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Duty to Investigate Workplace Issues

Many employers will be aware of the need to investigate allegations of workplace human rights abuses. The duty to investigate is, however, not one limited to human rights issues. The failure to do so, before acting, may lead to substantial liability. If in doubt, the much preferred course of conduct is to conduct a fair and neutral third party investigation.

The following demonstrate circumstances which mandate that the employer conduct an investigation of workplace issues.

Human Rights

The employer has a mandate to investigate on a timely basis any allegation of a human rights violation in the workplace. The investigation should be neutral. The failure to perform this investigation may weaken the ability of the company to defend the case. At one time, Ontario law allowed a separate claim due to the failure to investigate, regardless of the success of the underlying case. Although this appears to be no longer good law, it does nonetheless underpin the need for such action.

If the offensive action, such as sexual harassment, is ongoing, it is arguable that the failure to investigate and hence intervene promptly may lead to enhanced damages suffered by the victim.

In addition, failing to take prompt corrective action could add weight to the argument of a “poisoned work environment” in human rights cases. This finding is critical in sexual harassment cases as the employer has direct liability for such liability, yet typically no liability for a direct sexual harassment case.

Workplace Violence & Harassment

Ontario’s Occupational Health and Safety Act creates a legal duty upon the employer to do two things. The first is to create a written policy which is designed to its workforce remains free from workplace violence and harassment.

This policy must also set out how a complaint is to be reported and in what manner the complaint is to be investigated.

Of further note is that Ontario amended this statute as of September 2016 to include “workplace sexual harassment” within the definition of “workplace harassment”.

In addition, the employer must ensure that an appropriate investigation is conducted of all incidents and complaints of workplace harassment, that the worker be advised in writing of the results of the investigation and of any corrective action.

Hence, two statutory provisions mandate the investigation of a sexual harassment complaint.

Allegations of Just Cause Involving Serious Misconduct

An employer which asserts just cause to terminate must have in place a firm investigative support to justify termination. Absent such preparatory steps, should the employer terminate by asserting just cause, again for serious allegations of misconduct, it will face liability for incremental damages, described below.

Assertions of just cause will include, but are not limited to, fraudulent conduct, financial misappropriations, sexual harassment, or similar abusive conduct. In the broadest context, this duty will apply to all allegations of serious misconduct.

The results of the investigation will not bind a judge in court. Should the investigator, for example, recommend termination for just cause, a judge may nonetheless come to his or her own conclusions based on the evidence at trial. However, the fact that the investigation has been completed, preferably by an independent neutral third party, will insulate the company from any incremental damages over and above the normal wrongful dismissal claim. This will show that the company acted fairly. It may lose the defence of just cause, yet will not be subject to any extraordinary damage claims.

In a situation where no investigation has been completed and the employee is terminated based on such serious allegations, the company will be exposed to incremental claims for aggravated or moral damages. The court also may consider an award of punitive damages where the conduct is malicious or reckless.

Significant amounts have been awarded for aggravated damages such as $200,000[1], $125,000[2], $85,000[3] $75,000[4], $50,000[5], $30,000[6], and $20,000[7], all of which arose due to the failure of the employer to conduct a proper investigative basis of the just cause allegations. All of these cases involved an allegation of serious misconduct which was unproven at trial without investigative support.

It is also critical to note that such additional damage sums are not influenced by an employment contract which may set out a pre-determined severance sum due on termination of employment.

Let Legal Advice Guide Your Actions

This subject provides a good example of how preventive advice may eliminate significant liability for the employer. A quick meeting or phone call can lead to dramatic protections.

As an employee, you must be aware of the obligations of fairness to which you are entitled. As noted, the courts have been very generous to persons who have been treated unfairly.

Let legal advice lead your actions. Whether you be employer or employee, this duty to investigate should be understood in order to protect your rights in the workplace. The employer has all the advantages of preparing a fair and reasonable response to such a case, yet bears all the liability should it fail to do so.

If you are facing such employment issues, contact Sultan Lawyers by phone at 416.214.5111 or by email at jrotenberg@sultanlawyers.com.

 

 

 

 

 

[1] Boucher v Walmart

[2] City of Calgary v CUPE 2013 2013 CanLII 88297 (AB GAA) The damages in this case were described as general damages but are to the same effect.

[3] Tl’azt’en First Nation v Joseph, above

[4] Pate v Galway Ontario Supreme Court, trial level 2009 on first instance

[5] Downham

[6] Lau v Royal Bank of Canada 2015 BCSC 1639 (CanLII) rev’d on appeal re liability

[7] Chapell v CPR June 2010 29 Alta LR (5th) 380, 2010 ABQB 441 (CanLII)


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