In a recent decision of the Ontario Human Rights Tribunal (the “HRTO” or the “Tribunal”), Buckel v. St. Joseph’s Healthcare Hamilton, the Vice-Chair awarded the Applicant $15,000.00 after she was terminated for time theft – even though the Vice-Chair was satisfied that she did indeed commit time theft.
The Applicant was employed by St. Joseph’s Healthcare Hamilton (the “Employer”) for 12 years as a Secretary. The Applicant had a disability for which she was receiving treatment for during the course of her employment.
In October 2017, concerns regarding the Applicant’s absenteeism came to the attention of the Employer, and so the Employer commenced an internal investigation. While reviewing the Applicant’s timesheets, the Employer found that the Applicant was paid for 164 hours that she did not work, including nine days for which the Applicant was paid while there was no record of her attending work at all on those days.
Given the concerns arising from the investigation, the Employer decided to convene a meeting with the Applicant. On October 25, 2017, the Applicant was directed to go to the Human Resources Department for a meeting regarding her attendance at work. Prior to this meeting, the Applicant had no prior knowledge of any investigation into her attendance at work, was only provided with 5 minutes advanced notice of the meeting, was not provided with the timesheets or any other documentation collected by the Employer during the investigation, and was not provided any time to check her own records to confirm the accuracy of the Employer’s allegations.
In the meeting with Human Resources, the Applicant could not provide a definitive answer for why she did not attend work on the nine days for which she was paid. Accordingly, the Applicant was terminated for time theft.
At the hearing before the HRTO, the Vice-Chair accepted that, while the Employer had legitimate grounds to terminate the Applicant for time theft, the investigation was flawed and some of the flaws in the investigation had the effect of discriminating against the Applicant on the basis of her disability.
The Vice-Chair found that, of the 164 hours of alleged time theft, approximately 10% of the hours related to disability-related absences to which the Applicant reported to her Employer but were not properly coded on the time sheets. However, for the remaining 90% of her absences, there was no evidence presented that suggested her absences were disability-related, or that they were communicated to her Employer.
Moreover, the Vice-Chair found that the Employer had conducted a procedurally unfair investigation, as it relied on inaccurate timesheet records, did not provide the records to the Applicant to comment on, the Applicant was not provided with time to respond to the allegations against her, and the Employer had failed to interview key witnesses (including the Applicant’s former manager and colleagues).
Accordingly, the Tribunal held that the Employer’s flawed record-keeping and investigation resulted in it failing to realize that some (10%) of the absences for which the Applicant was found to be guilty of time theft for were disability-related and were reported in advance by the Applicant, which amounted to discrimination under the Ontario Human Rights Code. Even though the Applicant would have been terminated irrespective of the discrimination (as she committed non-disability-related time theft), the disability-related absences were still a factor, though not a determinative one, in the Employer’s decision to terminate the Applicant.
Accordingly, the HRTO awarded the Applicant $15,000.00 in general damages arising from the Employer’s discriminatory conduct.
Takeaways
As discussed in our recent blog article, employers have a statutory duty to conduct a reasonable investigation that is appropriate in the circumstances. This case underscores the following important aspects of a reasonable investigation:
- Respondents must be given advanced notice of an investigation and adequate time to respond to any allegations against them, including any evidence relied upon by the Investigator in reaching its findings.
- The employer must be able to show that it interviewed a reasonable number of witnesses in reaching its investigative conclusion.
- Any documentary evidence relied upon by the Investigator must be accurate.
Furthermore, as noted in this decision, even if an employee is terminated for non-discriminatory reasons, if the Tribunal is satisfied that a Code-protected ground is a factor in their termination (even if not a determinative factor), an employer may be liable for significant damages.
If you have a question about workplace investigations or any other employment law or human rights issue, please contact Turnpenney Milne LLP.
Written by: Samantha Sutherland