Stuart Rudner discussed workplace investigations at the HRPA Barrie Chapter.

1. HRPA – Barrie Chapter
November 24, 2015
Presented by
Stuart E. Rudner
“The Ghomeshi Scenario”:
Responding to
Allegations of Harassment

2. Headlines You Don’t Want
“CBC management ignored warnings in Jian
Ghomeshi affair”
“Bungled Jian Ghomeshi investigation
playing out at taxpayers’ expense”
“Jian Ghomeshi’s quiet accomplice: Why the
CBC must be investigated, too”
“Two CBC execs on leave of absence
after Jian Ghomeshi investigation”
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3. Risks
 Bad PR
 Legal liability
– Wrongful dismissal
– Punitive damages
– Moral damages
– Infliction of emotional distress
 Amounts are increasing
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4. Responding to allegations
 Do not ignore
 Act expeditiously
 Check policy
– Requirements for investigation / timing /
people involved
 Review policy now to ensure not overly
restrictive
 Consider other obligations (i.e. union)
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5. Responding to allegations
 Notify respondent
– Warn re interference
 Be mindful of complainant and accused
– Ensure safe work environment
– Consider referral to EAP
– Interim suspension / transfer?
 Do not promise lack of repercussion
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6. Hallmarks of Good
Investigation
 Unbiased
 Thorough
 Timely
 Well documented
 Defensible conclusions
 Recommendations & Action items
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7. Conducting investigation
 Internal vs external
– Seriousness of allegations
– Sensitivity of issues
– Appearance of bias
– Expertise
– Availability
– Cost
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8. Conducting investigation
 Obtain all necessary information from
complainant
 Do not begin with a conclusion or
investigate for purpose of proving
misconduct
 Do not make promises of
confidentiality you cannot keep
– But promise reasonable efforts
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9. Witnesses
 Consider order
 Do not promise confidentiality
– Require that they do
 Warn against interference
 No reprisals for participation
 Inquire about other witnesses
 Obtain documents
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10. Witnesses
 Provide respondent meaningful
opportunity to respond to allegations
 Follow up if there is new information
(can interview same person twice)
– confront
 Return to complainant with new
information, contradictory evidence
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11. Preparing a Report
 Background /
allegations
 Mandate
 Process
 Documents
 Witnesses
 Policies
 Evidence
 Conclusions
 Recommendation
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12. Report
 Assess credibility
 Compare to evidence
 What has “air of reality”?
 Don’t cop out – reach a conclusion
 Ensure it is supportable
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13. After the Report
 Advise complainant and respondent of
outcome
 Take action based upon findings
– Discipline
– Mediation
– Training / counselling / courses
– Apology
– New policies / training for others
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The Importance of the
Investigation
 Investigate first
 Ensure fairness, objectivity,
thoroughness
 Give opportunity to respond
 Often, employee response is critical
factor in determining appropriate
discipline

15. Vernon v. British Columbia
 30 year employee accused of
bullying/harassment
 Known as “The Little General”
 Offensive language, racial and other
inappropriate comments

16.  Investigators:
– Pre-judged
– Attacked accused and those who
supported her
– Misled decision-makers in report
 Result
– 18 months’ notice
– $35k in “The Damages Formerly Known
as Wallace”
– $50k punitive damages
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17. 17
Dismissals
 2 types: With cause or without
cause
 If with cause, no further
obligation to employee
 Otherwise, need to assess
employee’s entitlements to
notice/pay in lieu/severance
 No “near cause”

18.  “Capital Punishment of Employment Law”
 Based on McKinley v. B.C. Tel., 2001, Employer must prove:
1. that the alleged misconduct took place,
and
2. that the nature or degree of misconduct warranted
dismissal, bearing in mind all relevant
circumstances
 Proportionality is guiding principle – “punishment must fit
the crime” bearing in mind all circumstances
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19. The Contextual Approach
 Employer must consider all circumstances,
not just alleged misconduct
– Length of service
– Disciplinary history
– Nature of position
– Response to allegation
– Mitigating factors
 Same set of facts can yield different results
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20. Off-Duty Conduct
 Generally, what you do on your time is your
business
 Unless
– The conduct renders the employee unable to perform
his duties satisfactorily.
– The conduct interferes with the efficient management
of the operation or workforce.
– The conduct leads to a refusal or reluctance of other
employees to work with him.
– The conduct harms the general reputation of the
Employer, its product or its employees.

21. Implementing Policies
A. Have a policy
B. Use clear and unambiguous language
C. Keep the policy up to date
D. Publicize the policy
E. Make employees aware of concerns
F. Ensure supervisors and managers are
aware of the policy and how to monitor
G. Monitor behaviour
H. Discipline violators

22. 22
Without Just Cause
 Notice of Dismissal or Pay in Lieu
 Two sources of entitlement
– Employment Standards Act /
Canada Labour Code
– Common Law
 Can contract out of common law

23. 23
Common Law: The Length of
Notice
 Requirement: “reasonable” notice
of dismissal
 The Bardal Factors
1) Length of service
2) Age
3) Position / Character of Employment
4) Availability of Similar Employment

24. What is “reasonable”?
 No “rule of thumb” or direct 1:1
relationship between years of service
and months of reasonable notice
 Beware the short-term employee
 Other factors
– Inducement
– Time of year
– dishonesty
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25. The Changing Times
 End of mandatory retirement, people
working longer  Wrongful dismissal
claims by workers in 70s and 80s!
 Recent decision:
I do not think there is a place in this social
reality for an automatic presumption that
persons should or would naturally retire on
reaching senior age.
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26. The Changing Times
Di Tomaso v. Crown Metal
Packaging Canada LP:
There is recent jurisprudence
suggesting that, if anything,
(position/character of employment)
is today a factor of declining relative
importance.
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27. Obligations During Notice
Period
 Default: all compensation
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– Base salary /
wage
– Commission
– Bonus
– Medical /
dental
– LTD / life
– Car allowance
– etc

28. 28
Without Cause: Options
 Working notice
– must allow opportunity to
look for new employment
 Salary & benefit continuance
– With or without clawback
 Lump-sum
 Combination

29. Can you package someone out
instead of investigating
misconduct?
 Recent decision suggests employers may not be
entitled to terminate without cause in order to 'side-
step' the duty to investigate
 Ontario Superior Court of Justice:
“it is a triable issue whether the employer adopted
the procedure intentionally to side step the criteria
for fair treatment of an employee against whom
cause is alleged”
 When an employee is alleged to have engaged in
misconduct, employers are expected to investigate
before taking disciplinary action
 Law is unclear at this point

30. Employment Agreements
 Use them!
 Do it properly
– Before there’s already an agreement
– With consideration
– Explained and understood
– Independent legal advice

31. Termination Clauses
 Enforceable if done properly
 Avoid uncertainty of “reasonable
notice” & reduce dismissal costs
 Use clear language
 Don’t go below employment
standards
 Address probation period
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Stuart E. Rudner
srudner@rudnermacdonald.com
416.640.6402 or 905.530.2484
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