Can a worker complaining of workplace harassment who pre-emptively refuses to participate in the resulting investigation because she believes the investigator is unsuitable, ask the Ontario Labour Relations Board to appoint an investigator of the Board’s choosing instead?
In Erin MacKenzie v Orkestra SCS Inc., 2023 CanLII 13891 (ON LRB), the OLRB refused to appoint its own investigator.
Facts
Erin MacKenzie was the General Counsel and Chief Financial Officer of the Employer. On July 8, 2021, the Employer gave Ms. MacKenzie six months’ notice that it was terminating her employment. Thereafter, on August 13, 2021, Ms. MacKenzie raised a formal harassment complaint in the workplace regarding the company’s CEO. Prior to that she had discussed “many of the issues” that she was having with the CEO in an attempt to resolve them but never formally complained.
The Employer appointed an investigator to address Ms. MacKenzie’s harassment complaint. However, Ms. MacKenzie complained that the First Investigator was not qualified and had a conflict of interest because she had a contract to provide human resources services to the Employer and, therefore, Ms. MacKenzie believed she had a financial interest to please the Employer. Ms. MacKenzie made additional allegations against the First Investigator, including that Ms. MacKenzie previously had personal conversations with the First Investigator regarding her experiences, which, in Ms. MacKenzie’s view, made it inappropriate for her to now investigate the complaint. Ms. MacKenzie also asserts that the First Investigator reported to Ms. MacKenzie. Further, Ms. MacKenzie complains that the CEO is the one who appointed the First Investigator and continued to talk to the First Investigator about the case.
Ms. MacKenzie complained to the Ministry of Labour, Immigration, Training and Skills Development regarding the appointment of the First Investigator.
In the meantime, the First Investigator was removed (or removed herself) from the file and the Employer appointed another investigator. Ms. MacKenzie took issue with the Second Investigator as well. She claims that the First Investigator and Second Investigator had a working relationship. She also complained that the Second Investigator was a second-year lawyer who had no demonstrated experience as a workplace investigator. Therefore, when the Second Investigator contacted Ms. MacKenzie by email on November 10, 2021, Ms. MacKenzie asked for her qualifications to conduct the investigation in the first place.
Apparently, the Second Investigator passed this information onto the CEO and the CEO responded to Ms. MacKenzie that it was the Employer’s right to choose the investigator and directed her to cooperate. Ms. MacKenzie refused to do so and again asked the Second Investigator for her credentials to which the CEO again encouraged her to participate in the investigation. Ms. MacKenzie refused to comply with the Second Investigator’s investigation. Ms. MacKenzie says that she felt threatened by the CEO directing her to participate in the Second Investigator’s investigation and felt that it was not his place to direct her to do so.
Ultimately, the Second Investigator sent Ms. MacKenzie the following email asserting that there was no basis for her continued refusal to participate in the investigation:
Your refusal to participate in the workplace investigation without good reason is duly noted on record.
My client has advised that they emailed you highlighting my experience conducting workplace investigations, so, respectfully, it looks like your response to me below is a sham and a means to circumvent the investigation process.
Your response makes it evident that while you suggest that this investigation is important to you, you simply do not want to cooperate in moving forward.
Your refusal will be conveyed to Orkestra.
Ms. MacKenzie maintains that this communication shows bias and unprofessionalism. Ms. MacKenzie says that she tried to get the MOL inspector who was dealing with her complaint respecting the First Investigator to also consider her concerns regarding the Second Investigator. Ms. MacKenzie says that the Inspector told her that he was only dealing with the allegations respecting the First Investigator and that she ought to raise her concerns regarding the Second Investigator directly with the Ontario Labour Relations Board. The Inspector did not issue any orders respecting the First Investigator. In his Field Visit Report, the Inspector stated the following:
The complaint alleges that the investigator selected by the employer to investigate complaints of workplace harassment against the employer would not be able to conduct an impartial investigation on account that the investigator is already under contract with the employer to implement HR policies and procedures and the complainant believes that the investigator has an existing financial interest.
This inspector was provided with copies of correspondence between the workplace parties and with a written summary of the investigator's credentials and this information was shared the MLTSD's Workplace Violence and Harassment Provincial Specialist for consultation.
Based on the information received, it has been decided that the Investigator selected by the employer can conduct an investigation into this complaint.
Ms. MacKenzie pleaded that the Employer has demonstrated an inability to appoint or instruct an investigator. Therefore, she asks the Board to “appoint an investigator who has the necessary training and experience to meet the minimum requirements of the statute.”
The Law
Part III.0.1 of Ontario’s Occupational Health and Safety Act imposes a number of responsibilities concerning workplace violence and harassment on Ontario’s employers, among them the obligation to ensure that, “an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances.” (OHSA paragraph 32.0.7(1)(a).)
