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Howard Levitt: The Trouble with Workplace Investigations and Other Interesting Recent Cases

posted 2 years ago

I am often asked how I come up with two new employment law topics every week. I will let you in on my secret. Every month, I edit every employment law case from coast to coast to coast to prepare the Dismissal and Employment Law digest of which I am editor-in-chief. It keeps me up to date on the law and provides a wealth of topics.

Here are some noteworthy recent cases I have come across:

Workplace investigations

In Adam Mazanek’s case against Bill & Son Towing, the court looked at whether an employee must be provided an opportunity to respond to serious allegations before a company fires them. In Mazanek’s case, the employer alleged in court that he had been stealing gas — a claim Mazanek denied.

The court cited another court decision as follows: “Employers may … have an obligation to properly investigate serious allegations, such as those of theft, fraud, or sexual harassment, to provide the employee with an opportunity to respond to any such allegations, prior to dismissing the employee.”

The judge concluded: “In my view, this is one such occasion. Theft from an employer is a serious allegation. While the expectation for a small employer is not necessarily to conduct a full-fledged investigation, at a minimum, Bill & Son ought to have provided Mr. Mazanek with an opportunity to respond to this serious allegation.”

The court said it was not possible based on the evidence to determine “with any certainty whatsoever” that Mazanek had stolen gas at all, and ruled in his favour.

Are investigations even required?

Investigations came up in a separate case in B.C. as well, in which Daniel Golob, a deputy fire chief, claimed he was wrongfully dismissed by the town of Fort St. John following a probe stemming from alleged concerns about his leadership style.

The court found that the investigation was fundamentally flawed and that Golob, like Mazanek, was not even provided an opportunity to respond to the allegations. However, the court found that there was cause for Golob’s dismissal based, in part, on what the company discovered after the dismissal, including from messages retrieved from his city-issued cellular phone.

Golob had a pattern of ongoing insolence to the fire chief, including while at an active fire scene, and that was considered cause for discharge. Golob argued that the lack of a proper investigation should result in his winning his case for wrongful dismissal, cause or no cause.

But, as the court found, the law is clear that no duty of procedural fairness is owed by an employer to an employee. That is the case even where the employer is a public body.

The judge relied upon a previous decision in Vernon vs. British Columbia Liquor Distribution Branch, in which the court had ruled that, “Regardless of the flaws in the investigation, if the LDB had cause, they were entitled to dismiss Ms. Vernon without notice.”

In Golob’s case, the judge noted that concerns about the flaws in the investigation were ultimately “irrelevant to the core question of termination for cause.”

The Manitoba Court of Appeal, like the court in Golob, recently found that there was no obligation to investigate at all and the only question was whether there is cause or not. The cases are clear that beyond providing the employee an opportunity to respond to serious allegations before discharging them, there is no obligation to investigate further. The legion of workplace investigators, who have made a cottage industry of this, more often than not cost employers unnecessary monies, far more than it would generally cost simply to dismiss without cause. But, to the point, the preponderance of Canadian cases find there to be no legal duty to investigate at all.

I always recommend that HR or someone on staff interview the relevant witnesses and put the allegations to the employee accused before terminating. At the very least, it prevents them from coming up with a “better” version of events later and you may even find that their story is credible. But that is an HR and tactical issue.

Read those contracts 

After being terminated without cause in 2018, Fransic Battiston sued Microsoft Canada for a stock award that he had not received because its terms had stipulations for which he did not qualify.

The trial judge found that he did not receive notice of those terms, but the Ontario Court of Appeal reversed this decision, noting that Battiston consciously chose not to read the terms but nevertheless expressly agreed to them.

By agreeing to the terms and then saying that he had never read them, the court said, “he put himself in a better position than an employee who did not misrepresent, thereby taking advantage of his own wrong.”

Employers should ensure that any qualifying or exculpatory language limiting remuneration, such as those declaring that employees will not receive the benefit if they are no longer employed, in addition to very clear language which the Courts require, should be clearly attested to, with every page signed or initialled by each affected employee, to ensure they can argue that those provisions will bind their employees.

Employer liability for employee conduct

Guy Pellerin, a unionized employee of Slavko Concrete Finishing Inc., was on a two-hour drive in his own vehicle to a worksite where he was to perform work as a cement mixer. While taking a detour to get coffee, he was responsible for a motor vehicle accident. The damages exceeded his insurance coverage.

The Ontario Court of Appeal found that his employer was vicariously liable for his negligence and responsible to pay the difference between the actual damages and the amount of the insurance policy despite his being on a detour and despite the fact he was operating his own vehicle, not a company vehicle. 

Employers whose employees drive, even their own vehicles, in the course of business, should take heed of this decision and insist on very substantial insurance coverage for those employees’ vehicles as well as their own. They also should be mindful of what other liability they might incur to third parties as result of employee conduct.

BY HOWARD LEVITT

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-the-trouble-with-workplace-investigations-and-other-interesting-recent-cases

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