Workplace investigations are paramount in maintaining a fair and just work environment. Provincial and Federal legislation requires that employers must conduct thorough and impartial investigations into allegations of misconduct, harassment, and humanitarian accommodation requests. Furthermore, the sufficiency and disclosurability of investigation reports play a critical role in ensuring transparency and accountability within organizations. Understanding these legal principles not only safeguards employee rights but also mitigates potential liability for employers. This article will delve into the intricate dynamics of these duties, highlighting their implications for both employers and employees. Read on to learn more.
Topics Will be Covered in This Post:
Relevant Article You May Be Interested In:
Duty to Investigation and Protection Against Reprisal Under Ontario Employment Protection Legislation
Employees hired by provincially regulated businesses are protected by legislation from workplace harassment, discrimination, and reprisal.
Under s. 32.0.7(1) of the Occupational Health and Safety Act (OHSA), an employer must ensure that an investigation appropriate in the circumstances is conducted into incidents or complaints of workplace harassment. The process by which employers decide to terminate an employee’s employment is also relevant in determining whether just cause can be made out, and whether aggravated or punitive damages are warranted for the manner of termination.
An employee is terminated in reprisal when he or she is terminated shortly after he or she voiced a complaint to the management or after trying to enforce his or her employment law rights guaranteed under s. 50 of OHSA.
Pursuant to s. 50 (5) of OHSA, once an employee filed a s. 50 complaint, the employer has the burden of proof to establish that it did not act contrary to the provisions of OHSA.
Pursuant to Section 5 of the Human Rights Code, every person has a right to equal treatment with respect to employment without discrimination or harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Section 24(1)(b) of the Human Rights Code states that the right under section 5 to equal treatment with respect to employment is not infringed where, the discrimination is a reasonable and bona fide occupational requirement (BFOR).
Section 24(2) of the Human Rights Code states that no tribunal or court shall find that a BFOR exists unless it is satisfied that the person's circumstances cannot be accommodated without undue hardship.
Damages for Termination of Employee in Reprisal Against s. 50 of the OHSA
Learn More About Workplace Harassment and Workplace Discrimination
A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate
Age Discrimination vs. Bona Fide Occupational Requirement (BFOR)
Gender Equality – Is Society Giving Equal Rights To Women As Well
Damages for Termination of Employee in Reprisal Against s. 50 of the OHSA
The Unfair Practices Employees Face in San Diego and Ontario and What to Do
Duty to Investigation and Protection Against Reprisal Under Federal Employment Protection Legislation
Employees hired by federally regulated businesses are protected by legislation from workplace harassment, discrimination, and reprisal.
Pursuant to Section 3 and Section 7 of the Canadian Human Rights Act, every person has a right to equal treatment with respect to employment without discrimination or harassment because of race, family status or disability.
Pursuant to Part II of the Canada Labour Code, all employers are responsible to maintain a health and safe working environment.
The Canadian Human Rights Act mandated all employers to accommodate a workers’ disabilities who can still perform core and essential duty of the job to the point of undue hardship.
Duty to accommodate has both a substantive and a procedural component:
The procedural component requires that an employer to undertake an individualized investigation of potential accommodation measures to address the employee's code-based needs; and
The substantive component considers the reasonableness of the accommodation offered or the employer’s reasons for not providing accommodation (BFOR). It is the employer who bears the onus to demonstrate that the employee's disability has been accommodated to the point of undue hardship.
A reprisal is strictly prohibited under the Canada Labour Code, and no employee can be terminated by exercising a right under the employment standards provisions in Part II and Part III of the Canada Labour Code. In addition, an employer must ensure that an investigation appropriate in the circumstances is conducted into incidents or complaints of workplace harassment and discrimination.
Relevant Articles of Interest:
When is the Duty to Investigate and Duty to Accommodate Triggered?
The duty to investigate and the duty to accommodate are triggered once the circumstances requiring such is made known to the employer, even if the employee failed to file an official report following company harassment and discrimination guidelines if one exists.