Section 55.3 of OHSA provides that, “An inspector may in writing order an employer to cause an investigation described in clause 32.0.7 (1) (a) to be conducted, at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person.”
Decision of the Ontario Labour Relations Board
In finding that Ms. MacKenzie did not have the right to ask the Board to appoint an alternate investigator, before the investigation had been completed, Vice-Chair Roslyn McGilvery reasoned as follows:
21. In Wal-Mart Canada Logistics ULC, 2020 CanLII 2070 (ON LRB) (January 10, 2020), the Board considered whether an MOL inspector was entitled to an unredacted copy of an investigator’s report respecting a workplace harassment complaint. In finding that the inspector was so entitled, the Board made a number of observations about employers’ duties and obligations respecting workplace harassment investigations that are instructive. Specifically, the Board confirmed that an employer’s obligations are procedural in nature. At paragraph 24, the Board had this to say:
24… [T]he Act does not clarify what the phrase “appropriate in the circumstances” means. Nor does the Act prescribe any particular outcome of, or set out any criteria that apply to, a workplace harassment investigation.The Board acknowledged that the duties of employers that are set out at section 25 of the Act (including the duty under subsection 25(2)(h) to “take every precaution reasonable in the circumstances for the protection of a worker”) do not expressly apply to workplace harassment complaints. However, it noted that the duty under section 32.07 of the Act to perform an investigation that is “appropriate in the circumstances” was one of the measures an employer must ensure is undertaken “[t]o protect workers from workplace harassment.”22. It is not clear to me 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. In any event, there is no dispute that the Employer ultimately relented to Ms. MacKenzie’s demands respecting the First Investigator, as it replaced her with the Second Investigator. Therefore, there was no “tangible and concrete” dispute between the Employer and Ms. MacKenzie at that point in time. As such, the issues surrounding the First Investigator were rendered moot once the Employer relented to Ms. MacKenzie’s objections to the First Investigator and appointed the Second Investigator.
23. However, Ms. MacKenzie also raised concerns about the Second Investigator, primarily that because she was a second-year lawyer she was not qualified to conduct the investigation.
24. As the Employer points out, the Act does not require individuals who conduct workplace harassment investigations under the Act to have any particular qualifications. Further, the Act does not necessarily mandate the use of third-party investigators. 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. Although it does not have the force of law, I note that the MOL’s informational document entitled, “Workplace Violence and Harassment: Understanding the Law,” specifically acknowledges that there are no specific qualifications necessary in order for an individual to be appointed to conduct a workplace investigation under the Act. Notably, that document specifically lists lawyers as individuals who could carry out such an investigation. Therefore, I do not find that Ms. MacKenzie’s concerns with the Second Investigator—a lawyer—were justified. There is nothing in the Act that supports the conclusion that a lawyer, regardless of her year of call, is incapable of conducting an investigation that is “appropriate in the circumstances,” so as to justify a worker’s decision to pre-emptively refuse to cooperate with the lawyer’s investigation. Ms. MacKenzie’s personal belief that a second-year associate is incapable of fulfilling this role is simply her opinion, which has not been borne out in a concrete manner. 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. However, that did not happen since Ms. MacKenzie refused to participate. If that had occurred, Ms. MacKenzie may have been justified in asking the Inspector to appoint “an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person,” in accordance with subsection 55.3(1) of the Act.
25. Further, Ms. MacKenzie’s claim that the Second Investigator—who Ms. MacKenzie has described as practicing as a sole practitioner—has some sort of “working relationship” with the First Investigator, does not on its own disqualify the Second Investigator. Assuming, without deciding, that the First Investigator was not capable of performing an appropriate investigation under the Act for the reasons that Ms. MacKenzie has alleged, there is no basis to similarly impugn the Second Investigator based on some nebulous connection between the two. Again, Ms. MacKenzie ought to have let the investigation run its course in the circumstances and if concrete examples of impropriety emerged, that would have been the appropriate time to file a complaint.
26. Ms. MacKenzie asserts that the Second Investigator’s email (at paragraph 13 above), in reply to Ms. MacKenzie’s repeated requests for her to prove her competence, disqualified the Second Investigator from conducting investigation. I disagree. While the Second Investigator’s comments might have revealed her impatience with the situation, they do not establish an inability to conduct an appropriate investigation. I also disagree with Ms. MacKenzie’s claim that the Second Investigator characterized her harassment complaint as a “sham.” On the face of the email that Ms. MacKenzie has provided, the Second Investigator called Ms. MacKenzie’s ongoing refusal to cooperate in the investigation a sham. I do not find that the Second Investigator’s email exchange with Ms. MacKenzie rendered the Second Investigator incapable of conducting an appropriate investigation. This is particularly so when her words are placed into context, namely that Ms. MacKenzie was directly challenging her competence to perform her job for no justifiable reason.
