THE EMPLOYERS' EDGE
Ontario Labour Board Dismisses Pre-Emptive and Premature Complaint About Workplace Investigator
Among other obligations, subsection 32.0.7(1)(a) of the Occupational Health and Safety Act requires employers to ensure that: “an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances”. The Ontario Labour Relations Board has in the past had the opportunity to interpret the qualification that an investigation be “appropriate in the circumstances”. But a recent decision from the Board considered an interesting legal issue about the appointment of a workplace investigator. Can the Board appoint an investigator of its choosing at the request of a complainant?
In Erin MacKenzie v Orkestra SCS Inc., the Applicant complained that she was subject to workplace harassment form her superior. The Applicant was the General Counsel and Chief Financial Officer of the employer, and about five weeks prior to filing her complaint, she had been given notice that the employer was terminating her employment. The Applicant chose not to participate in a workplace harassment investigation, and instead appealed to the Board to appoint an investigator of its choosing.
The Employer appointed an investigator to address the harassment complaint when it arose. However, the Applicant objected to the appointment of the First Investigator on a number of grounds. She objected that the First Investigator was not qualified to conduct a workplace investigation, and had a conflict of interest because she was contracted to provide human resources support services to the Employer. The Applicant presumed that the First Investigator had a financial interest in pleasing the Employer, which would undermine her impartiality as an investigator. Further, the Applicant objected that she had spoken to the First Investigator about her issues generally in the past, and it would be inappropriate now for those complaints to be investigated by the First Investigator.
In the interim, the First Investigator was removed (or perhaps removed herself) from the file, and the Employer appointed a Second Investigator. The Applicant also objected to the second investigator. She claimed that the First Investigator and the Second Investigator had a working relationship, and that the Second Investigator was a relatively junior lawyer with no demonstrated experience as workplace investigator. The latter complaint was made directly to the Second Investigator, who then conveyed it to the CEO. The CEO advised the Applicant multiple times that it was the Employer’s right to select an investigator, and that she was to cooperate. The Applicant refused each time. Ultimately, the Second Investigator sent the following email to the Applicant:
Your refusal to participate in the workplace investigation without good reason is duly noted on record.
My client has advised that they emailed you highlighting my experience conducting workplace investigations, so, respectfully, it looks like your response to me below is a sham and a means to circumvent the investigation process.
Your response makes it evident that while you suggest that this investigation is important to you, you simply do not want to cooperate in moving forward.
Your refusal will be conveyed to Orkestra.
The Applicant further contended that this communication demonstrated the Second Investigator’s alleged bias and unprofessionalism. She asked the Ministry of Labour inspector who was dealing with her complaint about the First Investigator to also consider her concerns regarding the Second Investigator. The Inspector told the Applicant that would be contrary to procedure, and she would need to file a second appeal. In his Field Visit Report, the inspector determined that the First Investigator could conduct the investigation. This determination was appealed to the Labour Board.
The Applicant submitted that the Employer was unable to appoint or instruct an investigator, and asked the Board to “appoint an investigator who has the necessary training and experience to meet the minimum requirements of the statute.”
The Vice-Chair of the Board noted that this was a novel case, and the Board had not previously considered the issues raised. The Vice-Chair reviewed precedent decisions noting that an employer’s obligations are procedural in nature, and a worker who complains of workplace harassment is not entitled to a particular outcome. They are entitled to an investigation that is “appropriate in the circumstances”.
The Vice-Chair noted that it was not clear that an allegation of this sort of breach could be made pre-emptively, where the investigation had not yet been conducted. But in any event, the Employer relented to the Applicant’s objections and the First Investigator was replaced by the Second Investigator.
As for the Applicant’s complaints that the Second Investigator was junior and inexperienced, the Board ruled that:
24. … the Act does not require individuals who conduct workplace harassment investigations under the Act to have any particular qualifications. Further, the Act does not necessarily mandate the use of third-party investigators. In the Board’s experience, such investigations are often conducted by individuals with a range of experiences and backgrounds, including (but not necessarily requiring) backgrounds in human resources and the law. ... Therefore, I do not find that Ms. MacKenzie’s concerns with the Second Investigator—a lawyer—were justified. There is nothing in the Act that supports the conclusion that a lawyer, regardless of her year of call, is incapable of conducting an investigation that is “appropriate in the circumstances,” so as to justify a worker’s decision to pre-emptively refuse to cooperate with the lawyer’s investigation. …
Again, the Board took issue with the Applicant’s decision to refuse to participate in the investigation and object pre-emptively. Had she cooperated with the investigator, perhaps it would have borne out that the Second Investigator was incompetent or biased, but there were simply no facts to support the allegation when it was made.
With respect to the impugned email from the Second Investigator, the Vice-Chair ruled that it did not disqualify her from conducting the investigation. She ruled:
26. … While the Second Investigator’s comments might have revealed her impatience with the situation, they do not establish an inability to conduct an appropriate investigation. I also disagree with Ms. MacKenzie’s claim that the Second Investigator characterized her harassment complaint as a “sham.” On the face of the email that Ms. MacKenzie has provided, the Second Investigator called Ms. MacKenzie’s ongoing refusal to cooperate in the investigation a sham. I do not find that the Second Investigator’s email exchange with Ms. MacKenzie rendered the Second Investigator incapable of conducting an appropriate investigation. This is particularly so when her words are placed into context, namely that Ms. MacKenzie was directly challenging her competence to perform her job for no justifiable reason.
Ultimately, the Board entirely dismissed the Application.
This decision provides a welcome reminder that employers in Ontario are held to a reasonable standard of diligence under the Occupational Health and Safety Act when it comes to addressing harassment complaints. The Employer needs to ensure an investigation is conducted that is appropriate in the circumstances. The complaining employee is not entitled to particular investigator, or procedure, or outcome.
Note however that in the instant case, the Employer completed the investigation even without the Applicant’s cooperation, and after her termination had taken effect. It is true that employers may need to follow through and complete their investigations into harassment complaints from former employees.
There are many considerations that go into deciding that kind of investigation is appropriate in the circumstances as required by the OHSA. Many of the lawyers at CCPartners are also trained and experienced workplace investigators. We can conduct workplace investigations, and we can also advise on investigation procedures to be used by other professionals to ensure procedural fairness and reliable outcomes.
Click HERE to access CCPartners' “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.