Legal experts provide takeaways for HR after employer called 'discriminatory and reprehensible' by judge
Calling the employer’s actions “discriminatory and reprehensible,” a court’s decision to award $190,000 — plus six months’ reasonable notice — to a firefighter in Ontario highlights the importance of a proper workplace investigation.
“[The woman] was marginalized in a toxic, male-dominated workplace. Her termination was based on unfounded sexist allegations,” said Justice Roger Chown in his decision.
And the unfairness was exceptional, he said.
“The defendants acted on unfounded, sexist allegations relating primarily to conduct from years prior, without properly ascertaining the truth and without even asking [the woman] about the allegations. [The CAO] conducted an amateurish investigation. He conflated gossip with facts. Without justification, he accepted the allegations and assumed the worst of the fire department’s only two paid staff. He failed to recognize the patent gender-based discrimination directed at [the employee].”
Cautionary tale for employers
While the case is somewhat of an outlier that led to a six-day trial, there are probably a lot of similarly incompetent investigations or non-investigations that happen, says Bruce Best, team lead of workplace investigations at Rubin Thomlinson in Toronto.
“It's a cautionary tale for organizations — you've got to make sure that if you're going to make a decision, that it's for the right reasons and you're not acting on making kneejerk decisions based on non-evidence or rumour. That’s just not how things should be done. And that will come back to bite you.”
Unfortunately, investigations are often mismanaged, says Aleksandra Pressey, lawyer and workplace investigator at Williams HR Law in Markham, Ont.
“The decision was absolutely scathing. It's not very common that a court calls out an investigation like that… Justice Chown said it was generous to call what they did an investigation — it was just information coming to them instead of gathering information.”
And for employers, it’s notable that these kinds of awards are trending upwards when it comes to harassment or discrimination, she says.
“These are all being taken very, very seriously — have been taken increasingly seriously — by the courts in recent years, and so as we see that evolve, and as we see more and more decisions where investigations are mismanaged, I think it's reasonable to say you will see some very high awards.”
Background of case
The plaintiff was an administrative assistant and volunteer fire captain with the Dundalk Fire Department (DFD) in Ontario. On Feb. 7, 2019, she was fired without cause from both positions by the chief administrative officer (CAO) of the DFD.
The move followed a heavy reliance on rumours and allegations of inappropriate behaviour, inappropriate pictures being texted to other firefighters, “tension within the group,” morale problems, inappropriate relationships and “sex for grades.” The department also hired an HR consultant to help with the investigation.
But in an in-depth analysis, the court found little basis to the allegations, and said the conduct of the employer and CAO was “discriminatory and reprehensible.”
“The word ‘rumours’ minimizes what was being said about [the employee]. The things being said about her were mostly unfounded, malicious, sexist falsehoods,” said Chown in McGraw v. Southgate (Township).
“[The CAO] came to incorrect conclusions because he relied so extensively on inaccurate and dated second-hand information.”
The justice characterized the employer’s defence as follows: “We did not act with malice or in bad faith or discriminate against [the employee]. We fired her because she was the object of rumours that we believed were true. We could not prove they were true, so we fired her on a without cause basis and paid severance. The pervasive nature of the rumours shows that we did not act with malice, bad faith or discrimination.”
But the justice addressed all the allegations, and concluded:
- “Not a single witness was critical of [the employee’s] abilities as a firefighter, fire captain or administrative assistant. To the contrary, the evidence overwhelmingly supports the conclusion that she was good at her job.”
- “The evidence presented at trial did not establish that [she] sent naked or otherwise inappropriate pictures of herself to other firefighters.”
- “[The CAO] admitted at trial that he embellished a rumour and when pressed in cross-examination, he admitted that he made the allegation up. It was completely false and blatant gender-based discrimination.”
The total award was made up of $75,000 for moral damages, $35,000 for damages for discrimination, $20,000 for damages for defamation, and $60,000 for punitive damages — along with the six months’ notice.
Highly flawed investigation
For one, it's a big problem that the employee was never interviewed, along with other relevant parties, says Pressey.
“The so-called investigator never obtained any of the inappropriate photos that were allegedly circulated, never spoke with anybody who had seen those,” she says. “Essentially, the court found that this was all rumour, was based on hearsay, it was unfounded, it was malicious, and it was sexist. And so the issues in this investigation are very, very wide ranging.”