In E.S. Fox Limited v A Director under the Occupational Health and Safety Act, 2020 CanLII 75931 (ON LRB), the Ontario Labour Relations Board (OLRB) held in para. 76 that the fact that the applicant employer had not received a formal complaint from the complainant employee was immaterial to its duty to carry out an investigation. The Employer’s ability (or lack thereof) to uncover any additional details regarding the alleged harassment may very well impact on the “appropriateness of the investigation in the circumstances.” However, the Employer knew the name of the complainant and the harasser, which was enough to initiate an investigation.
See also Metrolinx v Amalgamated Transit Union, Local 1587, 2024 ONSC 1900 (Div Ct), wherein the Divisional Court held in paras. 66–67 that seemingly private or social media communications can be considered workplace harassment if they enter the workplace or have an impact on it. The employer's duty to investigate the matter extends beyond the complainant to all employees, as all employees, not just the direct victim of the remarks, have a right to work in an environment free from demeaning and offensive comments.
What Is the Duty to Investigate?
The duty to investigate has both procedural fairness and substantive fairness requirements.
a. Procedural Fairness in Workplace Investigation
Procedural fairness is not concerned with whether the outcome of the decision was fair, but rather whether the process was fair.
The duty to investigate is triggered when an employer intends to terminate an employee for just cause or in response to a workplace harassment complaint. The process by which employers decide to terminate an employee’s employment is also relevant in determining whether just cause can be made out and whether aggravated or punitive damages are warranted for the manner of termination.
In Chapman v Canada (Attorney General), 2019 FC 975, the Federal Court considered whether the investigation process itself was adequate. At para. 42, the Court noted five protections that Chapman was not given, thus resulting in a fatally flawed investigation:
the right to know the evidence against her prior to being examined;
the opportunity to provide a full response to that evidence;
the right to know beforehand what wrongdoing she is alleged to have committed;
the right to call additional witnesses to support her position or counter-evidence already offered; and
the right to know the evidence against her before a decision regarding wrongdoing is reached on the basis of that evidence
The duty to investigate is also triggered when an employee files an accommodation request relating to one of the protected grounds under the Ontario Human Rights Code or the federal Canadian Human Rights Act, or that the employer knew or opted to know that a situation requiring workplace investigation exists.
The operational keyword is investigation appropriate in the circumstances. The more serious the matter, the greater the need for an unbiased thorough investigation.
Additional Cases Relating to Procedural Fairness:
Oberg v Saskatchewan (Board of Education of the South East Cornerstone School Division No. 209, 2020 SKQB 96) (case involving a school principal being terminated based on superficial workplace investigation).
Shoan v Canada (Attorney General), 2016 FC 1003 (involving a CRTC commissioner terminated based on a flawed investigation without procedural fairness).
Click here to contact HTW Law - Employment Lawyer for assistance and legal consultation.
b. Substantive Fairness in Workplace Investigation
Substantive fairness is a similar yet different concept. Substantive fairness relates to the fairness of the decision itself or the outcome.
i. Independence of the Investigator
In Rutledge v Markhaven Inc., 2022 ONSC 3183, the plaintiff claimed damages for wrongful dismissal after her employer dismissed her alleging cause. The employer had hired an investigator to investigate a workplace complaint made about the plaintiff. The employer alleged that it had cause to terminate the plaintiff as a result of the investigation. Among the many other issues with the procedure used in the investigation, the Court found that the investigator was not an independent third party, as the plaintiff had been advised, because the investigator was associated with the employer’s defence counsel. According to para. 44 of the case, the employer even claimed solicitor-client privilege over portions of the investigation. According to para. 67 and 71 of the case, the plaintiff was awarded $50,000 in damages for bad faith and moral damages.
ii. Impartiality of the Investigator
Impartiality of the investigator is related to independence but is distinguishable. Independence of the investigator is related to the external ties that an investigator may have with any of the parties or witnesses. Impartiality is an investigator’s ability to weigh the evidence in front of them in a fair way that is not influenced by any predetermined or subconscious biases. Because partiality is an internal process, it can sometimes be difficult for an investigator to even identify it themselves.
