Procedural fairness is the cornerstone of an appropriate workplace investigation. Although the specific requirements of procedural fairness will differ according to the context of the investigation, at its core, procedural fairness requires: an impartial and qualified investigator; a timely investigation; notice of the investigation; the opportunity to respond to contradictory evidence; union or legal representation (where applicable); and the duty to inform a complainant and respondent of the investigative findings and the nature of corrective action taken, if any. A failure of procedural fairness can diminish the legitimacy of an investigation and can result in judges and arbitrators invalidating investigative findings, and overturning corrective actions that result from such findings.
Employers have a legal obligation to protect their employees from, and to conduct an appropriate investigation into, any allegations of workplace harassment and violence. An investigation that fails to meet the relevant threshold of procedural fairness risks exposing the employer to extensive liability and litigation. Though other types of allegations may require different approaches to procedural fairness, the threshold is particularly high in the case of harassment investigations.
The recent Federal Court case, Marentette v Canada (Attorney General), 2024 FC 646 (CanLII) (“Marentette”), sheds light on the importance of procedural fairness in workplace investigations and the negative repercussions when employers fail to provide both complainant and respondent(s) with the right to know and respond to contradictory evidence.
Marentette involved a Border Services Officer who filed seven complaints of workplace harassment and violence pursuant to the Workplace Harassment and Violence Prevention Regulations (“Regulations”), involving six supervisors over a period of 25 years. The employer retained an investigator to investigate the complaints pursuant to the Regulations. In doing so, the employer provided the investigator with a procedural checklist to follow. The checklist included providing a copy of the investigator’s preliminary report to the complainant and the respondents, and obtaining comments from all parties before concluding the investigation.
The investigator interviewed the complainant, four of the six responding parties, and one witness before concluding the investigation. However, the investigator did not give the complainant an opportunity to respond to comments made about him by the responding parties and the witness. Contrary to the checklist, the investigator did not provide the complainant with any information about the responding parties or the witness interviews, nor a copy of the preliminary report.
Ultimately, the employer adopted the investigation report, which found that none of the occurrences alleged by the complainant constituted workplace harassment or violence, and accordingly recommended no preventative or corrective measures. The complainant received a copy of the final report, and then filed a Notice of Application for judicial review. As part of the judicial review application, the complainant sought and received a full record of the materials before the investigator, at which time he learned of the employer’s procedural checklist, and of the adverse reports made about him by the responding parties and a witness.
The Federal Court granted the application for judicial review. After reviewing the investigation report on a correctness standard – as required for questions of procedural fairness – the Federal Court concluded that the applicant was not afforded a fair and full chance to respond to the positions against him, as advanced by the responding parties and the witness and set out in the preliminary findings of the investigator.
In its reasons, the Federal Court confirmed that workplace harassment and violence investigations place an elevated duty of procedural fairness on the investigator, and that procedural fairness applies to both the complainant and the respondent. The Federal Court adopted previous comments at paragraph 13 of Provonost v Canada (Revenue Agency), 2017 FC 1077, to emphasize the emotional toll and significant consequences that can occur from a poorly completed workplace harassment investigation:
Although the Regulations do not provide a specific procedure, it should be noted that the investigation has significant consequences on staff relations in the work environment in question, as well as on the professional career and the psychological condition of the alleged victim and any person referred to in the work place violence or harassment complaint. These considerations are determinative in this case. In fact, the duty of procedural fairness in the context of harassment allegations is a particularly heavy one.
The Federal Court held that the investigator breached procedural fairness by failing to provide the applicant with the opportunity to rebut the evidence which arose against him during the investigation. This denied the applicant his right to a “reasonable opportunity” to rebut the unfavourable evidence gathered in his absence and respond to the respondents’ denials that their behaviour constituted workplace harassment and violence. The Federal Court noted the inherent unfairness that the applicant was expected “by his Notice and in his single interview with the Investigator, to have comprehensively addressed not only all issues he raised, but also to have comprehensively anticipated and addressed all the responding parties and witness might tell the Investigator” (Marentette at para 16). The investigator further breached the duty of procedural fairness when he relied on evidence to make factual determinations without properly affording all relevant parties with an opportunity to respond.
Further, the Federal Court found that the investigator also erred when he failed to follow the employer’s procedural checklist, which required that he provide the applicant with an opportunity to review the preliminary report. The Federal Court commented that had the investigator followed the checklist, “there might have been no basis for the applicant’s complaint based on procedural unfairness” (Marentette at para 24).
On these grounds, the Federal Court granted the application for judicial review and ordered the matter to be re-determined by a new investigator.
Marentette confirms a critical element of procedurally fair workplace harassment investigations: a complainant’s right to know and respond to evidence that is contrary to their allegations. While it is well established that respondents to an investigation must be given a meaningful opportunity to respond to allegations against them, Marentette indicates that complainants have similar rights when evidence is presented by respondents or witnesses that runs contrary to the allegations brought forward by the complainant. It remains to be seen how this case will apply to investigations into allegations other than harassment. However, Marentette serves as a cautionary tale for employers to ensure that workplace harassment investigations are conducted in accordance with the elevated duty of procedural fairness and as a reminder to investigators to ensure full procedural fairness for all parties involved in a workplace harassment investigation.
about the author
Nikki Banwait is an associate lawyer at Filion Wakely Thorup Angeletti LLP. Nikki practices in all areas of management-side labour and employment law with a particular interest in labour relations, workplace investigations, and workers’ compensation matters. Nikki was called to the Ontario Bar in 2023.
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