'Rushing to judgment before obtaining the facts is a common error'
“Employers have to be mindful that workplace investigations have to be conducted in good faith, but failing to provide particulars of allegations, failing to provide the employee with opportunity to explain and respond, and rushing to judgment before obtaining the facts are common errors,” says Paulette Haynes, principal of Haynes Law Firm in Toronto.
An employer demonstrated how such errors can lead to discrimination and wrongful dismissal leading after the Ontario Human Rights Tribunal ordered it to pay more than $40,000 to a worker it fired for harassing co-workers after less than two months of work.
The worker was hired in July 2019 by Teleperformance Canada, a Toronto-based customer communications and experience company, to be a customer service representative (CSR). The worker had autism spectrum disorder and his employment was initiated through an organization assisting individuals with physical and developmental disabilities. He was a full-time employee and Teleperformance paid him minimum wage.
The worker’s disability caused him to have difficulty in social interactions and verbal communications. An autism specialist describe the worker as “socially isolated and can experience significant anxiety during social situations.”
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Harassment complaints
A short time later, other Teleperformance employees complained to management that the worker was hugging and touching them. On Aug. 15, the company’s director of human resources met with the worker and told him that there would be an internal investigation about his misconduct and he was to continue working while the company investigated. The worker wasn’t given any further details about the allegations.
The worker tried to discuss his autism spectrum disorder with the HR director, but she responded by saying, “Having autism is no excuse for committing harassment.”
The HR director’s comment indicates a problem for Teleperformance right off the bat, according to Haynes.
“There are two big problems with that - number one, by virtue of making that statement, you're aware that he has a disability, and number two, you are making a judgment based on that disability,” she says. “The idea of rushing to judgment before obtaining the facts is a common error that courts have said employers make with these workplace investigations.”
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Fired following investigation
A couple of weeks later, on Aug. 28, the director of HR met with the worker again. The worker was informed that the investigation found that he violated Teleperformance’s harassment policy by making some employees and customers feel uncomfortable at work. As a result, his employment was being terminated for cause, effective immediately.
The worker launched a human rights complaint alleging discrimination based on disability. The worker argued that if he had acted inappropriately, he wouldn’t have known that it made others feel uncomfortable because of his disability. Since Teleperformance was aware of his disability, it should have discussed the matter with him and his mother before the investigation and the termination decision, he said.
Teleperformance did not respond to the complaint and did not file an official defense with the tribunal.
Teleperformance was within its right to decline to mount a defense, but an implication was that it accepted the worker’s allegations, says Haynes.
“It also gave the tribunal the opportunity to proceed with a default hearing without further notice to the company - and suffice it to say that it didn’t bode well [for the company’s chances],” she says.
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Flawed investigation: tribunal
The tribunal noted that Teleperformance did not provide a verbal or written warnings, it didn’t inform the worker about the nature of the allegations, and didn’t speak to the worker as part of the investigation. The company also resorted right to termination upon the conclusion of the investigation, the tribunal said.
The tribunal found that Teleperformance was aware of the worker’s disability, so it had a duty to explain the allegation to the worker and inquire into options for accommodation, if the disability was determined to be a factor in the worker’s behaviour. However, it was clear that the company gave no consideration to the worker’s disability and its impact on his social and interpersonal interactions, the tribunal said.
“The company failed to recognize the implications of [the worker’s condition] for which his psychiatrists had described as he was socially isolated and could experience significant anxiety during social situations,” says Haynes. “None of that was considered by the company, the worker wasn't given any verbal or written warning, and they didn't speak to him as part of the investigation process.
“The tribunal noted that the termination directly came out of a conclusion of what it described as a flawed investigation.”
The tribunal determined that Teleperformance failed to meet its duty to accommodate or inquire, and therefore the company breached the Ontario Human Rights Code.
“As a result of his autism spectrum disorder, the [worker] had difficulty with social interactions, and it would have been appropriate for the company to contact the worker’s mother or the referral agency - that goes into the procedural part of the duty to accommodate,” says Haynes. “Let's assume for a moment that they did that work of amassing all that information - then the question is, can they and how did they implement accommodation?”
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Employer should have followed up: lawyer
“I think it would have been very helpful for the company to follow up - the nature of the allegations is hugging and touching employees, but to what extent does his disorder influence that behavior or have any relationship to it?” adds Haynes. “Those kinds of questions could have been explored to enable the company to then engage in the substantive component of the duty of accommodation, which requires the employer, having gotten the salient information, to determine how they can implement reasonable accommodations up to the point of undue hardship – Ssuffice it to say none of that was done in this case.”
Teleperformance was ordered to pay the worker compensation for one year of lost wages and health benefits – more than $30,000 - plus $10,000 in general damages for injury to dignity, feelings, and self-respect. In addition, the Teleperformance management team was required to complete human rights training on disability-based discrimination and the duty to accommodate.
Teleperformance would probably have done better with the investigation if it had been conducted by an independent third party, says Haynes.
[The flawed investigation] really falls in line with some of the common errors that courts have said employers make with respect to workplace investigations,” she says. “One of the takeaways that I think comes out of this case for employers is they have to be very mindful the fact that these workplace investigations have to be conducted with procedural fairness and in good faith.”
See Rojas v. MMCC Solutions Canada aka Teleperformance Canada, 2023 HRTO 350.
