Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER June 2, 2014 June 2, 2014 EMPLOYMENT LAW EMPLOYMENT LAW 5 Expert Training for Human Resources Professionals At RT Workplace Training Inc., Learn practical, hands-on skills to manage workplace investigation and employment law problems from RT's employment lawyers and training experts. RT Training Curriculum July 22 & 23, 2014 in Toronto The Employment Law Bootcamp This highly interactive course will provide participants with the skills they need to successfully navigate the employment relationship. Participants will walk away able to tackle challenging employment law issues in their workplaces. July 24, 2014 in Toronto The Essential Human Rights Primer With more HR professionals conducting internal workplace investigations than ever, we know that trying to address complicated human rights concepts in these cases can feel like an overwhelming challenge. This session has been developed with you in mind. October 9, 2014 in Toronto OHS Incident Investigation Training In this full-day workshop, we will discuss the importance of incident response and investigation, provide participants with a practical overview of when and how investigations should be conducted, and introduce basic investigation techniques. October 23, 2014 in Toronto Assessing Credibility and Understanding Bias This course has been designed for anyone who has ever investigated a set of allegations and struggled to make a finding at the end. Learn about the science of lie detection, find out which approaches work and which don't, and gain valuable tools to assist you in making decisions. December 2, 2014 in Toronto Interviewing Techniques and Difficult Witnesses Do you strive to be a more effective interviewer in your workplace investigations? After exploring many of the investigative interview techniques currently being utilized, participants will be provided with an interview model best suited to conducting internal workplace investigations. www.rubinthomlinson.com Tel: 416-847-1814 Copyright © 2014 Rubin Thomlinson, All rights reserved. RT LLP 20 Adelaide Street East, Suite 1104 Toronto ON M5C 2T6 Questions about our training courses or interested in having us create a customized session for your workplace? Email us at seminars@rubinthomlinson.com No discrimination? en there's no duty No discrimination? en there's no duty to investigate, says Ontario tribunal to investigate, says Ontario tribunal But not a green light to stop conducting investigations into discrimination claims But not a green light to stop conducting investigations into discrimination claims ere is no duty on an employer to investigate an allegation of workplace discrimination if the discrimination doesn't exist, the Hu- man Rights Tribunal of Ontario has ruled. But employers would be unwise to abandon any discrimination investigations in light of this ruling. Andrew Scaduto was employed by the Insurance Search Bureau of Canada (ISB) for fewer than four months when his employment was terminated for poor perfor- mance. ere had been numerous attempts to provide Scaduto with additional training and multiple discussions with him about his performance prior to the decision to terminate. At the termination meeting, Scaduto advised ISB — for the fi rst time — that he believed his performance was more harshly scrutinized after he told his su- pervisor he was gay. If Scaduto's allegation was ac- curate, his termination could have been ruled discriminatory under Ontario's Human Rights Code. But ISB did not launch a for- mal workplace investigation into the allegation because at the time Scaduto made his complaint of discrimination, he had already been terminated. Shortly thereafter, Scaduto fi led an application with the Hu- man Rights Tribunal of Ontario, alleging ISB had violated the code by discriminating on the basis of sexual orientation and failing to investigate his allegations. Is there a duty to investigate? Scaduto's argument that the code had been breached by ISB's fail- ure to investigate was not novel. Prior tribunal decisions had held an employer could be liable for damages for failure to investigate even absent a fi nding there had been workplace harassment or discrimination. Other cases from the tribunal also suggested the duty to inves- tigate could outlast the employ- ment relationship such that an employer would have an obliga- tion to inquire into a claim of dis- crimination even when the claim was raised post-termination. Tribunal disagrees with applicant Scaduto was not successful in his application. On the allegation of discrimination in the workplace, the tribunal found he was not subject to discrimination either during his employment or in the course of his termination. As for the alleged breach of the "duty to investigate," the tribunal held there can be no independent duty to investigate a complaint ab- sent actual discrimination. In Scaduto's case, he had not been discriminated against so it would be irrational to then penal- ize his employer for not having investigated his complaint when, had the complaint been investi- gated, it would have