A recent Ontario Human Rights Tribunal decision highlights how important it is for employers to handle sexual assault allegations properly and thoroughly. It provides detailed guidance on what to do—and what not to do—when conducting similar investigations.

The employer in AB v. 2096115 Ontario Inc. c.o.b. as Cooksville Hyundai was found liable for conducting an unreasonable and inadequate investigation into an employee’s sexual assault allegations and for the discriminatory way the complaint was addressed, which violated her rights under the Human Rights Code (the “Code“). The employer in this case was ordered to pay the employee’s lost wages plus $55,000 for infringing her rights under the Code.

Allegations of Assault

The employee submitted a complaint, alleging that her manager had sexually assaulted her. In a subsequent criminal court proceeding, the manager pleaded guilty to a lesser charge of assault and admitted the employee’s allegations were true.

Following the workplace complaint, the Director of People and Culture—an agent of the employer who provided human resources services—was appointed to investigate the matter. She met with the employee and proposed that the manager make an apology in order to resolve the complaint. The employee was not pleased with that as a resolution and asked if she could report to another manager. The HR director gave the employee information about the company’s employee assistance plan (EAP). The employee said that no further suggestions were offered about how to address the situation.

The HR director subsequently asked the employee in an email to provide details of what had happened. The employee sent a detailed account, providing the same details she later gave to the police. Less than half an hour later, she received an email back, which read in part, “Further to our conversation and after completing the investigation, we would like to accommodate your request to report directly into [the other manager]. And if [he] is not there, there will be an alternative leader delegated for you….”

This upset the employee because she didn’t know “what kind of investigation could have been done and how they designated it complete.” The HR director explained that it was her role to ensure the employee was in a safe workspace and to support her in the situation. She told the employee she would speak to the manager to get his perspective as part of the investigation. The employee was subsequently given a week off with pay to allow the director time to interview the manager and conclude the investigation. The HR director did not say how she would ensure the employee was in a safe environment after she returned to work.

When the HR director talked to the manager, he said he had no recollection of assaulting the employee. The director later told the Human Rights Tribunal of Ontario (the “Tribunal”) it wasn’t her job to determine whether a sexual assault had taken place. “That is up to police… I was to determine if she was safe. I put her in a safe space until there was a conviction. That was my job. I am not a court of law. Innocent until proven guilty.” The director did not ask the manager for a written account of his version of the incident “because he was calm, cool and collected and I had captured all his points.” She did not share her investigation’s conclusions with either the employee or the manager.

The employee became more frustrated since she still had to interact with her manager, who continued to act as if nothing had happened. It seemed that nothing was being done to address the situation, so she asked for a transfer to a different dealership that was affiliated with the employer. Her transfer request was accommodated, however, she was paid a dollar an hour less than before and her commute was 15 to 25 minutes longer than it had been. The employee filed a complaint alleging discrimination with the Tribunal.

Workplace Policies Must be Clear and Carefully Followed

The Tribunal found that the employee’s complaint had not been properly investigated. It found that the employee “established a prima facie case of discrimination flowing from an unreasonable and inadequate investigation of her complaint.” She also experienced discrimination from the HR director and the company’s failure to properly address her complaint, contrary to section 5(1) of the Code.

According to section 46.3 of the Code, any act or thing done or omitted to be done in the course of his or her employment by an agent is deemed to be an act or thing done or omitted to be done by the employer. As a result, the employer was found liable for the HR director’s actions, omissions and decisions.

The Tribunal found it relevant and important that the HR director’s evidence “demonstrates that even though it was part of her job to develop and implement these policies, she did not refer to the policies during her investigation of the applicant’s complaint. She agreed that it was her role to see if [the manager] violated any workplace policy. She agreed that the facts he admitted to would amount to a violation of the anti-violence, harassment and sexual harassment policy”.

Despite this, the HR Director admitted to not referring to internal workplace policies regarding violence and harassment during her investigation. Further, she did not consider whether the manager’s behaviour had violated said policies. In the absence of those steps, the investigation could not be said to have been thorough or proper.

When applying a standard of reasonableness, the Tribunal determined that:

• the evidence demonstrates that the HR director did not treat the allegations seriously;
• did not deal with them sensitively; and
• did not reasonably investigate and act.

The Tribunal added that the employee “was a victim of sexual harassment and assault. She had the courage to come forward to her employer to disclose the conduct of her boss. She had a right to work in a place that was safe, to be respected and to have her dignity preserved, and a workplace that was free of discrimination.  The investigation was seriously flawed and conducted in an insensitive manner.”

The decision is instructive for employers. Workplace policies designed to keep employees safe and which outline any complaint process must be clear and updated. Employers should also provide proper training to employees and respond to all complaints in a sensitive and timely manner in order to avoid Human Rights Code liability in similar complaints.

For guidance on this issue and all employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.