Ontario Labour Relations Board addresses complaint about experience, expertise
“The main takeaway is bad for employers.”
So says Barry Fisher, in discussing a recent decision from the Ontario Labour Relations Board that provides several insights that could help HR.
The case involved a lawyer and CFO who was unhappy with the people assigned to investigate her harassment complaint.
The case involved a lawyer who was unhappy with the people assigned to investigate her harassment complaint.
And in dismissing her appeal, the board said any concerns should not be made “pre-emptively” and instead raised after the investigation has “run its course.”
But that means an employer could “spend all this money and time and energy on doing an investigation,” and then be forced to do it a second time, says Fisher of Barry Fisher Arbitration and Mediation in Toronto.
“To let somebody complain about impartiality only at the end, it’s like Trump saying, ‘Oh, well, the election was fair if I win.’”
Complaint filed after six months’ notice
Erin Mackenzie was the general counsel and CFO at Orkestra, a marketing firm. On July 8, 2021, she was given six months’ notice but on Aug. 13, she raised a formal harassment complaint regarding the CEO.
Okestra appointed an investigator to address her complaint, however, MacKenzie complained that this person was not qualified and had a conflict of interest because she had a contract to provide HR services to the company.
MacKenzie also alleged that she had had personal conversations with the “first” investigator about her experiences with the CEO, so it was inappropriate for this person to investigate. She complained to the Ministry of Labour, Immigration, Training and Skills Development about the appointment of this investigator.
As a result, the employer removed the first investigator and appointed a “second” investigator, but MacKenzie took issue with this one as well. She claimed the two investigators had a working relationship and the second one was a second-year lawyer with no experience in workplace investigations.
MacKenzie challenged the investigator’s qualifications, but the CEO said it was the employer’s right to choose the investigator and she should cooperate. MacKenzie said she then felt threatened by this direction.
The second investigator then stated in an email that MacKenzie’s refusal to participate was “duly noted on record” and despite being informed of their experience as investigator, “it looks like your response to me below is a sham and a means to circumvent the investigation process.”
MacKenzie said that this communication showed bias and unprofessionalism, and when she asked the MOL inspector to consider her concerns, he said he was only dealing with the allegations about the first investigator, so she should reach out to the Ontario Labour Relations Board (OLRB).
The inspector also determined the first investigator was appropriate to conduct the investigation.
MacKenzie asked the board to “appoint an investigator who has the necessary training and experience to meet the minimum requirements of the statute.”
OLRB addresses complaint
In looking at her appeal, the OLRB noted that there have been no previous cases dealing with this kind of issue, and cited an employer’s duties respecting workplace harassment according to the Occupational Health and Safety Act (OHSA). These include having a policy and program, and ensuring that an investigation is “appropriate in the circumstances” when allegations arise.
But in the current case, the board said it was not clear “that an allegation that an employer has failed to conduct an investigation that is ‘appropriate in the circumstances’ in most cases can be made pre-emptively, as opposed to requiring the worker to let an investigation run its course and then, upon its conclusion, having the opportunity to raise concrete examples of what allegedly rendered the investigation inappropriate.
“After all, the ultimate result of an investigation may be favourable to the worker who filed the complaint, notwithstanding the worker’s initial misgivings.”
Further, individuals who conduct workplace harassment investigations under the OHSA are not required to have any particular qualifications, and third-party investigators are not mandated.
“In the board’s experience, such investigations are often conducted by individuals with a range of experiences and backgrounds, including (but not necessarily requiring) backgrounds in human resources and the law,” said Roslyn McGilvery, vice-chair for the board, in her Feb. 8 decision.
“It may have been a different story if Ms. MacKenzie had participated in the second investigator’s investigation and thereafter was able to point to inadequacies which rendered the investigation inappropriate.”
As for the communications involving the use of the word “sham,” the OLRB said this did not mean the investigator couldn’t conduct an appropriate investigation, but “revealed her impatience with the situation.”