resulted in a fi nding of no wrongdoing. In the words of the tribunal: "This case demonstrates the diffi culty of fi nding a breach of the code solely for the failure to investigate. I have found there was no discrimination in the ap- plicant's workplace. Therefore, there is no contravention of the code. It does not make sense to say to the (employer) 'You have contravened the code because you have failed to investigate the applicant's complaint but, had you investigated, you would not have found discrimination.' ….the respondent's failure to in- vestigate the applicant's complaint did not cause or contribute to dis- crimination in the workplace be- cause it did not exist. It is incon- sistent with the wording of… the code to conclude the respondent contravened the applicant's rights by failing to investigate his com- plaint when that failure did not deprive him of a workplace free from discrimination." ere was also no duty to in- vestigate a complaint made after an employee is no longer in the workplace, said the tribunal: "A further diffi culty with fi nd- ing the respondent has violated the code… stems from the fact that the applicant's complaint was made after the (employer) decided to terminate his employment. e purpose of the duty to investigate is to ensure a complainant is not required to work in a discrimina- tory environment. "In this case, the applicant was no longer in the workplace. It could not then be said that the applicant's right to be free from discrimination in his workplace was infringed by the failure to in- vestigate because he was no lon- ger there. " Lessons for employers While the Ontario tribunal's de- cision is helpful for employers, it should not be interpreted as relieving them of responsibil- ity to investigate a discrimination complaint. Employers should continue to be vigilant in addressing claims of workplace discrimination and harassment from employees who remain in the workplace. As noted by the tribunal: "Employers are well-advised to investigate human rights com- plaints as the failure to do so can cause or exacerbate the harm of discrimination in the workplace. Internal investigations provide employers with the opportunity to remedy discrimination, if found, and can prevent applications be- ing fi led with the tribunal. ey also limit employers' exposure to greater individual and systemic remedies. e failure to do so is at their peril. "But if they fail to investigate discrimination that does not exist, that failure is not, in and of itself, a violation of the code." Leah Simon is a lawyer at Sherrard Kuzz, a Toronto-based employment and labour law firm representing management. She can be reached at (416) 603-0700 or visit www.sherrard- kuzz.com for more information. Leah Simon Legal View Accommodating Accommodating childcare obligations childcare obligations BY STUART RUDNER LAST YEAR, THE federal courts found in favour of Fiona John- stone , a border services employee who alleged she had been dis- criminated against on the basis of family status . She sought to have her schedule changed to accom- modate daycare availability in the area . At the time , many speculated this would " open the fl oodgates " to employees with children being able to dictate their work sched- ules . In my blog on www.hrre- porter.com, I opined it would not be relevant to most employees — it would only be applicable where the employee could establish a very signifi cant need. e decision was recently ad- dressed by the Federal Court of Appeal , which confirmed the lower court 's ruling but also es- tablished a four- step test an indi- vidual must meet before discrimi- nation on the basis of family status will be found . e fi rst step is for the employee to demonstrate she made reason- able eff orts to secure childcare . In other words , an employee cannot simply say her daycare of choice is only open during certain hours . She would have to lead with very specifi c evidence showing she had no reasonable options available unless the employer provided ac- commodation . Employers should not dismiss requests for accommodation , whether they be for disability or childcare , out of hand . at was a mistake the Canadian B order S er- vices A gency made . All requests should be taken seriously. Once a legitimate need has been estab- lished , the employer will have an obligation to consider accommo- dation options . However , the employee is not entitled to her preferred form of accommodation — the employer is entitled to ascertain what op- tions are available , and choose one , so long as it is reasonable . e Federal Court of Appeal decision confi rms that childcare obligations are a part of family sta- tus , and will be protected . How- ever , the court also confi rmed it will only fi nd there was discrimi- nation , or there was a need for accommodation , where a legiti- mate need can be proven by the individual . Stuart Rudner is a founding partner at Rudner MacDonald in Toronto. He can be reached at srudner@rudner- macdonald.com or for more informa- tion, visit www.rudnermacdonald. com.

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