February 17, 20161

Workplace Investigations Gone Wrong: What Every HR Professional Needs to

Know

Human Resources Professionals Association

February 17, 2016

Rudner MacDonald LLPCynthia Ingram

Senior Associate

February 17, 20162

DisclaimerThe user is authorized to use this presentation for the user’s own needs only, and is not authorized to make copies thereof for sale or for use by others.

The information provided in this presentation is intended as general legal information only, and is not legal advice or a complete statement of the law on the particular topics.  Every situation is unique and involves specific legal issues. 

If you would like legal advice with respect to the topics discussed in this presentation, we would be pleased to assist you.

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Agenda1. Why investigate? 2. Changes on the horizon!3. Why conduct a reasonable and effective workplace

investigation? 4. How to conduct an effective workplace

investigation5. Choosing an investigator6. Privilege7. Questions

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POLLING QUESTIONWhat type of complaints require an employer to conduct a workplace investigation?

□ Bullying □ Harassment (other than sexual)□ Sexual Harassment □ Discrimination□ Employee Theft□ Employee/Workplace Violence

Effective Workplace Investigation – Why?

DUTY TO INVESTIGATE

The “Duty” to InvestigateLaskowska v. Marineland of Canada Inc., 2005 HRTO 30The duty of an employer to provide a workplace free from discrimination incorporated a duty to investigate as a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of providing its employees with a discrimination-free environmentFebruary 17, 2016

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BUT…Scaduto v. Insurance Search Bureau, 2014 HRTO 250“The breach of the Code is not the failure to investigate per se... Employers are well-advised to investigate human rights complaints as the failure to do so can cause or exacerbate the harm of discrimination in the workplace. Internal investigations provide employers with the opportunity to remedy discrimination, if found, and can prevent Applications being filed with the Tribunal. They also limit employers’ exposure to greater individual and systemic remedies. The failure to do so is at their peril. But, if they fail to investigate discrimination that does not exist, that failure is not, in and of itself, a violation of the Code.”

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The “Duty” to InvestigateZambito v. LIUNA Local 183, 2015 HRTO 605“The Tribunal’s jurisprudence recognizes that s. 5 of the Code imposes a duty on employers to investigate a complaint of discrimination. The rationale underlying the duty to investigate is to ensure that the rights under the Code are meaningful.”

“The duty to investigate is a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment.”

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Changes on the Horizon March 6, 2015 - It’s Never Okay: An Action Plan to Stop

Sexual Harassment and Violence Bill 132 – Sexual Violence and Harassment Action Plan

Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 Includes amendments to the OHSA expand the obligation

under s. 25(2)(h) of the OHSA to include and increase protection from workplace sexual harassment as a safety issue

Creating educational tools and materials for employers Change the definition of workplace harassment to include

“workplace sexual harassment” throughout the OHSA

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Changes to the OHSA Workplace Sexual Harassment: (a) engaging in a course of

vexatious comment or conduct against a worker in a workplace because or sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or (b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

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Changes to the OHSA New statutory duties to be imposed on employers:

measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, where the employer or supervisor is the alleged harasser;

set out how incidents or complaints of workplace harassment will be investigated and dealt with;

set out how information obtained during an investigation will be kept confidential unless the disclosure is necessary for the purpose of the investigation or taking corrective action, or is otherwise required by law;

set out how a complainant and an alleged harasser will be informed of the results of the investigation, in writing, and of any corrective action that has been, or will be, taken; and

require employers to review programs addressing harassment as needed, but at least annually.

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Changes to Duty to Investigate

Statutory duty to investigate “incidents and complaints” of workplace sexual harassment

Not limited to formal complaints One proposed change would give and MOL/OHSA

inspector the power to order and employer to hire an independent third party to conduct a workplace investigation of harassment, and obtain an investigation report at the employer’s expense

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Effective Workplace Investigation – Why?

COSTS ASSOCIATED WITH THE FAILURE TO

INVESTIGATE

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The Cost of a Failure to Investigate

Islam v. Big Inc., 2013 HRTO 2009 “…a failure to investigate a complaint of

discrimination sincerely made must have the effect of worsening the situation of an individual who has complained in good faith, as it conveys an indifference to that individual’s situation and a denial of his or her dignity.”