As a result, MacKenzie’s objections to cooperating with the second investigator “were unfounded and/or premature,” said McGilvery, in dismissing the appeal. “Therefore, her appeal as a whole does not make out a prima facie case for the requested order, even if all of the facts stated in the application are assumed to be true.”
Redoing an investigation
While this may be the first case looking at the issue of qualifications, ultimately, the board never looked at it, says Fisher, “because they decided that you do it after the fact, which… is completely bizarre.”
It's like any job, he says: “You have to show at the beginning of the job that you have the knowledge, experience and qualifications.”
Workplace investigations can be “brutal,” says Fisher, and having to redo one would definitely present challenges.
He cites a friend doing an investigation that took two years, with “tons of people” interviewed and somebody dying in the interim.
“It would be absurd after all that, that the [complainant]… gets a redo because they find out, ‘Oh, well, the investigator wasn’t qualified.’”
But Sean Bawden, partner at Kelly Santini in Ottawa, says he sees where the board is coming from.
“There’s no evidence that this was going to go poorly,” he says.
“Had the whole investigation process started and then just been obvious about how poor it was going, I think you're looking at a different result. But to try and pre-emptively do it, I think this struck the board as a little premature.”
If an investigation “goes off the rails” and either the complainant or respondent decides they can't trust the findings, then it might be appropriate to make a complaint, says Bawden.
“But, frankly, I think the employer gets a first shot at it.”
Plus, it's not in the employer’s interest to get this wrong, he says, because then they have to go this whole process, “which just doubles, if not more, the cost and distraction and delay — that doesn't benefit anyone.”
Recently, an Ontario employer was ordered to pay more than $40,000 to a worker it fired for harassing co-workers after less than two months of work because of a flawed investigation.
What qualifications are needed?
As for what qualifications are needed from a workplace investigator, there's no guidance in the legislation, says Fisher.
“There's nothing specific about what a competent person is. There are various agencies, private agencies that certify people and stuff like that, but none of that's enforceable in law. So it seems to be quite left open.”
It's not prescriptive, says Bawden.
“There's a lot of discretion in the hands of the employer as to how they're going to set up their policies, how they're going to establish their practices, etc. so… there's a lot of acrimony amongst all the parties, because there's uncertainty.”
The path of lesser resistance for the legislature is to basically trust employers to figure this out on their own, he says.
“Otherwise, it's going to be very prescriptive. And one size fits all is probably not going to work for all workplaces.”
As for third-party vendors, there is some prescription under the Private Investigator’s Act, he says, but “it's a bit of a free for all. And so if you're an employer, a lot of this is [based on] reputation and, frankly, word of mouth amongst employer groups or otherwise, and from there, it's like hiring any service provider — you’ve got to do a bit of due diligence as to what their experience is, and, frankly, whether you trust them.”
Last year, an Ontario court awarded $190,000 — plus six months’ reasonable notice — to a firefighter after an improper workplace investigation.
Internal versus external?
As for whether the investigator should be an internal person or hired externally, there are pros and cons to both.
If the dispute involves higher-level employees, it makes sense to bring in someone external, says Bawden.
“If nothing else, that will likely, hopefully foster some credibility in the process amongst the parties that you don't have the HR individual from down the hall investigating the boss — that's never going to be well received.”
With an internal investigation, respondents are going to view that with skepticism as to whether or not they're going to get “a fair shake,” he says. “On the flip side, though, is the complainant may have concerns about the competence.”
And an internal person brings some advantages too, according to Bawden.
“Someone internal to the company, who knows how the company operates, knows who some of the players are that can assist in getting to the heart of the matter if the investigator understands the context.”
Most employers prefer an in-house investigator to keep the expenses down, says Fisher, “and secondly, they want to be able to somehow control the result.”
Not every employer truthfully wants an independent investigation, he says.
“Sometimes they want the complainant to win because they don't like the harasser; and other times, they like the alleged harasser and they want the complainant to lose.”
