Canadian Employment Law Today

6 | August 20, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends/Ask an expert Canadian HR Reporter, a Thomson Reuters business 2014 tainly possible that recording could be chal- lenged on the facts despite its compliance with information privacy legislation. As to the length of time that an audio or video recording should be kept, that too would be dependent on the facts and the precise terms of any governing legislation and/or collective or other employment agreement. e retention of employee eval- uations as part of an employee's employ- ment record might be reasonable in some cases for the duration of the employment without regard to the particular media in which they were recorded. In other cases, the period of allowable retention might be dictated by the terms of employment. For example, if the record- ing took place in the context of unionized employment and could be considered dis- ciplinary, the collective agreement might require its removal from the employee's personnel file after a certain period of time. e question whether the recording of evaluations or disciplinary interviews might be permissible under the common law, arbi- tral jurisprudence or governing legislation does not address the question whether it is advisable. While it is true that a recording provides the best evidence of what was said at such an interaction, it is also true that the obvi- ous presence of video and audio recording devices tends to put a chill on interactions and may actually prevent the candid discus- sion that the process is intended to achieve. In addition, a recording may reveal flaws in the employer's own procedures or disciplin- ary investigations. It is also possible that an employer's use of audio and video technology in this man- ner may impel employees themselves to feel justified in doing much the same. Smartphone technology is in the hands of almost every employee these days and there are an increasing number of cases in which that technology has been used to record in- stances of alleged employer discrimination, harassment, safety infractions and the like. Many employers are wisely considering policies specifically addressing such con- duct. ey would be hard-pressed to justify such policies in the face of their own record- ing of employee/employer interactions. Tim Mitchell is a partner with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or Tim.Mitchell@norton- rosefulbright.com. Failure to investigate didn't make things worse Recording « from No DutY on page 1 « from AsK AN eXPert on page 2 ISB did not launch a formal workplace in- vestigation into the allegation as, at the time of Scaduto's complaint of discrimination, he had already been terminated. Shortly thereafter, Scaduto filed an application with the tribunal, 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 failure to investigate was not novel. Prior decisions of the tribunal had determined that an employer could be liable for damages for a failure to investigate even absent a finding there had been work- place harassment or discrimination. Other cases also suggested the duty to investigate could survive the employment relationship such that an employer would have an obligation to inquire into a claim of discrimination even when raised post- termination. e tribunal's decision On the allegation of discrimination in the workplace, the tribunal found Scaduto was not subject to discrimination during his em- ployment nor in the course of his termina- tion. As for the alleged breach of the "duty to in- vestigate," the tribunal held there can be no independent duty to investigate a complaint without the existence of actual discrimina- tion. In Scaduto's case, the tribunal found he had not been discriminated against, so it would be irrational to penalize his employer for not investigating his complaint when an investigation would not have found any wrongdoing. e tribunal said: "is case demonstrates the difficulty of finding a breach of the code solely for the failure to investigate. I have found there was no discrimination in (Scaduto's) workplace. erefore, there is no contravention of the code. It does not make sense to say to (IBS) 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. "(ISB's) failure to investigate (Scaduto's) complaint did not cause or contribute to discrimination in the workplace because it did not exist. It is inconsistent with the wording of … the code to conclude (ISB) contravened (Scaduto's) rights by failing to investigate his complaint when that failure did not deprive him of a workplace free from discrimination." e tribunal also held there was no duty to investigate a complaint made after an em- ployee is no longer in the workplace: "A further difficulty with finding (IBS) has violated the code…. stems from the fact that (Scaduto's) complaint was made after (IBS) decided to terminate his employment. e purpose of the duty to investigate is to en- sure a complainant is not required to work in a discriminatory 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 discrimina- tion in his workplace was infringed by the failure to investigate because he was no lon- ger there." Lessons for employers While this decision is helpful for employ- ers, it should not be interpreted as reliev- ing employers from any responsibility to investigate a complaint of discrimination. Employers should continue to be vigilant in addressing claims of workplace discrimina- tion and harassment from employees who remain in the workplace. As noted by the tribunal: "Employers are well-advised to investi- gate human rights complaints 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 being filed with the tribunal. ey also limit em- ployers' exposure to greater individual and systemic remedies. e failure to do so is at their peril. But, if they fail to investigate dis- crimination that does not exist, that failure is not, in and of itself, a violation of the code." For more information see: • Scaduto v. Insurance Search Bureau, 2014 HRTO 250 (Ont. Human Rights Trib.). Leah Simon is a lawyer with Sherrard Kuzz LLP, a management-side labour and em- ployment law firm in Toronto. She can be reached at (416) 603-0700 or visit www. sherrardkuzz.com for more information. leAh siMoN

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