Recently, a federal court judge discarded a workplace harassment investigation due to an improper, impartial investigation into alleged workplace harassment. This blog post will discuss the importance in ensuring that you conduct an appropriate investigation into any complaints regarding workplace harassment and bullying issues in order to avoid an unfavourable outcome.
The decision was Bairaj Shoan and Attorney General of Canada (2016 FC 1003).
In this particular instance, a Commissioner of the Canadian Radio-Television and Telecommunications Commission (CRTC) was being investigated on allegations of workplace harassment due to e-mail exchanges with a colleague. The investigation ended up being less about finding the truth and more of a personal vendetta against the Commissioner, who was ultimately terminated based on these allegations and the outcome of the investigation.
There were major investigation issues from the start. The investigation went outside of the scope of the original complaint and the individual investigating the allegations “failed to critically and impartially analyze some, if not most, of the impugned emails, with the result that her tainted analysis supports the finding that she was close-minded.”
The judge found that due to a lack of procedural fairness and natural justice within the investigation process, it could not be considered as evidence against the alleged harasser and found in favour of the Commissioner who had been accused.
It is important to take away several key factors from this decision:
- When conducting an investigation into any alleged harassment or bullying, ensure that the individual assigned to investigate is impartial. If possible, select an individual outside of the department or hire an external investigator.
- When someone is participating in the investigation as a witness, do not allow them to also render the final decision regarding the alleged harasser. If the manager that witnessed the alleged harassment is interviewed as a witness, they should then not be allowed to help decide the punishment or outcome of the investigation as well as their view is clearly biased.
- Look at the situation as a whole. You must not only review documentation but interview all witnesses and both the alleged harasser and the complainant. Failure to include the alleged harasser in the investigation has historically resulted in a dismissal being overturned due to a lack of a proper investigation.
- Do not embellish your conclusions. When you have all of the evidence available to you, present the evidence as it is and come to a reasonable conclusion.
If you have been terminated as a result of an improper investigation into alleged harassment and bullying in the workplace, contact Monkhouse Law today to determine if you have a case for wrongful dismissal.
If you need assistance in conducting a workplace investigation into alleged harassment or bullying by your staff in the workplace, Monkhouse Law can assist you in organizing the proper procedures and tools to complete and adequate and fair investigation.