Williams HR Law LLP

The Fallout from Workplace Investigations Done Wrong

April 8, 2016

[vc_row][vc_column width=”1/3″][vc_single_image image=”1993″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]It’s no secret that many employers struggle when it comes to conducting comprehensive workplace investigations.

The objective of a workplace investigation is to gather all the relevant facts surrounding a complaint or workplace incident and carefully consider the issues brought forward. The person appointed to conduct the investigation, be it an internal or external investigator, gathers the relevant facts by collecting documents and conducting interviews. Procedurally, it is critical that the investigator conduct the investigation fairly and impartially and ensure that the investigation is conducted as confidentially as possible. Once the relevant facts have been gathered and distilled, the organization is then well placed to make decisions regarding the complaint or workplace incident.

A recent case, Fredricks v The BTS Network, 2015 HRTO 1597, is just one example where this procedure was not followed. Farouk Fredricks, the applicant, alleged that his employment had been terminated as a reprisal for raising allegations of racial discrimination and harassment against a co-worker. He was a driver for the employer’s bus company, The BTS Network, where he had worked for just over a year before his employment was terminated. Fredricks alleged that he had been dismissed after claiming that he had experienced difficulties with a co-worker, some of which he linked to racism. The BTS Network maintained that Fredricks was dismissed because he had refused to stop working for another bus company on a part-time basis. Fredricks stated that he was not required to work exclusively for The BTS Network as a condition of his employment.

Before Fredricks’ employment was terminated, The BTS Network did the following to investigate his complaint of racial discrimination and harassment. The BTS Network appointed its Human Resources manager an internal investigator. The investigator appointed was married to the President of the Company. Following Fredricks’ verbal allegations, the investigator asked that Fredricks put his concerns in a letter. The investigator provided a copy of Fredricks’ letter to the co-worker who was the subject of the complaint. The co-worker prepared a written response and sent it to the investigator. The investigator then prepared a letter to Fredricks which included his letter, the co-worker’s written response and “additional BTS responses to some, but not all” of Fredricks’ concerns. The letter concluded that Fredricks’ concerns were unsubstantiated and stated that “this is not a case of racism, harassment or intimidation; but simply misperception and misunderstanding between two co-workers”. The investigator did not speak to Fredricks about his concerns, nor did she speak to the co-worker about her response to Fredricks’ concerns. Fredricks’ employment was terminated shortly thereafter.

The Human Rights Tribunal found for Fredricks and agreed that the termination of his employment was a reprisal under the Human Rights Code. The Adjudicator found The BTS Network’s investigation to be woefully inadequate, as it was limited to collecting a written response to the allegations from the co-worker.

The case offers several lessons for employers conducting workplace investigations:

  • Investigators must review written complaints and meet with the parties and any necessary witnesses to collect the relevant information.
  • Investigators must give thoughtful consideration to the information collected and make findings of fact on that basis.
  • Employers should avoid selecting investigators who have personal or professional relationships that could give rise to the perception of investigator bias.
  • Improper investigations can themselves give rise to a human rights complaint.
  • All allegations of discrimination, harassment or violence should be investigated with care.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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