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Morgan v. Herman Miller Canada Morgan v. Herman Miller Canada Inc., 2013 HRTO 650 Morgan filed an application before the HRTO claiming

discrimination based on race Alleged conduct included the assignment of menial tasks,

being disciplined in an unfair manner and the termination of employment as a result of bringing a complaint to management

Adjudicator concluded the events and incidents complained of were not motivated by racism

Conclusion that there was no discrimination

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Morgan v. Herman Miller Canada

Outcome Morgan awarded damages of 14 months' lost wages,

plus $15,000 as damages for injury to dignity, feelings and self-respect

Adjudicator noted the company's duty to "address and respond" to Morgan's complaints

There was no finding of discrimination but the company was liable for failing to conduct an investigation and respond to Morgan’s "belief" that his rights were infringed

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The Cost of a Failure to Investigate

Sears v. Honda Manufacturing of Canada., 2014 HRTO 45

“…it is well-established in the Tribunal’s jurisprudence that the Code imposes a duty on organizations to investigate a complaint of discrimination, and that a failure to investigate can attract liability, even if the Tribunal ultimately dismisses the underlying allegations of discrimination.”

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The Cost of a Failure to Investigate

Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 At trial, Ms. Boucher was awarded $200,000 in

aggravated damages, and $1 million in punitive damages, $100,000 for infliction of mental suffering against the store manager, and $150,000 for punitive damages against the store manager

On appeal, the Court reduced the two punitive damage awards, but upheld the aggravated damages and damages for infliction of mental suffering

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Indirect CostsEven with the best intentions to conduct a thorough

and proper investigation, errors can be madeErrors in workplace investigations can be costly to

the company, including in indirect costs such as corporate brand and reputation, employee morale, and employee turnover

Remember that employees not involved in the investigation will still be watching, since it could be them coming with questions, concerns or a complaint in the future

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CONDUCTING AN EFFECTIVE WORKPLACE

INVESTIGATIONInspector Clouseau vs. Perry Mason

"When you turn your mind to the solution of a crime, you ferret out the truth."

Hamilton Burger, The Case of the Caretakers Cat

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Pre-Investigation PreparationCarefully plan your workplace investigation,

particularly if the allegations or complaints are of a serious, sensitive or personal nature

Determine if the investigation will be conducted internally or externally

Ensure that internal investigators assigned to the investigation have received proper training and are aware of the context, including the legal context, of the complaint and allegations involved

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Pre-Investigation PreparationDetermine which employees should be involved in

the investigationWhen multiple matters require investigation, or

where there are cross-complaints, determine whether they should be investigated together or separately

Ensure the investigation process, and what you expect, is communicated to the employees involved in the investigation

Determine what you know, and what you need to learn

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The Role of Policies

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POLLING QUESTIONDoes your Workplace Harassment Policy include a section addressing your complaint and/or investigation process or procedure?

□ Yes□ No

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Policies Every company should have written policies in place that

speak to how employee complaints will be addressed Policies should include:

How to report How complaints will be investigated What steps will be taken to protect confidentiality, including

identity What steps will be taken to protect the complainant, witnesses

and the accused from reprisal – NO REPRISAL! Guidelines for Managers setting out what to do when a

complaint is received The role of the union, including the right to representation The timeline for investigation How the parties will be kept informed

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PoliciesMake sure the investigator reviews the corporate

policies before meeting with any witnessesCopies of policies should be maintained on hand

for quick referencePolicies are to be followedFailure to follow polices is a poor practice and

could expose the employer to further liabilityThe HRTO wants to see that processes are not

only in place, but they have been followed

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Disotell v. Kraft CanadaDisotell v. Kraft Canada Inc., 2010 ONSC 3793 Allegations of sexually inappropriate and offensive

comments made by co-workers Disotell complained to supervisor many times Once on sick leave, Kraft conducted an investigation Internal investigation by HR Investigator did not interview the 4 employees accused

of harassment, or any of the other employees working on the night shift

Conflicting information, yet night shift employees not interviewed

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Disotell v. Kraft CanadaCostly Mistakes Supervisor failed to inform management of

allegations or intervene Relevant witnesses not interviewed Contradictory evidence overlooked Unskilled investigator Workplace policies not followed

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Don't Delay If aware of situations of discrimination, harassment or

violence in the workplace, investigate immediately The employer may also be obligated to conduct an

immediate investigation – such as when a complaint of harassment or discrimination is alleged to have contravened the OHRC or the OHSA

