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Investigation: Statutory Function & Procedural Fairness

Statutory Decision-Making and Procedural Fairness in Workplace Investigations

A workplace investigation requires special care where the employer is a public body or statutory decision-maker.

In that setting, the investigation may form part of an administrative decision affecting the employee’s statutory, professional, reputational, or employment interests. The employer may be required to provide a level of procedural fairness that goes beyond the ordinary private-employer investigation.

A useful example is South East Cornerstone School Division No. 209 v Oberg, 2021 SKCA 28.

The Oberg Case

Mr. Oberg was a high school principal employed by a Saskatchewan Board of Education. He also volunteered as a coach for school sports teams, including a senior girls’ volleyball team on which his daughter played.

Following an incident at a volleyball game involving Mr. Oberg and the female head coach, a parent, reported the matter to the Board. The Board investigated and then demoted Mr. Oberg from principal to teacher.

Mr. Oberg applied for judicial review, arguing that the Board’s decision should be set aside because the investigation and decision-making process breached procedural fairness.

The Chambers judge agreed. The Board’s decision was quashed, and Mr. Oberg was reinstated to principal duties. The Board appealed unsuccessfully to the Saskatchewan Court of Appeal.

Why Procedural Fairness Applied

The Board was not simply acting as an ordinary private employer. It was a statutory public body governed by Saskatchewan education legislation.

That distinction mattered.

The Court applied the familiar principles from Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. These factors include the nature of the decision, the statutory scheme, the importance of the decision to the individual affected, the person’s legitimate expectations, and the procedures chosen by the public body itself.

The Chambers judge concluded that the Board owed Mr. Oberg a high degree of procedural fairness. That duty was breached in three fundamental ways:

1. The Board failed to provide Mr. Oberg with sufficient particulars of the allegations made against him during the investigation.
2. The Board failed to provide him with a fair opportunity to respond to those allegations.
3. The Board failed to provide reasons for its decision.

The Importance of Internal Policies

The Board’s own investigation manual also played an important role.

The manual referred to principles of natural justice, including the right to know the accusations, the right to representation, the right to respond, and the right to know the reasons for the decision. Those internal procedures helped create a legitimate expectation that the Board would follow a fair process.

This is an important lesson for public-sector and statutory employers. A public body’s own policies, manuals, and investigation procedures may become part of the procedural fairness analysis. If the employer adopts a procedural standard, it should be prepared to follow it.

Remedy

The Court did not merely criticize the investigation. The demotion decision was quashed, and Mr. Oberg was reinstated to principal duties.

That remedy shows the practical significance of procedural fairness in statutory employment decision-making. Where the process is unfair, the resulting decision may be set aside.

In some cases, the matter may be sent back to the decision-maker for reconsideration. In other cases, as in Oberg, reinstatement or other direct relief may follow.

Practical Lessons for Public Employers

Where an employer is exercising authority under a public statute, the investigation should be designed with procedural fairness in mind.

At minimum, the employer should consider whether the affected employee has been given:

• clear notice of the allegations;
• sufficient particulars to understand the case to be met;
• a meaningful opportunity to respond;
• an impartial investigation process;
• access to representation where required by policy, statute, contract, or fairness;
• reasons for the final decision; and
• a process consistent with the employer’s own policies and statutory obligations.

The practical lesson is straightforward: when a public or statutory employer conducts a workplace investigation that may affect an employee’s position, reputation, or employment status, procedural fairness is not a technicality. It may determine whether the final decision survives judicial review.