a harassment investigation could become an unfair and prejudicial process that undermines its ultimate goal: to create a psychologically safe work environment.

Sasktel v Unifor, Local 2S, 2019 CanLII 57057 (SK LA)