In Kozar v The Canadian National Railway Company (2024 MBKB), Justice Rempel heard a summary judgement motion regarding a 61 year old Senior Material Supervisor with 34 years service who was terminated for sexual harassment.

CNR relied completely on an investigation report done by a third party, who did not testify at the motion. CNR did not call any witness who actually made the termination decision. Moreover the Investigator made negative findings about the Plaintiff’s credibility. CNR could not even show that the decision maker had even read the investigation report.

The judge found that the investigation report was hearsay evidence and the failure to call the decision maker meant that CNR had not proven just cause nor did they prove that alternative discipline measures short of dismissal were even considered.

The plaintiff was awarded 24 months notice.

My comments:

This case illustrates the misconception about investigations of this nature.

Investigators are hired by employers to interview witnesses, make findings of fact and sometimes to recommend action. This provides management with a firm factual basis upon which to make its decision.

However, the report is NOT evidence at a trial or an adjudication as to the truth of the findings.

It is NOT a substitute for calling actual witnesses to the relevant events.

It IS complete hearsay and frankly should not be admitted at all, except to show that management did its homework and did not make a rash decision.

But the job of a judge or an arbitrator is not to determine whether management made a reasonable decision, rather it is to determine what actually happened. Therefore the opinion of the investigator is completely and utterly irrelevant.

I had a case a few years back in which I was the arbitrator involving the discharge of a Correctional Officer for the use of excessive force.

The Employer had a done a thorough and impressive investigation, having interviewed numerous witnesses, including a prisoner who was an eye witness. The Superintendent, in reliance on the report, dismissed the employee. Based on the information in the report, I would have done the same.

However, by the time of the arbitration, the Employer was unable to call many of those witnesses, including the eye witness. I therefore found, on the evidence before me, that the Employer had not proven just cause.

In that case, the Union did not allege that the Employer breached any due process obligation nor did it allege any aggravated or punitive damages.

Investigations have an important place in the workplace, but they are not a substitute for proving every element of just cause at a trial or an arbitration with first party evidence.