Employer's duty to investigate when it suspects claim is false
Question: What should an employer do if an employee makes an obviously false discrimination complaint, is unhappy with the result of the investigation, and then makes additional complaints? Is the employer required to launch further investigations, even where it knows the complaints are not valid?
Answer: In all Canadian jurisdictions, employers have an obligation to provide a working environment that is free from discrimination on the grounds identified in the applicable human rights statute.
When an employer receives a discrimination complaint, it must conduct a proper investigation and take appropriate action if it finds that improper discrimination has occurred. Failure to investigate allegations of discrimination can amount to a violation of an employer’s duties under human rights legislation, even if it is ultimately found discrimination did not occur.
A discrimination complaint is a serious matter, and employees who make such complaints are expected to do so in good faith. Having said that, employers must be careful not to discourage employees from coming forward with discrimination complaints, and in most cases it will be inappropriate to reprimand or otherwise penalize an employee whose discrimination complaint is found to be unsubstantiated.
There is an important difference, however, between the initiation of a discrimination complaint that ends up being unsuccessful, and the filing of a complaint that is frivolous, vexatious or vindictive in nature. The latter is a significant employment offence, and in most cases will be grounds for disciplinary action.
The fact that an employee’s discrimination complaint has been dismissed — even if the complaint was found to be frivolous in nature — does not necessarily mean future complaints made by the same employee are invalid and can be ignored by the employer. An employer who is faced with this situation should conduct at least a preliminary investigation to determine whether there may be some basis for the employee’s allegations. Otherwise, the employer may find itself facing liability for failure to investigate.
Employers should have effective policies in place for the filing and disposition of human rights-based discrimination complaints. Such policies should include language indicating the filing of frivolous or vexatious complaints will not be tolerated and may lead to disciplinary action. Where a policy of this nature is supported by appropriate training, it will be less likely the employer will be burdened by complaints that are clearly false.
