HR | Atlantic - Positive Change at Work

Arbitrator treats harassment investigation findings as inadmissible

Jul 12, 2012

 Despite a current push for employers to improve their discipline and harassment investigation processes, employers must remember that workplace investigations do not take the place of an arbitration hearing.

In Canadian Union of Public Employees, Local 47 v. Saskatoon (City),  [2011] S.L.A.A. No. 14 (QL), Arbitrator Hood would not admit the findings of a third-party harassment investigation that the employer wanted to introduce as part of the basis for a suspension of an employee for long-term negative and harassing behavior in the workplace.  Arbitrator Hood held that the investigation report was relevant only as evidence that the employer undertook a formal investigation into the harassment complaint.  However, Hood ruled that any findings of misconduct in the report were inadmissible as hearsay. In Hood’s opinion:

[T]he investigation report is nothing more than an explanation as to why the employer levied discipline. The employer, in this case the City, must still prove to the arbitrator the facts giving rise to the discipline imposed by the City. This can be done only by way of direct, personal evidence that is tested under cross-examination in an arbitration hearing. An arbitrator may come to a different determination of the facts than an investigator retained by the employer. The arbitration forum is different, the evidence is taken under oath, the evidence is subjected to the scrutiny of cross-examination, and, as in this case, the evidence relied upon by the investigator may be evidence that is different than that which is presented to the arbitrator.

This ruling ensures that the grievor has access to procedural fairness and has the full rights provided by the collective agreement (which may or may not be respected in the investigation process).  It is challenging for an employer  to know what to do.  Investing heavily in a third party investigation, which will amount to thousands of dollars only to have to repeat the process again at a possible arbitration hearing must be disheartening.  While a good investigation is ‘best practice’, and may lay the ground work for an interest-based resolution of concerns regarding discipline – not all contexts will support this collaborative approach.

Therefore, when an employer receives an investigation report, it must take into consideration whether the witnesses and the evidence will likely hold up in an arbitration, because if a decision based on the investigation report is grieved, an arbitrator will allow the union to test each piece of evidence and testimony for its evidentiary weight.  Every witness will be called again to testify, and the grievor now has the whole case well in advance to prepare his defence.

While the ruling on the use of the investigation report is disheartening, it is not surprising.  Arbitrators have the right to determine their own process, and to weigh the quality of the evidence introduced.  What we must now determine, is how much to invest in an investigation, if the Arbitrator is going to second-guess every finding of fact.  Perhaps employers will need to consider having jointly conducted investigations in appropriate circumstances, which would allow the employer and union to introduce an agreed statement of facts, and limit the need for the Arbitrator to revisit all pertinent evidentiary points discovered in an investigation, and allowing the Arbitrator to focus on the interpretation and application of the collective agreement.

by Chris Montigny

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