In. Erin McKenzie v Orkestra SCS Inc. ( 2023 Cali 13891 ( On LRB ) Roslyn McGilvery, Vice‑Chair, had an opportunity to comment on the following section of the Ontario Occupational Health & Safety Act:
Order for workplace harassment investigation
55.3 (1) 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.
In this case there was a complaint by the the CFO / General Counsel that she was being harassed by the CEO. The Company hired an HR Consultant to conduct an investigation but the CFO objected saying that the HR Consultant had a conflict of interest. At the same time the CFO filed a complaint with the Ministry of Labour and a Ministry Inspector was appointed .
Before the Inspector could even start the investigation, the HR Consultant withdrew from the assignment. The Company thereafter appointed a lawyer to conduct the investigation.
The CFO felt that this lawyer investigator had insufficient investigation experience so she refused to participate in the investigation and appealed to the OLRB to appoint a new investigator .
The OLRB refused to do so on a number of grounds :
1 .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.
2. 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 this particular case it was the Complainant who sought an order requiring the Employer to hire “an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector.”
But it can also be the target of the investigation ( the alleged harasser ) who can also make this application.
However it seems that it is highly problematic for anyone to contest the qualification of the investigator until the perhaps unqualified investigator completes the investigation and their report. Presumably whoever does not like the outcome of the report ( as there is generally at least one disappointed party) could then ask the Ministry of Labour to force the Employer to do the whole investigation a second time.
This seems to me to be a real bad idea.
First, we should assess at the beginning of the process if the investigator is “an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector.”
If this was a hearing before the OLRB and one of the parties felt that the Vice Chair had a conflict of interest ( in other words was not an impartial person ) that party would be required to make the application to recuse at the earliest possible time.
It would be absurd to say ” I will only complain about the conflict of interest if I lose.”
This is like Trump saying ahead of the election that he will only accept the legitimacy of the vote if he wins.
Second, workplace investigations can be extremely damaging to many workplaces, not only to the complainant and the target but also to co-workers.
These investigations can go on for months or years and be very costly in terms of money, time and morale.
To go through this process twice would be unbearable.
Third, the new second investigator would presumably interview many of the same witnesses. What if there were differences between the two interview answers? Is the new investigator permitted to rely on this differences in assessing the witness’s credibility? What if relevant witnesses are no longer available or refused to participate a second time?
Fourth, Section 53.3 speaks of. “knowledge, experience or qualifications” of the investigator.
It does not deal with how the investigator actually handled a particular investigation. An investigator who was well qualified could still make an error in their investigation . Does this mean the Ministry of Labour Inspector and/ or the OLRB is to act as if they were conducting a judicial review of the investigation?
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 Can a without-cause dismissal be recharacterized later as for cause when the material circumstances were known to the employer before the dismissal?
 The answer is no.
I wish all judgements could so clear.
The relevant factors in this case were as follows:
1. The Defendants’ Board of Directors in their resolution terminating the Plaintiff ( who was the Executive Director ) said the termination was without cause.
2. The termination letter said it was without cause.
3. They paid him his minimum entitlement under the ESA which would not be payable if the was terminated was for just cause.
4. They never alleged any misconduct.
But here is the real backstory.
* A bunch of employees filed a harassment complaint against the Plaintiff .
* The Defendant hired an indépendant investigator to conduct a harassment investigation.
*The investigator did its job, interviewed the relevant parties and issued an interim report which said that the Plaintiff did not harass anyone.
* Having knowledge of this report, but apparently not relying on the report, the Board then made the decision to terminate and not allege cause .
* When the final report came out ( after the termination ) it confirmed the investigator’s conclusion that no harassment had occurred.
*The Defendant offered no evidence about why they decided to terminate the employment of the Plaintiff.
* The Defendant did not acquire any new information after the dismissal that they didn’t already have before the dismissal .
* In other words, they just thought they could change their mind, like changing your clothes.
* One of the the Board members was a lawyer but he stated that he did not know employment law. He advised the Board to hire an employment lawyer before the termination. The Board did eventually hire an employment lawyer( who presumably told them they did have just cause) but only after the actual termination.
This reminds me of when I practised as an advocate. Every single time one of my plaintiff clients was under investigation for alleged harassment , the result was always a dismissal. If the investigation found that the plaintiff was at fault the employer alleged just cause. If the finding of the investigator was no harassment the employer would say that they lost confidence in the employee and they would terminate without just cause.