In Faghihi v 2204159 Ontario Inc., 2016 HRTO 1109, the Ontario Human Rights Tribunal found that the respondent had failed to properly investigate a discrimination complaint made by the applicant at least in part because of favoritism and that she preferred the employee being investigated for discrimination over the applicant.
iii. Additional Cases Relating to Substantive Fairness:
Additional Cases Relating to Substantive Fairness:
Doyle v Zochem Inc. (moral damages were ordered against the employer, and the Plaintiff was also given human rights damages when the Court found that the Plaintiff's gender and her sexual harassment complaint were likely the most significant reasons for why she was terminated), 2017 ONCA 130;
Frolov v. Mosregion Investment Corporation (human rights awarded against the employer when the investigation was based on the sexist belief that older men sexually harass younger women, such that the employer did not take the applicant’s complaint seriously), 2010 HRTO 1789 at paras. 86-90, 93-98;
Elgert v Home Hardware Stores Ltd. (Punitive damage was awarded against the employer for terminating the plaintiff for cause following a shoddy and biased investigation. The investigation against the plaintiff was conducted by a Home Hardware Head Office manager who had no prior training in dealing with sexual harassment complaints and was also known to be a friend of the father of the female employee who made the sexual harassment allegations against the plaintiff.), 2011 ABCA 112, appeal dismissed by Supreme Court with cost, 2011 CanLII 75139 (SCC).
Disclosurability of Investigation Reports
Under what circumstances can the Plaintiff employee ask for a fully unredacted copy of the investigation report?
The more serious the matter, the more likely a Court will rule that a party is entitled to a fully unredacted copy of the investigative report. In a wrongful dismissal or constructive dismissal case, the defendant employer may sometimes be required to provide the plaintiff employee a copy of the investigation report, even if internal company policy requires that the identities of witnesses and the content of investigation reports be kept confidential.
For instance, In Jarvis v The Toronto-Dominion Bank, 2024 ONSC 3853, the Ontario Superior Court ruled that confidential investigator reports may be subject to production rules.
In this case, TD terminated Jarvis for cause after an investigation into three complaints against him. Jarvis sued for wrongful dismissal.
In the motion for production of unredacted complaints and investigator’s report, the Court held that the report was referenced in the statement of defence, meaning that it was incorporated by reference and should be produced unredacted as the entire document is deemed relevant. The court did qualified the decision in stating that the Court has discretion to permit redaction where disclosure could cause considerable harm and serve no legitimate purpose in resolving the issues (qualified privilege).
The defendant did not provide the unredacted documents to the Court, and therefore could not establish that the unredacted documents would cause considerable harm.
In reaching the decision, the Court reasoned that:
The complainants delivered their complaints with the expectation that they would remain confidential, but “a promise of confidentiality does not protect communication from disclosure.” (para. 9-10)
The employer relied on the complaints and the investigation report to support its for cause termination of Jarvis. “That choice not only makes the complaints about the plaintiff relevant, it might also require the defendant to disclose the names and addresses of the complainants as persons who might reasonably be expected to have knowledge of transactions or occurrences in issue, pursuant to rule 31.06(2).” (para. 10)
"[…] while trust is important to the proper functioning of the workplace, an employer has a choice to keep the complaints and complainants confidential and terminate an employee without cause or rely on the complaints and terminate that employee for cause. If it chooses to terminate an employee for cause, it would be unfair for the terminated employee not to know the case he has to meet by obtaining disclosure of who made the allegations against him and what they were." (para. 12)
According to Jarvis v The Toronto-Dominion Bank, the level of disclosure is determined by the severity of the penalty. The level of disclosure required for a termination for cause case is far more than in a situation where an employee received a warning letter due to the investigation report. This is so, even if a corporation has an internal policy requiring the content of the investigation report and the identity of the complainants to be kept private.
This case will almost certainly have a chilling effect on complainants and whistleblowers, but that appears to be the current legal trend in Ontario.
Penalty for Failing to Discharge the Duty to Investigate
In circumstances where the Court finds that the Company failed to follow health and safety regulation and other employment law policy and regulations, failed to conduct a proper investigation appropriate in the circumstances, an award of aggravated and punitive damages might follow suit.
