Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

It is clear how important it is to conduct a proper workplace investigation.  It is also clear that failing to do so can scuttle an employer’s case for a just cause dismissal, expose an employer to Human Rights Code damages, and, depending on the harm actually suffered, create a risk of aggravated Keays damages as well.

According to a recent decision from the Alberta Court of Appeal, we also now know that an unfair investigation that is biased from the outset can ground an award of punitive damages, which courts reserve for only the most “malicious and high-handed misconduct that offends a court’s sense of decency.”

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What began as a love story turned into a legal battle with a surprising outcome: the Ontario Court of Appeal has now recognized the tort of invasion of personal privacy. After 120 years of academic debate, it is now possible to sue for damages in connection with a breach of privacy. Employers may want to review their privacy policies to avoid any potential liability following this decision.

The case opposing Sandra  Jones to Winnie Tsige garnered much attention last year. Both Ms. Jones and Ms. Tsige were employed by the same bank, although they neither knew nor worked with each other. Ms. Tsige developed a romantic relationship with Ms. Jones’ ex-husband. However, Ms. Tsige claimed she was involved in a dispute with him over child support payments he was making to Ms. Jones, his former wife.

Unknown to Ms. Jones, Ms. Tsige used her position at the bank to access Ms. Jones’ personal financial information at least 174 times over the course of four years. Ms. Tsige was eventually caught and disciplined by the bank, leaving Ms. Jones upset and her confidential banking information destroyed. Even though Ms. Jones had suffered no quantifiable loss, she was awarded $10,000 as “symbolic” or “moral” damages by the Court of Appeal, though the Court made it clear that such damages could go as high as $20,000, depending on the circumstances of the case. 

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Winds of investigatory change are blowing through courts and workplaces.  Less then a decade ago, unfounded complaints made against a manager could justify stripping him or her of supervisory duties and bar an action for constructive dismissal.  These employees had no right to know the details of the complaints against them, nor were they entitled to give a response.  Simply put, procedural fairness received little consideration in the non-unionized workplace.

Now, however, with new human rights and occupational health and safety laws that put employers under a duty to investigate discrimination and harassment claims, courts are becoming aware of improper investigations carried out under the guise of other HR functions.

An Ontario court recently ruled on this topic in Chandran v. National Bank of Canada when it held that a senior manager demoted pursuant to an employee satisfaction survey had actually been constructively dismissed because of, among other things, improper workplace investigation procedures.

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