Two recent cases serve as a reminder to employers about the importance of investigating workplace complaints and the need to maintain procedural fairness during investigations. The first case underscores the importance of procedural fairness in conducting investigations. Although this was an investigation conducted under federal regulations, the principles are equally instructive to provincially regulated employers. Importantly, the duty of procedural fairness is owed to both the complainant and respondent and contemplates participatory rights including an opportunity to respond.
The second case is an Ontario human rights case. Although the Ontario Human Rights Code (the “Code”) has no explicit requirement for an investigation, this case serves as a caution to employers that a failure to investigate a human rights complaint can result in damages.
Marentette v Canada (AG), 2024 FC 676
In this case, the applicant was a Border Services Officer with the Canadian Border Services Agency (the “Employer”). He had filed a workplace complaint under the federal Work Place Harassment and Violence Prevention Regulations, SOR/2020-130 alleging a pattern of workplace violence and harassment. The complaint involved serious allegations including, among others, a hate crime, sexual harassment, inappropriate comments, physical violence, threat of reprisal, and being called derogatory names. The allegations spanned a period of 20 years from 1995 to 2020. The Employer appointed an investigator to conduct the investigation. The investigation ultimately concluded that none of the occurrences alleged by the applicant constituted workplace harassment or violence.
Unsatisfied with the outcome, the applicant commenced a judicial review, seeking an order to set aside the investigation report on the basis that the investigation violated the principles of procedural fairness. The applicant’s principal concern was that his participatory rights were limited because he was denied both the right to know and respond to (1) the positions advanced by the responding individuals and the witness interviewed by the investigator, and (2) the preliminary findings of the investigator.
The Employer had a checklist for the investigative process which included, among others, the following: (1) provide a copy of the investigator’s preliminary report to the principal party; (2) provide a copy of the investigator’s preliminary report to the responding party; (3) obtain comments from the principal party and responding party and send to the investigator.
The Court confirmed, as articulated in prior jurisprudence, that workplace harassment and violence investigations must be afforded a high level of procedural fairness due to the potentially serious consequences and the profound impact on the workplace environment and relationships. Given the severity of the allegations here, an even higher threshold of participation was required. The applicant ought to have had a full and fair chance to respond throughout the investigative process. The Court held that the investigation did not comply with the principles of procedural fairness and set aside the Employer’s decision to dismiss the complaint. The Court referred the matter back to the Employer for a new investigation conducted by a new investigator.
Key Takeaways:
- Where the allegations are severe, there is a higher obligation of procedural fairness. A complainant may need to be given an opportunity to comment on the information the investigator obtains from respondents and witnesses before closing the investigation.
- A duty of procedural fairness always exists and applies to administrative decision-making, regardless of whether it is explicitly recognized in government regulations, policies, or programs.
- The duty of procedural fairness is owed to both the respondent and complainant in the investigation.
S.E. v 2474489 Ontario Inc. (o/a Opa! Souvlaki) and Fahim Rahmatyan, 2024 HRTO 343
This application was brought by a former employee of a franchised restaurant chain before the Human Rights Tribunal of Ontario (the “Tribunal”). The applicant settled her application against the broader franchise group prior to the hearing. Accordingly, the hearing proceeded only against the corporate respondent, franchise, and personal respondent, franchise owner. As these respondents did not respond to the application, the hearing proceeded as a default hearing in their absence.
The applicant alleged that over the course of four months, her manager engaged in a course of sexually harassing behaviors, including sexual solicitation, inappropriate comments, and unwelcome touching. Despite complaints, the personal respondent (franchise owner) failed to investigate her complaints. The franchise owner only offered to move the applicant to a different work location, which did not resolve the issue as the manager was intended to be transferred to that alternate work location. The harassment escalated to two instances of sexual assault, with the respondent offering no meaningful action. He simply offered to speak to the manager, with the caveat that there was nothing he could do.
The adjudicator found that the respondent breached multiple provisions of the Code, including the applicant’s right to be free from workplace discrimination and right to not work in a poisoned environment. This was largely due to the employer’s failure to fulfill their duty of a “prompt, serious, and thorough” investigation. Importantly, the adjudicator found that the two instances of sexual assault may not have occurred if the employer adequately addressed and investigated the first complaint. The applicant was awarded $35,000 in damages and $3,492 for lost wages.
Key Takeaways:
- Failure to take reasonable steps to investigate complaints of workplace human rights violations may amount to a Code breach.