The following cases serve as a reminder to employers about the importance of investigating workplace complaints and the need to maintain procedural and substantive fairness during investigations.
a. Chandran v. National Bank, 2011 ONSC 777
In Chandran v. National Bank, 2011 ONSC 777, the Bank disciplined an employee on the basis of comments made by fellow employees during an employee satisfaction survey accusing Chandran of making condescending remarks and engaging in volatile and bullying behavior. Based on the results of the survey, the bank decided that it was necessary to relieve Chandran of his supervisory duties. Chandran quit and sued for constructive dismissal.
The Court found that National Bank made its decision that Chandran was guilty of misconduct without ever conducting an investigation and without giving Chandran the opportunity to defend himself against the allegations in the survey. The Court upheld Chandran’s claim for constructive dismissal, stating that “the actions of [the Bank] in reaching such serious findings of misconduct, the imposition of discipline and the mandatory transfer to alternate positions ... goes to the root of the employment contract and is a fundamental breach of the employment agreement, which constitutes a constructive dismissal.” The Court awarded Chandran damages equivalent to 14 months’ salary.
The National Bank appealed the trial judge’s decision in 2012 ONCA 205. The appeal was dismissed with a cost award of $22,600 against National Bank.
b. S.E. v. 2474489 Ontario Inc. (o/a Opa! Souvlaki), 2024 HRTO 343
S.E. v 2474489 Ontario Inc. (o/a Opa! Souvlaki), 2024 HRTO 343, serves as a warning to employers that failing to investigate a human rights complaint may and probably will result in damages.
The applicant previously worked for a franchised restaurant chain. She claimed that throughout a four-month period, her manager participated in sexual harassment, including sexual solicitation, improper statements, and unwanted touching. Despite her concerns, the personal respondent (franchise owner) did not investigate. The franchise owner simply offered to relocate the applicant to an other work site, which did not alleviate the issue because the harasser was scheduled to be relocated to that alternate site as well as the manager. The harassment evolved into two cases of sexual assault, with the franchise owner taking no meaningful action. He just offered to talk with the harasser, stating that there was nothing he could do.
HRTO ruled that the respondent (franchise owner) violated various Code sections, including the applicant's right to be free from employment discrimination and not work in a toxic environment. This was primarily due to the employer's failure to conducting a "prompt, serious, and thorough" investigation, and that the two incidents of sexual assault might have been avoided if the employer had properly addressed and investigated the complaint. The applicant was awarded $35,000 in damages and $3,492 for lost wages.
c. Additional Cases
Doyle v Zochem Inc., 2017 ONCA 130
In Doyle v Zochem Inc. mentioned above, in addition to notice of her termination, the trial judge awarded Doyle $25,000 in damages for violations of the Ontario Human Rights Code finding that Doyle’s gender and her sexual harassment complaint were likely the most significant reasons for why she was terminated. The trial judge awarded Doyle $60,000 in moral damages as a result of the manner in which Zochem dismissed Doyle. The Court of Appeal did not reduce the moral damages awarded by the trial judge due to the employer’s “double recovery” argument.
The Court of Appeal held in para. 53 that:
"the $60,000 awarded by the trial judge for moral damages is not so inordinately high as to warrant appellate intervention having regard to the conduct and the corresponding awards of damages in the jurisprudence – for example, an award of $200,000 for aggravated damages in [Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419], at paras. 72, 76, 77; $70,000 for aggravated damages in [Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520], at para. 104".
Elgert v Home Hardware Stores Ltd., 2011 ABCA 112
In Elgert v Home Hardware Stores Ltd. mentioned above, the court decided that the chosen investigator was a friend of the complainant's father, lacked neutrality and lacked experience in handling sexual harassment complaints. Furthermore, the employee was not given an adequate opportunity to respond or be provided with the details of the accusations before the interview. The investigator did not attempt to speak with witnesses who might have potentially relevant information. The employee was initially awarded $200,000 in punitive damages by the jury at trial, which was reduced to $75,000 on appeal. While decreasing the moral harm awarded, the Court of Appeal acknowledged that the decision to award punitive damage was proper.
The Court of Appeal held in para. 104 that:
"Although this jury could have concluded from the evidence that punitive damages were justified (because, for example, Elgert’s termination resulted from bias and was preordained, and because Home Hardware’s treatment of Elgert was high-handed and vindictive), we cannot accept that the amount awarded by the jury was required to punish Home Hardware. Even assuming the worst possible view of Home Hardware’s treatment of Elgert, given the constraints that accompany punitive damage awards (as well as the quantum of compensatory damages here awarded), in our view, the jury award was inordinately high and unnecessary to convey the message intended. Accordingly, we reduce the award for punitive damages to $75,000."
