How to Conduct a (Bad) Workplace Investigation

If you are an employer, you have a legal duty to take allegations of workplace harassment seriously. You must investigate all allegations in a timely and effective manner, and you must take appropriate action once the investigation in complete. Importantly, an investigation is not a mere formality. In order to hold up in court, an investigation must be fair and thorough. There can be harsh legal consequences for employers who cut corners—as the Ontario Court of Appeal made clear in Doyle v Zochem Inc, 2017 ONCA 130 (“Doyle”).

The employer, Zochem, operates a chemical plant in Brampton, Ontario. The employee, Ms. Doyle, was the only woman among the plant’s fifty employees. Ms. Doyle worked for Zochem for nine years. At the time of her termination, she was a senior manager responsible for health and safety.

Ms. Doyle experienced on-going sexual harassment by another senior manager, Mr. Rogers. For example, made comments about Ms. Doyle’s breasts and genitals, asked questions about her sexual history, and described using heavy machinery to aid in penetrating her sexually. Mr. Rogers also kept photographs of nearly-nude women in his office, and he frequently pretended to photograph Ms. Doyle’s breasts.

Ms. Doyle’s many complaints were largely ignored. Her last complaint was investigated by the assistant plant manager, Ms. Wrench, after Ms. Wrench had recommended that Ms. Doyle’s employment be terminated. Ms. Doyle brought a claim for wrongful dismissal and was ultimately awarded 1) ten months' pay in lieu of reasonable notice, 2) $60,000 in punitive damages, and 3) $25,000 in human rights damages, as well as pre-judgment interest.

Significantly, the Court drew attention to the deficient nature of Ms. Wrench’s investigation. In particular, the Court noted that Ms. Wrench:

• recruited employees to "dig up dirt" on Ms. Doyle in order to justify termination;

• created performance reviews to support the pre-existing decision to terminate;

• had no training or experience in workplace investigations, or in human rights law;

• did not interview Ms. Doyle or invite her to provide a written statement; and

Moreover, the Court noted that the investigation lasted only one day.

Punitive damages are rarely awarded. Unlike ordinary damages, they are intended to punish the defendant, not to compensate the plaintiff. Punitive damages are awarded only when the defendant’s conduct was so malicious as to warrant punishment. It has long been established that terminating an employee in bad faith warrants an award of punitive damages. However, the Court in Doyle confirmed that investigating an allegation of workplace harassment in bad faith can also call for punitive damages.

The takeaway from Doyle is that workplace investigations are being held to progressively higher standards. Employers are not expected or required to hire an outside investigator in every case, but they are required to ensure that the investigation is fair, and that the investigator has appropriate training or experience. Botching an investigation—even unknowingly—can be very costly in the end.