Journal

Otherwise known as
Michael’s soapbox

2020-05-01T15:19:05-04:00 May 1, 2020|Human Resources, Human Rights, Investigations|

Problematic Investigation Did Not Amount to Discrimination

A employer has an obligation under the Human Rights Code (“Code”) to take reasonable steps to address allegations of discrimination in the workplace. There is case law that supports the proposition that a failure to do so will itself result in liability under the Code. The law, however, is not settled as to whether an inadequate or deficient investigation can amount to an independent violation of the Code in the absence of findings of Code based discrimination or harassment.

For example, where the Tribunal finds that the conduct does not rise to the level of discrimination under the Code, can an employers deficient investigation be an independent violation of the Code? The issue was most recently considered by the Tribunal in Wellington v. Southern Sanitation Inc. o/a Wasteco, 2020 HRTO 315 (CanLII).

The Applicant alleged that she had been discriminated against in her employment because of race, colour, place of origin and disability.

The Tribunal observed that the onus of proving discrimination on a balance of probabilities under the Code rests on the Applicant:

The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondents treated her as they did because of her race, colour, place of origin or disability. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41 at paragraph 46. However, the applicant need not prove that the prohibited ground(s) of discrimination was the sole factor leading to the discriminatory conduct. Direct evidence of discrimination is also unnecessary, as discrimination will more often be proven by circumstantial evidence and inference. See Phipps v. Toronto Police Services Board, 2009 HRTO 877 (“Phipps”). To establish discrimination, the applicant must establish that she is a member of a group or groups protected under the Code, that she was subject to adverse treatment and that a Code ground was a factor in the adverse treatment. See Peel Law Association v. Pieters, 2013 ONCA 396.

Credibility was an important issue. In assessing credibility, the Tribunal relied on the usual cases relied on by the Tribunal (Faryna v. Chorny, 1951 CanLII 252 (BC CA), Cugliari v. Telefficiency Corporation, 2006 HRTO 7, R. v. Taylor, 2010 ONCJ 396, R. v. Morrissey 1995 CanLII 3498 (ON CA), R. v. R.E.M., 2008 SCC 51). The Tribunal preferred the evidence of the I respondent’s witnesses to that of the applicant. (see para. 8 of the decision).

I will not review all of the evidence presented. Among other things, it was alleged that the applicant’s:

… co-workers stopped responding to her greetings and gave her the “cold shoulder” or “shunned” her by excluding her from conversations and work-related e-mail messages. As described below, there were several incidents that led the applicant to conclude that the treatment she experienced was related to the fact that she is black and from Jamaica. The respondent’s position was that the incidents in question did not happen or did not happen as the applicant described them and that if her co-workers were unfriendly it was a reaction to the applicant’s poor work ethic and punctuality.

There were complaints about the work environment, and allegations that racialized comments were directed towards the applicant (all of which were denied). The Tribunal then reviewed a number of incidents being relied upon.

On October 7, 2013, the applicant sent an email which was copied to the General Manager of the location at which the applicant worked, setting out, her complaints, including with respect to the work environment, and concluded by noting that she felt “bullied and discriminated in this environment.”

The General Manager and Regional Manager met with the applicant on October 9, 2013 to review her complaint. The General Manager and the Office Manager, who the applicant directed a number of allegations regarding the work environment, met with the applicant on October 23, 2013 to discuss the matter. The Office Manager “apologized for making the applicant feel that she was “less than an employee and not a valued member of team”. [The Office Manager] indicated that she would change her communication style and would speak to the applicant about issues with a confirming e-mail message to follow up. The applicant responded that this approach was fine.”

At this same meeting the employer twice asked the applicant “if there was anything specific the respondent or [the Office Manager] could do to make her feel more comfortable in her workplace.” The applicant indicated that there was nothing else she felt needed to be addressed.

There was a difference in the evidence of the applicant and the respondent witnesses about what happened at the October 9 and 23, 2013 meetings. The Tribunal did not accept the applicant’s evidence and found that the meetings on October 9 and 23, 2013 occurred as described by the respondent’s witnesses.

Investigation

The Tribunal then turned to the employers’ “investigation” into the applicant’s complaint which was conducted by the General Manager. As noted above, he and the Regional Manager met with the applicant on October 9, 2013. Following that meeting, he met with the Office Manager to make her aware of the complaint and to give her direction about how she should be communicating with the applicant.

After consulting with Human Resources and making corporate counsel aware of the issue, it was decided that they would handle the matter “in house” without resort to “outside resources”. They decided to devise a questionnaire that would be put to each office employee. These were the questions:

1.  How do you feel about working at Wasteco Peel?
2.  How do you like working at your job?
3.  What do you like best?
4.  What do you dislike most about your job?
5.  Do you have any interest in doing any other job?
6.  How would you describe the office communication? And how could it be improved?
7.  How would you describe the office management?
8.  If you had the opportunity to change anything in the office, what would it be?
9.  How would you describe the office morale on a scale from 1 to 10 explain?

This was administered on October 15 and 16, 2013. According to the Tribunal:

The employees’ answers give no real indication that racism was a concern in the office. That is not surprising because the questions were not designed to identify discrimination of any kind. Based on his discussion with the applicant, [the General Manager] did not understand that he was investigating an allegation of race discrimination. However, her allegations were serious and if proven could in my view be evidence of racial discrimination, even if she did not identify racial discrimination in the meeting on October 9, 2013. Whether or not the applicant’s complaint was one of race discrimination, it also fair to say that the questionnaire did not address her complaint and I hesitate to describe it as an investigation at all. At the very least, an investigation entails an attempt to determine whether a complaint is founded, which requires asking questions about the allegations.

