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Labour board dismisses employee’s workplace investigation appeal

A recent Ontario Labour Relations Board (OLRB) case, Erin MacKenzie v Orkestra SCS Inc., 2023 CanLII 13891, is an important reminder that, while employers should be responsive when dealing with employees who make workplace harassment complaints, they do not necessarily need to comply with the employee’s demands to change how a workplace investigation is to be conducted.

Background

Erin MacKenzie, the chief financial officer and general counsel of the company, raised a formal workplace harassment complaint against the company’s CEO. Previously, there had been informal discussions about “many of the issues” MacKenzie had experienced with the CEO, but she had never made a formal harassment complaint about those issues in the past.

The company, Orkestra SCS Inc., tried to appoint two workplace investigators, both of which were refused by MacKenzie due to various unfounded complaints.

The company initially appointed a HR professional to conduct the workplace investigation. However, MacKenzie complained there was a conflict of interest because this individual already provided HR services to the company on a contractual basis. MacKenzie further complained that it would be inappropriate for the HR professional to investigate the issue, as MacKenzie had personal conversations with the investigator prior to making the harassment complaint.

MacKenzie made a complaint to the Ministry of Labour, Immigration, Training and Skills Development (MOL) about the appointment of the first investigator and a MOL investigator was assigned to review her complaint.

In order to be proactive, Orkestra removed the first investigator and appointed a lawyer as the second investigator. MacKenzie was also unhappy with this investigator and complained that the two investigators had a working relationship. She also complained that the second investigator did not have the experience necessary to conduct a workplace investigation. MacKenzie refused to participate in the investigation process, as a result.

The MOL inspector reviewing Mackenzie’s complaint (regarding the first investigator), reported that “based on the information received, it has been decided that the Investigator selected by the employer can conduct the investigation into the complaint.”

MacKenzie appealed the MOL decision to the OLRB, seeking an Order to “appoint an investigator who has the necessary training and experience to meet the minimum requirements of the statute.”

The OLRB’s decision

With respect to the first investigator, the OLRB stated that, because the company relented to Mackenzie’s demands and appointed a new investigator, any issues with the first investigator became moot with the appointment of a replacement investigator.

With respect to the second investigator, the OLRB noted that Ontario’s Occupational Health and Safety Act does not require any specific qualifications for individuals who conduct workplace investigations. The OLRB further stated that Mackenzie’s “belief” that a second-year lawyer does not have the experience to conduct a workplace investigation was her unsupported personal belief and, not grounds for disqualifying the investigator.

The OLRB further noted that, if MacKenzie had participated in the investigation with the second investigator and, thereafter had been able to point to flaws within the investigation process, then a complaint by MacKenzie about the qualifications of the investigator may have been justified. However, as that did not happen, Ms. Mackenzie’s objections to cooperating with the second investigator were unfounded and/or premature.

Accordingly, the OLRB refused to appoint a new investigator and dismissed the appeal.

Lessons for employers

While employees are entitled to a workplace investigation in response to allegations of certain misconduct, they are not, by statute, entitled to the specific workplace investigator of their choice.

While concerns and objections made by employees during the investigation process should be considered, an employer does not need to change the investigator based upon bald or unfounded accusations of conflict or incompetence. However, even though the OHSA does not prescribe specific qualifications for workplace investigators, employers should still look to appoint an investigator who is capable of conducting an investigation in a manner that is fair, timely, thorough, and impartial.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.