Case In Point
Employer Investigations Held to Standard of Reasonableness, not Correctness or Perfection
Date: September 1, 2015
In a recent decision, Zambito v. LIUNA Local 183, the Human Rights Tribunal of Ontario (“Tribunal”) provided some useful guidance on internal employer investigations. It reiterated that while it is extremely important for employers to respond seriously and promptly to all allegations of discrimination and harassment, they will be not be held to a standard of correctness or perfection in their response. Rather, the standard is one of reasonableness.
The decision is also of some assistance when dealing with a complainant who is insisting on a particular remedy, as the Tribunal makes clear that an employer may determine the appropriate outcome, provided that it is reasonable.
In this case, the applicant alleged discrimination principally on the basis that the employer failed to investigate his complaint that he had been subjected to harassment as the result of nationality and family.
The Tribunal applied the following three-part test to determine whether the employer’s response to the complaint was reasonable:
- 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?;
- 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
- 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?
(per Laskowska v. Marineland at para. 59)
In this case, the Tribunal found that all three elements of the test had been satisfied. First, it was clear that the employer was aware of the alleged harassment. Second, the investigator’s testimony with respect to the post-complaint conduct was reasonable, logical and coherent. Third, by meeting individually with the applicant and the alleged harasser to discuss the investigation report, the respondent had provided a satisfactory resolution to the complaint. There was no obligation for the respondent to bring both parties together and require the harasser to apologize or to shake hands. Reviewing the report with the parties was sufficient.
