At Rubin Thomlinson we deliver a lot of training on conducting workplace investigations and often the discussion turns to the costs of conducting an investigation, whether it be the monetary costs of an external investigation or the time costs of an internal investigation. These costs are typically balanced with the benefits of conducting an effective investigation, such as allowing employees to be heard, demonstrating a commitment to a respective workplace culture by “walking the talk” of policies, clarifying what actually occurred, and implementing targeted outcomes. A recent Human Rights Tribunal decision demonstrates that the short-term financial costs of an external investigation might also be balanced out by long-term financial savings.

In Ahmed v. Magellan Aerospace Corporation (2019 HRTO 794), the applicant, who identified as a member of a visible minority group and as a dual citizen of Bangladesh and Canada, started working for the respondent as a mechanical engineer in 1989. He alleged that he had been subjected to discrimination and harassment for much of his employment, and specifically to different management structures, reporting relationships, and employment opportunities, as well as unfair performance management. The applicant also alleged that he was subject to bullying and harassment that manifested in a variety of unwanted behaviours.

The applicant submitted a written complaint to Human Resources. The respondent retained an external investigator to investigate the complaint, which included allegations of systemic discrimination necessitating a broader assessment. The investigation took eleven months, involved multiple interviews of the applicant as well as past and present employees, and concluded in a verbal report[1] to the respondent and applicant that “confirmed that several, but not all, of his complaints were corroborated.”

The application to the Human Rights Tribunal was said to be driven in part by the applicant’s belief “that, despite promises of significant action, the respondent took only limited action. In particular, the applicant states that the respondent has not adequately addressed the shortfall in the applicant’s income caused by the systemic discrimination he experienced in his employment with the respondent.”

In its response, the respondent emphasized the manner in which it responded to the initial complaint and the subsequent steps taken in response to its conclusions. The respondent noted that it had also offered monetary compensation to the applicant based on the salary differential between the applicant and a colleague, but the applicant rejected the offer. During litigation, the respondent made a number of admissions about employee behaviour seemingly based on the information gathered by the external investigator.

Helpfully for the purposes of this blog, we don’t have to speculate as to the value of the respondent’s investigatory response to the complaint because in his decision the adjudicator includes a section titled, “How Does the Respondent’s Response to the Complaint Affect the Litigated Outcome?” He wrote:

As is documented above, the respondent hired Ms. Nemni to investigate the applicant’s complaint and she conducted a thorough and necessarily lengthy investigation. Mr. Nemni made findings that the applicant had been discriminated against contrary to the Code. The respondent accepted these finding and took several significant remedial measures. The respondent submitted that it met its obligation to address the applicant’s complaint in a timely and effective manner and therefore should not be held liable for any acts of discrimination found by Ms. Nemni and proven before this Tribunal…

The adjudicator noted that employers are directly liable for acts of discrimination with respect to employment, which he had found to have occurred. That said, they are not directly liable for acts of harassment. Therefore, he wrote:

The respondent’s response to the applicant’s complaint does in my view preclude a finding that it did not address the applicant’s harassment allegations appropriately. I find that the respondent acted reasonably in response to the applicant’s complaint and therefore met its obligation to provide a harassment free environment pursuant to section 5(2) of the Code.

Regarding the financial award for the applicant for the discrimination, the adjudicator stated that the respondent’s response goes to the issue of remedy. He noted that the applicant was seeking compensation for injury to dignity, feelings and self-respect of $100,000.00. He wrote:

…the respondent reacted promptly and reasonably to the applicant’s complaint. The applicant took the position in his Application that the investigation the respondent initiated was not appropriate, but wisely did not pursue this argument at the hearing. The respondent accepted the investigation results and acted on most of the applicant’s remedial requests…. I find it appropriate to consider the respondent’s generally reasonably [sic] response to the applicant’s complaint when determining the appropriate award of damages. To be clear, this award would be higher but for the respondent’s reaction to the applicant’s complaint.

Ultimately, the applicant received an award of $30,000.00 for injury to dignity, feelings and self-respect.

When faced with an internal complaint, the process and potential cost of retaining an external investigator can be daunting. What this case suggests is that it may, nonetheless, be time and money well spent. When deciding whether an external investigation will be helpful – or even necessary – consider the following:

• The complexity of the investigation – Are there potential process issues necessitating a higher level of investigation expertise?
• Real or perceived bias [often as a result of the role of the respondent(s)] – Will the other parties believe that the investigator can be neutral?
• Capacity of internal investigators – Can they complete the investigation in a timely manner?
• Expertise of internal investigators – Do they have investigation training AND training related to the subject matter of the complaint?

By Cory Boyd

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[1] In her evidence before the Tribunal, the investigator said that when she was engaged she expected that she would prepare a written investigation report but ultimately did not. The adjudicator wrote, “Ms. Nemni explained that the respondent fully supported her findings and were committed to addressing the applicant’s remedial requests. As a result, a formal report did not appear necessary.” We would still recommend written reports following an investigation.