27. I note that, in the submissions that Ms. MacKenzie filed in response to my request for submissions on mootness, Ms. MacKenzie for the first time speculated that the Second Investigator may have had a conflict of interest because she previously worked at a firm where Ms. MacKenzie’s former counsel worked. This is a bald allegation. Ms. MacKenzie does not set out material facts that support a finding of a conflict of interest, she just speculates that there could have been a conflict of interest. In any event, by her own pleadings, Ms. MacKenzie did not raise this allegedly potential conflict of interest at the time of the Second Investigator’s appointment, and, significantly, she did not include this allegation in her original pleadings. The Board’s Rules of Procedure stipulate that allegations of improper conduct must be pleaded promptly (See: Rule 5.1 of the Board’s Rules of Procedure). It is far too late for Ms. MacKenzie to seek to add this entirely new allegation at this stage.
28. In light of the foregoing, Ms. MacKenzie’s objections to cooperating in the Second Investigator’s investigation were unfounded and/or premature. 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.
29. I also note that Ms. MacKenzie is no longer in the workplace. The mere fact that a worker is no longer present in a workplace after having raised a health and safety complaint does not necessarily mean that the issue that the worker raised has become moot. It may nonetheless be incumbent upon an employer in such a situation to address the safety concern raised if it could affect the health and safety of others who remain the workplace (See: Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Ataw Grievance), [2019] O.G.S.B.A. No. 97 (QL) (June 3, 2019)). Allegations of workplace harassment are serious and ought to be treated as such by employers. In this case, the Employer attempted to investigate Ms. Mackenzie’s allegations. However, she refused to cooperate. Therefore, the instant case does not involve a general failure or refusal of an employer to investigate a harassment complaint. Rather, Ms. MacKenzie is complaining of the fact that the Employer did not appoint an investigator who met her own perceived standards. I have found Ms. MacKenzie’s ongoing refusal to cooperate in the investigation was unfounded. This finding, coupled with the fact that Ms. MacKenzie—the individual who initiated the complaint, who has knowledge of it, and has refused to cooperate—is no longer present in the workplace, leads me to conclude that there remains no health and safety reason to require any further action on the part of the Employer in relation to Ms. MacKenzie’s harassment complaint.
30. Having said that, I also note that in its most recent correspondence, the Employer has advised, for the first time, that it has now completed the investigation into Ms. MacKenzie’s complaint without her input. It reverted to the First Investigator, presumably in light of the fact that she had started to investigate prior to being removed, and since the person who objected to her handling the investigation was not participating. Given that the Employer only reverted to the First Investigator after first giving Ms. MacKenzie an opportunity to participate in an investigation conducted by the Second Investigator, this latest development does not change my conclusion in this case. Ms. MacKenzie’s refusal to cooperate with the Second Investigator in the circumstances is fatal to her ability to establish a prima facie case here. It goes without saying that it remains open to individual workers of the Employer to file any harassment complaints that they may deem fit in the event that they have their own health and safety concerns in this workplace. The Employer remains obligated to take measures to protect such remaining employees from workplace harassment in accordance with section 32.07 of the Act.
31. Given the specific facts that Ms. MacKenzie has pleaded in this case, I see no useful purpose in the Board considering Ms. MacKenzie’s application further. The issues she has raised are either moot and/or they fail to raise a prima facie case for the remedy requested.
Ms. MacKenzie’s application was dismissed.
Commentary
I have been writing about the shortcomings of Ontario’s workplace harassment laws for years. The Board’s reiteration that “an employer’s obligations are procedural in nature” is, by far, the most obvious issue.
To me, what this case demonstrates is that the Board is going to want better evidence before intervening in a workplace investigation. The Board has been clear that obligations are procedural and the law does not guarantee much by way of a substantive outcome.
However, this decision also suggests that where an investigation falls completely off the rails, any of the complainant, respondent, or employer may be able to apply to the OLRB for an order for a redo.
Takeaways for Employers
The key takeaway for employers is that while OHSA requires employers to complete investigations into workplace harassment, how that investigation happens is very much within the employer’s discretion.
Takeaways for Employees
The takeaway for employees is that even though there is a statutory right to make complaint of workplace harassment, and the law affords investigators appointed by the Ministry of Labour the right to appoint workplace investigators, don’t count on the Board to interfere with your employer’s decisions- at least not right away.
Contact Me
Have a workplace harassment issue? Need a policy with respect to workplace harassment? Need someone to conduct an investigation into incidents and complaints of workplace harassment (or just want some guidance and advice on how to do one in-house)? Call me. Email me. Do what works for you.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He is also a part-time professor at Algonquin College teaching Employment Law. He has previously taught Trial Advocacy for Paralegals and Small Claims Court Practice.
--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
No comments:
Post a Comment