Canadian Employment Law Today

October 7, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: When an employer first learns about employee misconduct, it is important to take swift and proactive steps to deal with the situ- ation. Otherwise, unaddressed misconduct may prejudice the interests of the employer. An employer should prepare an action plan to address the situation, which may include a formal or informal investigation, depend- ing on the nature of the misconduct. Prompt action ensures that witnesses have a better recollection of events and that evidence, such as emails and texts, have not been deleted or lost. Some workplaces have set timelines and procedures for conducting an investigation, in policies, employment contracts or collec- tive agreements, and these should be reviewed carefully to ensure they are complied with. When employers are responding to bully- ing and harassment, they need to be aware of the relevant occupational health and safety legislation in their jurisdiction. In British Co- lumbia, for example, the Workers' Compensa- tion Act requires employers to take all reason- able steps to ensure their workers' health and safety. This responsibility includes an obliga- tion to establish a policy for the prevention of workplace bullying and harassment and for the timely investigation and disposition of bullying and harassment complaints. Similarly, Ontario's Occupational Health and Safety Act requires an employer to con- duct an "appropriate" investigation in re- sponse to allegations of workplace harass- ment. The Ministry of Labour's Code of Practice to Address Workplace Harassment Under Ontar- io's Occupational Health and Safety Act states that an investigation needs to be completed within 90 days unless there are extenuating circumstances. If an employer fails to deal with alleged misconduct in a timely manner, it may be faced with an allegation that it is precluded from proceeding with discipline or discharge because it has condoned the employee's be- haviour. In the frequently cited 1889 decision in McIntyre v. Hockin, the Ontario Court of Appeal stated: "…If he retains the servant in his employment for any considerable time af- ter discovering his fault, that is condonation, and he cannot afterwards dismiss for that fault without anything new." Undue delay in a misconduct investiga- tion may give rise to a successful argument of condonation, unless the employer has a reasonable explanation for its delay. In Kirk v. Nanaimo Literacy Association, the employer succeeded in proving it had just cause to dis- miss an insubordinate employee who sent "inflammatory and hostile" communica- tions. In response to the employee's argument about undue delay, the B.C. Supreme Court determined that the employer had been justi- fied in taking approximately seven weeks to respond to the misconduct because the em- ployee's misconduct had created a crisis for the employer, leaving the company with a board of only two members. When an employer does not conduct a timely investigation, it may expose itself to liability. In TM v. Manitoba (Justice), for example, the complaint's co-workers sexu- ally harassed him over a period of years, and eventually this escalated to a sexual assault. The employer initially refused to investigate the allegations unless the complainant pro- vided names of his harassers and witnesses. Even after names were given, the employer still dragged its feet and failed to conduct a thorough investigation. Every time the com- plainant asked the employer to follow up, the employer made him recount the traumatic experiences and provide more information. As a result, the complainant's mental health deteriorated. Eventually, after 19 months, the employer renewed its investigation, but it failed to put specific allegations to the al- leged harassers. The adjudicator awarded the complainant $75,000 for injury to dignity, feelings and self-respect as a result of the in- adequate investigation and failure to address the harassment. The employer's staff was also required to complete workplace harassment training, including how to respond to and in- vestigate workplace harassment. T.M. v. Manitoba demonstrates that failing to act promptly can expose victims to fur- ther abuse and create additional liability for employers. In addition, failure to promptly address misconduct can lead to morale prob- lems in the workplace and encourage other workers to think that misbehaviour is accept- able. For more information, see: • McIntyre v. Hockin, 16 O.A.R. 498 (Ont. C.A.). • Kirk v. Nanaimo Literacy Association, 2018 BCSC 1217 (B.C. S.C.). • T.M. v. Manitoba (Justice), 2019 MBHR 13 (Man. Human Rights Adj. Panel). Colin Gibson is a partner with Harris and Com- pany in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Have a question for our experts? Email jeffrey.smith@keymedia.com Ask an Expert HARRIS AND COMPANY, VANCOUVER with Colin G. M. Gibson Conducting a timely misconduct investigation Question: What is the reasonable time limit to conduct an investigation and issue discipline after an employer learns of employee misconduct? Canadian HR Reporter, 2020 2 | | October 7, 2020 October 7, 2020 Undue delay in an investigation may give rise to a successful argument of condonation of an employee's misconduct. CREDIT: BERNIE_PHOTO iSTOCK

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