Decision in workplace harassment case changes approach to internal investigations

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Ontario employers have just received an important warning about workplace harassment investigations. They should take it seriously.

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In Alyssa Gassi v. The Corporation of the County of Lambton, the Ontario Labour Relations Board, for the first time, substantively considered what it means under the Occupational Health and Safety Act (OHSA) to conduct an investigation that is “appropriate in the circumstances.” That is the statutory standard by which harassment investigations are judged.

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The decision does not create a rigid investigative checklist. That is good news for employers. It does, however, make one thing clear: an employer cannot simply investigate a harassment complaint, reach a conclusion and assume the matter is finished.

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The process itself can be challenged.

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Section 32.0.7 of the OHSA requires an employer to ensure that an investigation into an incident or complaint of workplace harassment is appropriate in the circumstances. It also requires the employer to advise the complainant and, where applicable, the alleged harasser in writing of the investigation’s results and any corrective action or to be taken.

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The Lambton case shows what that obligation means in practice.

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The employee, a municipal prosecutor, made a workplace harassment complaint identifying several people and alleging a range of inappropriate conduct. The County assigned a Senior Labour Relations Consultant to investigate. He had investigation training, met with the complainant for approximately three hours and subsequently interviewed two County employees.

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He concluded that the complaint was not substantiated.

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On the surface, this appeared to be a prompt, professionally handled investigation. The Board itself recognized that the County took the complaint seriously, acted promptly, used an investigator with relevant training and knowledge, maintained confidentiality and obtained an understanding of the complaint.

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The problem was what happened next.

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The investigator had told the complainant she would have an opportunity to respond to information gathered during the investigation. After interviewing the two County employees, however, he concluded the investigation without giving her that opportunity.

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He also did not adequately explain why he had interviewed those individuals but not others identified in the complaint.

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The OLRB found that the investigation was therefore not appropriate in the circumstances.

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That finding should change how employers approach harassment complaints.

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Importantly, the Board did not turn every workplace investigation into a miniature trial. It expressly recognized that an appropriate investigation does not necessarily require investigating every allegation or interviewing every person named in a complaint. The investigator retains discretion to determine the appropriate scope of the investigation.

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Employers should not read Lambton as requiring an external investigator, dozens of interviews or a report hundreds of pages long

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What it requires is explainable judgment.

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An investigator should be able to answer basic questions: Why was this witness interviewed? Why was another not? Why was one allegation pursued while another was excluded? What evidence was material? Did either party have an opportunity to respond to information that could materially affect the conclusion?

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Those questions should be answered in the investigative file.

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If the investigator makes those decisions intelligently, proportionately and documents the reasons, the employer will be in a much stronger position if the investigation is later challenged.

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If the decisions appear arbitrary, the fact that the investigator may ultimately have reached the correct conclusion will not save the employer.

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That is the most important point in Lambton.

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The Board said the issue was not whether it would have reached the same conclusion as the investigator. The issue was whether the investigation was fairly and appropriately undertaken in a manner that would permit the employer to determine whether workplace harassment had occurred.

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In other words, employers increasingly have to defend not only what they decided, but how they reached the decision.

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What should employers do?

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First, choose the investigator carefully.

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An internal investigator is entirely permissible and almost invariably preferable. Internal investigators understand the workplace, its policies and its personnel. But the investigator must be sufficiently independent and should understand the OHSA, the employer’s harassment policy and the basic principles of workplace investigations. An external investigator should be considered where independence, conflicts, complexity or expertise make that appropriate.

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Second, define the allegations and scope.

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A complaint may contain 10 allegations. That does not mean all 10 require a full investigation. The investigator can determine that some matters fall outside the scope or do not require further investigation.

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But that decision should be made consciously and recorded.

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Third, identify and assess material witnesses.

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There is no requirement to interview everyone named in a complaint. But if an apparently important witness is not interviewed, the investigator should be able to explain why.

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“The investigator did not think it was necessary” is unlikely to be enough if the decision is later challenged. Lambton demonstrates the importance of showing the reasoning behind the investigative scope.

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Fourth, give the parties a meaningful opportunity to respond to material evidence.

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This may be the most important practical lesson from Lambton.

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If the investigator obtains evidence that contradicts the complainant’s account, raises a significant new issue or could materially affect the ultimate finding, the affected party should ordinarily have an opportunity to address it before the investigation is concluded.

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That does not mean endless rounds of interviews. It means allowing a meaningful response to material evidence.

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The same principle should apply to the respondent where new evidence could materially affect the findings against them.

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Fifth, document investigative judgment.

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The file should demonstrate the reasoning process, not merely contain interview notes and a conclusion.

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Record why significant witnesses were interviewed, why others were not, why particular allegations were pursued or excluded, what evidence was considered material and how conflicting evidence was assessed.

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The objective is not a bigger file. It is a defensible one.

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Sixth, keep the investigation proportionate.

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There is an equal danger in turning every workplace complaint into a six-month legal proceeding. Investigations should be proportionate to the seriousness of the allegations, the number of people involved, the complexity of the evidence and the consequences of the findings.

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The OHSA does not require an external specialist in many cases. An inspector can, however, order an employer to have an investigation conducted by an impartial person with specified knowledge, experience or qualifications, at the employer’s expense.

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Finally, keep harassment investigations separate from employment decisions, while documenting both carefully.

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Lambton is particularly instructive because the Board rejected the employee’s separate claim that her termination was retaliation for making the harassment complaint. The County was able to establish that the termination resulted from other workplace conduct and not the complaint.

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That is an important distinction. If legitimate performance or misconduct concerns arise during an investigation, employers should document them immediately, identify the evidence supporting them and ensure that the resulting employment decision is consistent with normal workplace practices.

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I’ve often heard complaints raised by other employees about the complainant, issues the employer had not previously been unaware of. Although disciplining them may look suspicious, it can nevertheless proceed if justified.

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The answer to Lambton is therefore not paralysis.

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It is discipline.

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Investigate promptly. Investigate objectively. Investigate proportionately. Give people a meaningful opportunity to address material evidence. Most importantly, document why significant investigative decisions were made.

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The days when an employer could treat a harassment investigation as a basic fact-finding exercise are disappearing.

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But employers should not respond by creating a miniature courtroom every time an employee complains.

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The better approach is to recognize what the OLRB actually said: employers retain considerable discretion over how investigations are conducted, but that discretion must be exercised reasonably, fairly and in a manner that can withstand scrutiny.

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That is both the burden and the opportunity in the Lambton decision.

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The law is demanding more process. Employers should make sure that process produces better investigations, not simply bigger files.

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Howard Levitt is senior partner of Levitt LLP, leading his teams of labour lawyers in Ontario, Alberta and British Columbia. Howard has appeared in more Supreme Court employment law cases and provincial appeals than any lawyer in Canadian history. A bestselling author, he discusses current workplace issues on the podcast, At Work with Howard Levitt.

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