Unveiling the Power of Independent Workplace Investigations: Bobsleigh Canada Skeleton Case
Introduction:
The recent independent investigation into harassment allegations made by three-time Olympic gold medallist Kaillie Humphries has concluded that there was “no evidence that any of the allegations constituted harassment.” Bobsleigh Canada Skeleton (“BCS”) released the findings after an initial investigation found insufficient evidence to take action, prompting a re-opening of the case by the Sports Dispute Resolution Centre of Canada.
The case highlights the significance of conducting thorough independent investigations in workplace matters. In this blog post, we’ll delve into the importance of independent investigations, the potential pitfalls of internal investigations, and the value of seeking expert guidance from Neil Hain Dispute Resolution in conducting independent third-party workplace investigations.
The Power of Thorough Independent Investigations:
In the 1987 case of Robichaud v. The Queen (Treasury Board), [1987] 2 SCR 84 (Robichaud), the Supreme Court of Canada ruled that employers can be held vicariously responsible for harassment committed by their employees, even if the employer did not know about it. This case is pertinent to workplace investigations, see Robichaud at para. 19: “…For example, an employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps.”
The Canadian Human Rights Commission (CHRC) is an independent body that is responsible for enforcing the Canadian Human Rights Act, RSC 1985, c H-6. The CHRC may consider a workplace investigation report conducted by or at the request of an employer when investigating a human rights complaint.
The Canadian Human Rights Tribunal (CHRT) is an independent judicial body that adjudicates human rights complaints referred to it by the CHRC. The CHRT has the power to order remedies, such as compensation, reinstatement, and changes to policies and practices, to address human rights violations
Occupational Health and Safety Act, RSO 1990, c O.1
- 32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that,
- (a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
In Chandran v. National Bank, 2011 ONSC 777 (CanLII). The National Bank found Chandran guilty of misconduct without investigating or giving him a chance to defend himself. The court found that this was a fundamental breach of Chandran’s employment contract, and awarded him 14 months’ salary in damages.
- Impartiality and Credibility: Independent investigations ensure impartiality, eliminating any concerns about conflicts of interest. The credibility of the investigation process is enhanced, and stakeholders have increased confidence in the findings.
- Expertise and In-depth Analysis: Independent investigators possess expert knowledge and skills to conduct thorough analyses. Their unbiased approach allows for a comprehensive examination of the facts, including findings of credibility, leading to informed conclusions.
- Protecting Reputations: A well-conducted independent investigation protects the reputation of both the organization and individuals involved. Demonstrating a commitment to fairness fosters trust among stakeholders.
- Ensuring a Safe Environment: Prioritizing independent investigations underscores an organization’s commitment to creating a safe and respectful work environment for all employees.
Pitfalls of Relying on Internal Investigations:
Disotell v. Kraft Canada Inc., 2010 ONSC 3793 (CanLII) (Kraft)
The Ontario Superior Court of Justice assessed if an employer’s inadequate investigation into an employee’s harassment complaint amounted to a situation of constructive dismissal. “See Kraft at para 95. “The H.R. investigation, in my opinion, demonstrates the inherent difficulty of in-house investigations between employees of longstanding relationships, especially when there are conflicting reports”, and at para 120, “My conclusion on the evidence is that Kraft was not conducting a serious investigation.”
In Elgert v. Home Hardware Stores Limited, 2011 ABCA 112 (CanLII) the court found that the internal investigation was not conducted properly see Elgert at 16, “Kirck had no training for dealing with sexual harassment complaints. In his 26 years with Home Hardware, he had limited experience with four or five previous sexual harassment complaints and had never conducted an investigation.” Furthermore, the Vice President of Human Resources carried out the investigation was high school friends with the boss of Home Hardware who’s daughter had made allegations of sexual harassment against the plaintiff/employee allegedly for moving her away from her boyfriend for poor performance, see Elgert at para. 9. The employee was awarded significant damages.
Risks of carrying out poor internal investigations are sometimes not fatal if the defendant can prove their case at trial, but do you want to take this risk? See Leach v. Canadian Blood Services, 2001 ABQB 54 (CanLII)
- Perceived Bias and Trust Issues: Internal investigations may be perceived as biased, leading to doubts about their objectivity. Employees may fear retaliation or question the fairness of the process, eroding trust in the organization.
- Limited Expertise and Resources: Internal investigators may lack the expertise required to handle complex cases effectively. This can result in incomplete or inadequate investigations, leaving crucial issues unresolved.
- Potential Conflicts of Interest: Internal investigators may face pressure to protect the organization’s interests, potentially compromising the investigation’s independence and integrity.
- Impacts on Employee Morale: An ineffective internal investigation can negatively impact employee morale and create a toxic work environment.
Seek Guidance from Neil Hain Dispute Resolution for Independent Third-Party Workplace Investigations
To navigate complex workplace matters and ensure a fair and safe environment, organizations can benefit from expert guidance in conducting independent third-party workplace investigations. As a senior lawyer with decades of experience in dispute resolution and workplace investigations, Neil Hain can provide invaluable insights and support to your organization. By entrusting investigations to an independent professional like Neil Hain, organizations demonstrate their commitment to transparency and fairness, fostering a positive work environment.
Conclusion:
The independent investigation into harassment allegations against Bobsleigh Canada Skeleton has shed light on the importance of conducting thorough and unbiased investigations in workplace matters. Independent investigations ensure impartiality, credibility, and expertise in examining complex cases.
While internal investigations may carry the risk of perceived bias and limitations in expertise and resources, seeking guidance from third party experts like Neil Hain can enhance the investigation process and protect the well-being of employees. By prioritizing a safe and respectful work environment, organizations can maintain employee confidence and organizational integrity. Reach out to Neil Hain today to take the first step towards fostering a positive and inclusive work environment that prioritizes the well-being of all employees.
