Can a worker pre-emptively refuse to participate in a workplace investigation because she doesn’t like the person the employer chose to conduct it?
That question was put to the Ontario Labour Relations Board after a CFO, who filed a harassment complaint against her CEO, objected to having an HR professional who had a contract with the company investigate the matter.
When the HR professional was replaced by a lawyer, she again refused to co-operate because the lawyer only had two years’ experience and didn’t seem to have a lot of depth in conducting investigations. Instead, she sought to have the board appoint a new investigator.
Notice of termination and formal complaint
The complainant in this case was the general counsel and chief financial officer (CFO) at Orkestra SCS. In July 2021, she was given six months’ notice that her employment was being terminated.
In August, the CFO raised a formal harassment complaint involving the chief executive officer (CEO). Prior to that, she had discussed “many of the issues” she was having with the CEO in an attempt to resolve them, but never formally complained.
The employer appointed an investigator (the “first investigator”), but she complained this person was not qualified and had a conflict of interest. This investigator had a contract to provide HR services to the employer, and therefore the CFO felt she had a financial interest to please Orkestra SCS.
Additionally, the CFO said this investigator previously had person conversations with her regarding her experiences, and therefore it was inappropriate to have her look into the complaint. The CFO also said this HR person reported to her, and that the CEO appointed her as investigator and continued to talk to her about the case.
She complained to Ontario’s Ministry of Labour, Immigration and Skills Training (MOL) regarding the appointment of the first investigator.
Investigator removed, lawyer takes over
In the meantime, the first investigator was removed (or removed herself) from the file and a second investigator was appointed.
The CFO did not approve of this investigator either. She said the first investigator and the second investigator had a working relationship and, further, this person was a second-year lawyer with no demonstrated experience as a workplace investigator.
Emails between CFO, investigator
When this investigator reached out to the CFO, she responded with a question about her qualifications.
“I have reviewed your LinkedIn profile and, with respect, it seems you are a relatively junior lawyer practicing on your own and your profile does not list any formal training or certifications as a workplace investigator,” she wrote in an email, asking for confirmation of the number of investigations this person had completed.
The second investigator passed this information on to the CEO, who responded to the CFO and said it was the employer’s right to choose the investigator and that she needed to co-operate in the investigation.
The CFO refused and again asked for confirmation of credentials from this second investigator. Again, she was encouraged by the CEO to participate in the investigation.
The CFO felt threatened by the CEO directing her to participate in the investigation, and she felt it was not his place to do so. The second investigator contacted the CFO by email and said there was no basis for her continued refusal.
“Your refusal to participate in the workplace investigation without good reason is duly noted on record,” it said. “My client has advised that they emailed you highlighting my experience conducting workplace investigations, so, respectfully, it looks like your response to me below is a sham and a means to circumvent the investigation process.”
Charges of Bias and unprofessionalism
The CFO said that communication showed bias and unprofessionalism. She tried to the get the MLO inspector who was looking into the appointment of the first investigator to consider her concerns about the second one. But she was told he was only dealing with the allegations involving the first one, and she ought to raise her concerns about the second one directly with the Ontario Labour Relations Board.
The inspector did not issue any orders related to the first investigator, but in his field visit stated the following: “Based on the information received, it has been decided that the Investigator selected by the employer can conduct an investigation into this complaint.”
The CFO told the board the employer has demonstrated its inability to appoint or instruct an investigator, and asked the board to appoint one instead.
The ruling
The board noted there didn’t appear to be any decisions that specifically considered the issues raised in this case.
It noted that, in the case of the first investigator, the employer “ultimately relented” to the CFO’s demands and replaced her with a second investigator. So that issue was resolved.
But the CFO was also unhappy with the second investigator, primarily because she was a second-year lawyer and was not qualified (in her opinion) to conduct the investigation.
No specific qualifications for investigators under act
The employer pointed out, correctly, that Ontario’s Occupational Health and Safety Act does not require individuals who conduct workplace harassments to have any particular qualifications. Further, the board said the act doesn’t necessarily mandate the use of third-party investigators.
“In the Board’s experience, such investigations are often conducted by individuals with a range of experiences and backgrounds, including (but not necessarily requiring) backgrounds in human resources and the law,” it said.
It noted that, while it doesn’t have the force of law, the MOL’s informational document specifically lists lawyers as individuals who could carry out such an investigation.
Therefore, it ruled the CFO’s concerns about the lawyer were not justified.
“There is nothing in the Act that supports the conclusion that a lawyer, regardless of her year of call, is incapable of conducting an investigation that is ‘appropriate in the circumstances,’ so as to justify a worker’s decision to pre-emptively refuse to cooperate with the lawyer’s investigation,” it said.
The conclusion may have been different if she had participated in the second investigator’s investigation and was able to point out inadequacies which rendered it inappropriate, the board said.
It also shot down her claim about some sort of working relationship between the second investigator and the employer. That, on its own, does not disqualify the investigator.
Nor did it have a problem with the “sham” email that CFO said showed bias and unprofessionalism. While the words may have revealed impatience with the situation, they did not establish an inability to conduct an appropriate investigation.
“This is particularly so when her words are placed into context, namely that (the CFO) was directly challenging her competence to perform her job for no justifiable reason,” it said.
Objections ‘unfounded and/or premature’
It ruled the CFO’s objections to co-operating with the second investigator were “unfounded and/or premature.”
The board noted that, in its most recent correspondence, the employer advised (for the first time) that it had completed its investigation without the CFO’s input. It reverted to the first investigator to coduct and complete it.
“Given that the Employer only reverted to the First Investigator after first giving (the CFO) an opportunity to participate in an investigation conducted by the Second Investigator, this latest development does not change my conclusion in this case,” it said.
Simply put, her refusal to co-operate with the second investigator was “fatal to her ability to establish a prima facie case.”
Her request to have a new investigator appointed was dismissed.
For more information, see Erin MacKenzie v Orkestra SCS Inc., 2023 CanLII 13891 (ON LRB).
