Canadian employers must walk a fine line in not derailing legitimate discipline while investigating in good faith, say experts
“It’s unfortunately fairly common."
So says employment lawyer Frank Portman of Massey Law in discussing complaints about harassment that employees raise just as a termination decision is being made.
“Employees are quite adept at seeing the writing on the wall, and things are not going in their favour. And so there are pretty regular attempts to use these processes,” he says.
That can put employers in a difficult position, as seen in a recent decision involving T&T Supermarket, and the subsequent judicial review in Cai Song v. Ontario Labour Relations Board.
The Ontario Labour Relations Board (OLRB) accepted that the employer ended the employment because the worker refused to remove a lengthy social media post attacking the company, and not because of a harassment complaint or union activity, as he alleged — and the judicial review agreed.
The decision provides lessons for employers on how to handle complaints that arise while disciplinary actions are being taken.
Harassment complaints amid performance management
The Board found (in its June 2025 decision) that the internal complaint by the individual against a co-worker was not a factor in the termination decision, concluding it was timed and framed in a way that suggested it was about protecting himself from discipline.
Assessment of the employee’s motivation and his timing were key to the Board’s decision to reject his reprisal allegations. What the court saw in the T&T case aligns with a pattern HR professionals will recognize: complaints surfacing only after performance has become a serious concern, says Portman.
He describes how these dynamics often unfold when employers are trying to manage performance issues that may lead to discipline or termination.
“If somebody is having their performance managed, and it’s becoming more of a problem... [and] it’s escalating to maybe more of a disciplinary thing, where termination may be more on the horizon, those are the situations where I think you see … defensive complaints a little bit more frequently, because the employee is trying to stave off what they see as an outcome that they want to avoid.”
How decision-makers evaluate timing, context
Employers aren't likely to have concrete proof that a harassment complaint is tactical, Portman explains, which is why adjudicators in cases like Song generally focus on surrounding circumstances rather than looking for explicit proof.
“It’s not common to ever have a smoking gun that this is a bad faith harassment complaint; nobody ever comes out and says that,” he says.
“What they do instead is evaluate – like they have in this case – the context.”
In the T&T case, the OLRB highlighted the delay between the alleged misconduct and the employee’s complaint, and the coincidence between the complaint and the disciplinary trajectory around a social media post. For employers, that underscores how closely decisionmakers will examine whether a complaint is raised promptly and proportionately to the alleged behaviour, says Portman.
“What’s the timing of it? Is this something that is alleged to have happened months ago, is it now only coming up at a point where the employee sees their job in jeopardy?” he says.
“What’s the magnitude of it? Is it something that is very clearly a significant issue and cause for concern or is it something more trivial that’s being dressed up to be something more significant, to try and create an issue where there is none?”
Investigations that support, not derail, HR decisions
According to Portman, one of the central challenges for employers is deciding what to do with performance management or termination decisions that are already in motion when a harassment complaint arrives. He says the first priority is to avoid allowing a complaint to derail a justified disciplinary process.
“Filing a complaint, even if there is a disciplinary or a harassment type issue, it doesn’t impact the underlying process,” he says.
“And if you get dissuaded, if that process gets delayed, it can jeopardize any action down the road you take.”
However, that doesn’t mean employers should simply dismiss a poorly timed complaint as defensive – Portman emphasizes that employers must honour their own procedures, even when they suspect the complaint’s motives.
Beyond the investigation outcome, the Song decision turned on who the OLRB believed – it found the employer’s witnesses were credible while the applicant was unreliable. The court also refused to revisit that evidence.
“Employers shouldn’t be afraid of calling out this kind of behaviour, provided that they have done whatever procedural steps their policies require them to do,” Portman says.
“Leaving these kinds of allegations unaddressed can actually lead to more difficulties down the road, but it’s one of those things that employers don’t like to do, because it involves you accusing someone, or stating that you believe that somebody’s doing something from an improper purpose.”