The Tribunal then commented that it was “unfortunate that the respondent decided not to enlist outside resources in addressing the applicant’s complaint. Had they done so, they would have learned that their plan was sorely inadequate.” The General Manager who conducted the investigation was found to be “an intelligent person, well versed in the waste and recycling business” and that the employer took the complaint seriously.

The Tribunal found that the General Manager and other involved were “out of their depth”.

The Office Manager received some coaching as a result of the complaint. The applicant was given a performance evaluation, which she disagreed with. She commenced a medically supported leave of absence. The employer engaged with the applicant in trying to return her work. It met with her early in the absence and sent letters monthly. It set deadlines. The applicant argued that these letters amounted to harassment, the Tribunal disagreed and found that the employer had acted reasonably in managing the absence. The applicant did not identify any needs that required accommodation and, in the end, the Tribunal found that there had been no violation of the duty to accommodate or discrimination because of disability.

The Tribunal noted that the applicant:

…. attributed the work environment she experienced to racism. The respondent attributed it to her attitude towards her work, lack of teamwork, and her lack of punctuality. Having an “attitude” or being lazy are of course classic racist stereotypes of black people. Being over-monitored or over scrutinized can be indicia of discrimination. The theory of the applicant’s case, i.e., that a black person working in a small office with mostly white people would be subject to discrimination, is therefore certainly more than plausible.

In this case, however, the evidence did not bear this out and, as such, the Tribunal was unable to find that the applicant was subjected to a racist work environment.

In terms of the “investigation”, as noted above, the Tribunal found that it  “fell short and did not amount to a reasonable response”. The leading Ontario case is Laskowska v. Marineland of Canada Inc., 2005 HRTO 30.  In determining the reasonableness of an employers’ response to an allegation of Code related discrimination or harassment, we must look at three (3) factors, among others, according to Laskowska:

  1. Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy?  Was there a proper complaint mechanism in place?  Was adequate training given to management and employees;
  2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action:  Once an internal complaint was made, did the employer treat it seriously?  Did it deal with the matter promptly and sensitively?  Did it reasonably investigate and act; and
  3. Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication:  Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment?  Did it communicate its findings and actions to the complainant?

Here, as noted above, the Tribunal questioned whether what was done in this case was an investigation at all. As they observed, at a minimum, “an investigation entails an attempt to determine whether a complaint is founded, which requires asking questions about the allegations.” That didn’t happen in this case, and although the employer might have had good intentions, they were out of their depth and in need of outside help.

The Tribunal commented that the law is a unsettled as relates to whether an inadequate response/investigation can itself be a violation of the Code in the absence of Code based discrimination or harassment. The Tribunal preferred the approach in Scaduto v. Insurance Research Bureau, 2014 HRTO 250, where it found that the failure to investigate discrimination that does not exist cannot amount to a breach of the Code. That being said, the fact that discrimination is not proven, does not mean that the employer can simply turn a blind eye to the issue.

In Ananda v. Humber College Institute of Technology & Advanced Learning, 2017 HRTO 611 the Tribunal observed:

…. there are circumstances where it is inherently discriminatory for a respondent to fail to appropriately address or investigate a complaint of discrimination or harassment, even where the complaint is later found to be unsupported, on the basis that a respondent’s actions in failing to take such a complaint seriously and to properly respond to such a complaint violate the dignity interests of the person making the complaint in a way that is additional to and independent of the underlying allegations raised in the complaint.

If the employer knew or ought reasonably to have known of Code-related discrimination or harassment it must respond reasonably. In the Wasteco case, the Tribunal held that the applicant didn’t raise a complaint of discrimination in the meetings on October 9, 2013 and October 23, 2013 and that it was “was reasonable that [the General Manager] did not understand that he was addressing a human rights complaint.” As such, the deficient response of the employer was not found to amount to an independent violation of the Code.

Thoughts and Rambles

As I sit at home, I find myself missing my barber. Maybe you feel this way too? Every so often, as I look in the mirror, I think to myself “I can’t take it anymore” and consider searching out one of the more adventurous and steady handed members of my family for help. Then I think of a Facebook post I saw from my local barbershop with this advice: DON’T!

Our barbers are salivating at the thought of all the sheep shearing they’ll get to do once it’s safe for us to reopen. Don’t deny them that satisfaction!

I’m trying to follow that advice.

What’s this have to do with this post and this case? When you need a haircut, you go to a barber. When you’re not feeling well, you go to a medical professional. When you’ve got a toothache, you go to a dentist. When you’ve got a leaky roof, you call a roofer…. etcetera

That goes for investigations in certain cases.

Notwithstanding that I am a workplace investigator, I do not ascribe to the view that every investigation should be farmed out to a third party investigator. Leaving aside the costs involved, a third party investigator may be going “over the top” in a lot of cases where an investigation is required.  That being said, employers need to honestly assess the situation and their own competence and reach out for outside help if they don’t have the experience or qualifications to conduct the investigation competently and fairly.  They have to be alive to the legal issues and their obligations, but they also must know “how” to carry out and manage the investigation.  This goes for allegations under the Code as well as claims of workplace harassment or violence under the Occupational Health and Safety Act.

As I was told a long time ago by a very senior lawyer and mentor “stick to your knitting”. Do what you do well and ask for help from people when you’re “out of your depth”.  Everyone sleeps more soundly that way.