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Human Rights and the Need to Conduct a Workplace Investigation

Human Rights and the Need to Conduct a Workplace Investigation

Alberta law mandates that the employer take immediate steps to investigate a human rights complaint. A good example is the case of Yaschuk v Emerson. A female employee suffered continual workplace sexual harassment and reported this to Human Resources. The Tribunal found that the investigaton was dismissive and cavalier as the employer failed to interview key witneses and preserve important evidence such as emails and other documents. The Tribunal awarded $50,000 in general damages, noting the impact of the harassment and unfair investigation.

📌 Further reading:
See David’s LinkedIn commentary,
The Duty to Investigate — An Independent Remedy.

In cases involving a request for accommodation, such as often occurs in the context of a disability, be that physical or mental, the employer must conduct a fair and neutral investigation to understand the limitations and how it may act to accommodate them. See, for example, the decision of Wagar v Alberta. In this case, the employer showed that it did just that. It was the employee who failed to co-operate and the complaint before the Human Rights Tribunal was dismissed.

The employer must be aware that such a duty to investigate will arise whether or not a formal complaint has been made. If the company is aware of such a concern, it must take steps to investigate.

A motion to dismiss may be made early in the proceedings based on the results of an immediate investigation as is discussed here.

A summary of human rights damage awards appears here.

There is also a good possibility that an effective and fair investigation will resolve the matter before a complaint with the Human Rights Commission has been filed.