Karmel v Calgary Jewish Academy, 2015 ABQB 731
Another case highlighting the significance of conducting a thorough workplace investigation into the purported "cause" for termination is Karmel v Calgary Jewish Academy, 2015 ABQB 731.
Creating an arbitrary paper trail of alleged employee misconduct is NOT a substitute for a proper workplace investigation, and a prolonged pattern of such may amount to bad faith employer conduct justifying an award of moral damages. The impact on an employee's reputation and mental health is particularly significant when employment and termination take place amid a close-knit community and organization.
In this case, the employer didn't underwent any sort of workplace investigation and terminated the employee for the alleged misconducts of:
issues of enrollment, the grade 4 class, the IPP process, communication style, the principal improvement plan, and technology. Other miscellaneous concerns include denial of enrollment for children in August 2012, unprofessional behavior by staff, the teachers’ websites, not conducting exit interviews, scheduling personal vacation time, and the choice of paint colors for the school hallways
The Court found in para. 87 that the alleged misconduct had “no merit”, that Mr. Karmel, the employee, had made numerous good faith attempts to resolve the issues listed above and a case of wrongful dismissal was established.
The court found that the employer, CJA, acted in bad faith by "pursuing a strategy of papering a path to Mr. Karmel's termination in such a way as to spare the CJA from paying the balance of Mr. Karmel's salary under the remaining term of his contract" (para. 88). This resulted in Mr. Karmel's "mental distress and isolation in his community" (para. 99), seriously damaging his reputation, and rendering him unemployable in the close-knit community.
The Court of Appeal held in para. 100 that:
"... the CJA’s conduct was consistent with the sort of bad faith dealings that aggravated damages are intended to remedy. Indeed, the facts of the case are particularly insidious. I therefore award Mr. Karmel $200,000.00 in aggravated damages for the harm he suffered because of the CJA’s conduct. While this amount is at the high end of the spectrum for bad faith damages, the harm to Mr. Karmel’s reputation and mental health warrants a significant compensatory award."
Learn More About Employment Contract
Learn More about Federally Regulated Employee
Conclusion
Employers have a distinct "duty to investigate" under provincial and federal legislations, ensuring a fair and thorough examination of claims. The sufficiency of investigation reports hinges on their comprehensive nature, including witness statements, evidence analysis, and procedural and substantive fairness. Disclosability also plays a crucial role; while these reports are generally protected by confidentiality, they must be disclosed in certain legal contexts, if the situation calls for it. Organizations must balance thorough investigative practices with the legal implications of report disclosure. For those employers failing to discharge the duty to investigate, the repercussions could be dire.
In Ontario, the Human Rights Code, the Occupational Health and Safety Act, and the Employment Standards Act safeguards employees from workplace harassment, workplace discrimination and other unfair labour practices.
The federal counterpart, the Canadian Human Rights Act, and the Canada Labour Code safeguards the rights of federally regulated employees.
Office policy regarding dress code and off-duty behavior of employees walks a fine line between Bona Fide Occupational Requirement (BFOR) and actionable workplace discrimination under CHRA and the Code.
Workplace discrimination is not just an issue of inequality but one that has deep and lasting impacts on physical and mental health. The chronic stress caused by discriminatory practices worsens health conditions and contributes to the development of serious diseases. However, understanding the link between stress and health is the first step toward managing the situation.
If you’ve been a victim of workplace harassment and discrimination, wrongful dismissal or constructive dismissal don't wait or there might be serious health implications to your mental and physical health.
You may want to consult with an experienced employment law firm, such as HTW Law, to learn about your employment law rights and your legal options.
With the right legal support, employees can navigate the challenges of unfair practices and work towards a more equitable and respectful work environment.
You don't have to fight the battle alone. Speaking with an employment lawyer who is familiar with the laws and regulations regarding workplace harassment and disability discrimination, and constructive dismissal will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.
Click here to contact HTW Law - Employment Lawyer for assistance and legal consultation.