If not handled quickly, law suits could be in your future Witness memories fade over time, or witnesses may

change their mind or have time to concoct stories A court or tribunal may interpret the delay in conducting

the investigation as the company considering the complaint as not serious

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Don't Delay When a complaint is made, simply

accepting the allegations and offering nothing more than a “sounding board” to the complainant is not enough

Complaints must be taken seriously and dealt with promptly in a manner consistent with internal policies

Sears v. Honda Manufacturing of Canada

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Interviews Interview questions and answers guide you to where you

want to go Questions should focus on the relevant facts: the 5 Ws,

and how It is a personal decision and preference of the

investigator whether to have written questions Don’t just interview witnesses thought to have relevant

evidence or information Interview all witnesses, favourable or unfavourable, and

follow-up with witnesses as necessary The focus of the interview is fact-finding to determine the

truth, not an interrogation

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Employee InvolvementBoth the complainant and the respondent should

be interviewedAn employee under investigation should have the

chance to respond to the allegations, as well as information the investigator intends to rely on in making a decision

Determine whether an employee should be instructed not to approach or communicate with a witness or co-worker

At a minimum, the parties should be advised not to talk about the investigation

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CommunicationEmployees should know they are being asked to

participate in an investigation, and what the purpose of the investigation is before any interview

You need not share your questions with the employees in advance

Follow-up with the parties if new details come to light in the course of the investigation

Communicate the results of the investigation with the parties, and outline what steps will be taken to resolve the issue

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Collecting and Recording Evidence

Gather and preserve all documents and evidence available

Be open to receiving and reviewing information that seems outside the mandate of the investigation

Meet with key witnesses Take steps to ensure evidence that may be lost, modified

or deleted, whether in the ordinary course of business or not (i.e., emails, voicemail messages, video surveillance) are preserved

Failure to preserve relevant documentation and evidence may be fatal to an investigation

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ConfidentialityKeep the process confidentialDo not give any guarantee of confidentiality to

those who participate in the investigationAdvise participants that the information obtained

in the course of the investigation will be held in strict confidence, except as necessary to investigate and respond to the complaint

Information obtained in the investigation will not be used in any form of retaliation

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Third Party InvestigationsDo not rely on police investigation instead of your

own if an employee is suspected of criminal conduct, or is charged with a criminal offence (i.e. theft, assault)

Conduct your own independent investigation, reach your own decision, and act on that decision, regardless of any police or crown investigation

The standard of proof for criminal proceedings is higher than the standard for employers in proving grounds for employee discipline or termination

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Do Not Predetermine the Issue

An investigator must keep an open mindThe investigator should be someone who is

objective and independentIndependence will ensure the absence of both

conscious and unconscious bias

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Do Not Fear the ResultsIn some cases, particularly in the case of serious

complaints which are upheld, there may be discipline, terminations, or an employee may choose to leave the company

You cannot fear the possible results, since it could impact your investigation

An investigation is a fact-finding exercise, not an exercise in damage control

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Keep Records Notes, documents and reports that are part of

the investigation should be retained and preserved

Investigation record retention should form part of your workplace investigation practices and policies

Notes and records of the investigation should include all communications, and in particular communications to the parties and witnessesSee Bank of Montreal v. Payne, 2012 FC 431

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Act on the ReportIf you receive a report which confirm that

discrimination or harassment occurred or exists in the workplace, act immediately

Address any inappropriate behaviour or misconduct in an appropriate manner and in accordance with your policies

Ensure there is training/re-training on workplace policies

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WHEN TO INVOLVE AN EXTERNAL INVESTIGATOR

"If you have a problem, if no one else can help, and if you can find them, maybe you

can hire the A-Team."

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POLLING QUESTIONAre your workplace investigations conducted by internal or external investigators?