If you're going to do an investigation, fairness has to be front and centre, says Best.
“The value of your decision is considerably diminished if you're not conducting a fair investigation — your results are not going to be defensible. And that's, in this case, I will say, a very extreme example.”
The CAO never actually asked the employee about all the allegations and rumours, he says.
“That was amazing. He never even got her side of the story… I hesitate to call it an investigation... it appears that what the CAO was looking for was a way to get rid of her rather than trying to find out whether or not the allegations were true.”
Neutrality is key
First and foremost, the investigation has to be about fairness, says Best.
“I may have my opinions or my thoughts about where the evidence is going, but [I] always have to take a step back and make sure that the other side has given us an opportunity to respond to the allegations. And if they say, ‘No, that's not what happened, this is what happened,’ then you've got to talk to this person, you've got to follow it up.”
It’s important not to approach the investigation with a predetermined result, he says.
“As an independent investigator, it's far more important for me as a lawyer to maintain my neutrality, rather than to satisfy an individual client,” says Best.
“If they want a particular result, they're not going to necessarily get it unless that's where the evidence leads. Maintaining that independence is a very important thing.”
For an investigator, it’s about determining whether something would be a defensible finding if this went to court, he says.
“You want to make sure that you've got the facts right… Do these facts support termination for cause or progressive discipline? Or is this not a serious issue?”
If you go into an investigation having decided on dismissal or discipline, you're not really engaging in a proper fact-finding process, says Pressey.
“You're jumping the gun, you're anticipating what the conclusion will be, you're assuming that you found something… you're already starting off on the wrong foot,” she says.
“Once the fact-finding is concluded, that's the appropriate time for a decisionmaker to take the findings of the investigation and say, ‘OK, this is the outcome we have, now here are the options that we're going to apply.’”
Witnesses make a difference
A thorough investigation doesn't mean you have to interview every witness or follow every thread, says Best, but “if there are significant issues you've got to look into, you've got to follow them up.”
You want to make sure that you're focusing on the key players, says Pressey.
“It’s different with every investigation, there's not an exact number and sometimes it's more of an art than a science. Essentially, you have to strike a balance between making sure you've collected all the information, spoken with enough relevant people to ensure that you have all the information that you need to actually come to findings,” she says.
“But you don't want to invite scope creep. So just because somebody mentioned somebody, that doesn't mean that you necessarily need to speak with them — an investigator should always retain discretion to decide who actually has relevant information… it's not necessary to keep going because you could keep going forever.”
Internal versus external investigations
As seen in this case, there are pitfalls to the person making the allegations doing the investigation himself. But internal investigations have their pros and cons.
“That's a judgment call,” says Best. “If someone's in-house and doing an investigation, you've got to be very careful; obviously, you have to check your biases and recognize the importance of neutrality.”
There are cost considerations that come with an external investigation, while an internal investigation means the person is already familiar with how the organization works and the relationships involved, he says.
“There’s no reason why you can't do an effective internal investigation, and a defensible one… but the investigator has to be honest with themselves to make sure that they can actually do that, and recognize what it is that you're trying to do.”
While the internal investigator may know the employer and the people involved, making the process more efficient, it could also make the process unfairly biased because they know the parties and have predetermined opinions of them, says Pressey.
And an internal enquiry may not make sense when the situation is very complex or involves senior employees, historical or difficult-to-get evidence or a workplace environment like this one, she says.
“When you have those kinds of complexities, internal investigators may lack the ability to remain impartial,” she says.
“Even an internal investigator who doesn't necessarily have a stake in the situation, doesn't have an axe to grind, may not be appropriate. And having an investigator without the appropriate training, the appropriate knowledge to do an investigation can really undermine the whole process.”
Even if there is someone capable do the internal investigation, do they have the capacity?
“Are they busy conducting other processes? Because, ultimately, a flawed investigation can be very, very expensive for an employer. And it doesn't even have to be so flawed, that it's negligent,” says Pressey.
“It also harms the employer’s ability to be able to rely on the investigation for whatever outcomes were actually put in place — whether it's discipline, whether it's ultimately exiting somebody — so it's really important to be intentional about these processes.”