□ Internal□ External□ Both – Dependent on the investigation

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Considerations in Choosing an Investigator

Impartial investigations begin with the choice of investigator Those responsible for selecting and retaining an investigator

should consider the following Experience and skill set Knowledge of the industry Knowledge of the workplace Knowledge of the subject matter in issue An understanding of the legal process

Check references Understand your time and budget limitations Ensure clear communication with the investigator

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Elgert v. Home HardwareElgert v. Home Hardware Stores Limited, 2011 ABCA 112 Sexual harassment allegations made against Elgert, an

employee with almost 17 years service A father of one of the complainants initiated complaint and

investigation process and the file was managed by two of that employee's friends

Internal investigator had no training in conducting sexual harassment investigations

When asked what he had done, the investigator told Elgert "You know what you did“

At trial, awarded 24 months’ pay in lieu of notice, aggravated damages of $200,000 and punitive damages of $300,000

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Cromwell v. Leon’sCromwell v. Leon’s Furniture Limited, 2014 CanLII 16399 (NSHRC) Complaint of racial discrimination in various forms,

including unnecessary discipline alleged workplace infractions, being passed over for management positions, and consistently teasing and name calling

The internal investigator was in a romantic relationship with the complainant, but told no one

Investigator concluded no support for the complaint NSHRC found the investigator was in a clear conflict

which undermined the reasonableness of the investigation

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External InvestigatorWhen to consider an External Investigator:

Complaint is of a serious nature Complaint is against the company's senior

executives, human resources or the person who would conduct the investigation

Lack of time and resources to conduct an appropriate investigation

High risk for legal liability and/or changes against the company

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POLLING QUESTIONWho are your external investigators?

□ Company Lawyer□ Lawyer, other than the Company’s lawyer□ HR Consultant

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Azeff and Bobrow v. CIBCAzeff and Bobrow v. CIBC, 2013 QCCRT 299Facts: Investigation conducted based on allegations of insider

trading Investigation conducted by an external investigator who

was a member of the firm that CIBC was a major client Lack of advanced notice to participate in investigation Investigator made assumptions on credibility that were

not founded on facts Employees not provided with reasons for termination

until 1.5 years after the investigation and termination

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Azeff and Bobrow v. CIBC

Costly MistakesLack of notice of allegations Failure to provide crucial evidence in advancePerception of bias for the investigatorFailure to communicate the outcome of the

investigation in a timely manner

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PrivilegeSometimes a company wants to maintain privilege

over an investigation process and reportExample: If there is a risk of serious and/or

criminal liability for the company depending on the outcome

Retaining a lawyer to conduct the investigation can include providing legal advice, assessing liability and giving recommendations to the company

Alternatively, the investigator can be retained by your counsel

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North Bay General Hospital v. Ontario Nurses' Association

North Bay General Hospital received a complaint that one of its nurses had been the subject of bullying and harassing behaviour

The Hospital retained an investigator, a lawyer, to make a determination of what occurred

At the conclusion of the investigation, the Hospital communicated to the respondent that she had violated Hospital policies

The nurse was warned and demoted, and grieved the decision

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North Bay General Hospital v. Ontario Nurses' Association

The union brought a pre-hearing motion for production of the investigator’s report and communications with Hospital representatives

The Hospital objected, relying on privilegeThe arbitrator ordered the production of the

report and the communications surrounding the report

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Privilege"Some individuals who conduct these

investigations as independent third parties are lawyers, some are not. I see no reason to distinguish between these two groups if the

purpose for which they were retained is the same, of investigating events to make findings of fact. I

see no reason to attach solicitor and client privilege to a relationship which is not that of solicitor-client just because one of the parties

happens to be a lawyer."

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Privilege So long as the investigation process, including the terms

of reference, make it clear that the purpose of the investigation is to provide legal advice, the entire investigation process and report may be privileged from disclosure

It is recommended to include in the retainer that the investigator has been retained as an employment lawyer to conduct the investigation, and that the report will be used as the basis for providing legal advice

Representatives of the employer should not interfere with the investigation process or the final determination reached by the investigator

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Final ThoughtsMorgan v. University of Waterloo, 2013 HRTO 1644Laskowska v. Marineland of Canada Inc.

Elements of a “reasonable” investigation: The response must be prompt Relevant policies exist There must be corporate awareness that the conduct complained of

is prohibited The matter must be addressed seriously There must be a complaint mechanism in place – and training The employer must act so as to provide a healthy work environment The employer must communicate its actions, including the outcome

of the investigation, to the complainant

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Questions

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Workplace Investigations Gone Wrong: What Every HR Professional Needs to

KnowCynthia C. Ingram

Rudner MacDonald LLP Senior Associate

cingram@rudnermacdonald.com(416) 640-6402

@CindyIngramLLPLinkedIn: Connect with me, and visit the Rudner MacDonald Page

Blog: Rudner MacDonald BlogYouTube: Rudner MacDonald channel\

Human Resources Professionals Association February 17, 2016