Better Late Than Never: When does a delay in a workplace investigation become unreasonable?

July 10, 2024

By: Mark Omenugha

Introduction

As soon as an employer becomes aware of an allegation of harassment, discrimination, or misconduct in the workplace, it has a legal obligation to investigate the complaint. For many employers, conducting a fair workplace investigation can feel like a dauting task. In order to comply with the applicable statutory and common law requirements, an investigation must be thorough, objective, confidential, and protect the rights and interests of all relevant parties. One of the most important aspects of a fair investigation is that it is undertaken promptly and without any unreasonable delay. In reality, however, there are many valid reasons that will justify a delay in conducting an investigation (for example, ensuring that any relevant evidence is gathered and that all key witnesses are interviewed). Simply put, conducting a good investigation takes time.

Best Practices

While there is no definitive rule about how long a workplace investigation should take, an investigator should review any applicable legislation, codes, or workplace policies as a starting point. Many employers have workplace policies in place that prescribe a length of time by which an investigation should be completed. The Code of Practice to Address Workplace Harassment under the Occupational Health and Safety Act states that an investigation must be completed within 90 calendar days or less unless there are extenuating circumstances warranting a longer investigation. Although the Code does not define the term “extenuating circumstances,” the complexity and scale of an investigation, the availability and number of witnesses, and other relevant considerations may necessitate a reasonable delay. As good practice, an investigator should consider the following:

Whether there are any applicable legislative requirements, such as a statue or regulation, that apply to the investigation; or
Whether the employer has any applicable policies or practices (for example, a Code of Conduct, an employee handbook, or any terms in an employment contract) that prescribe specific timelines for completing an investigation.

Recent Caselaw

Two recent decisions considered the issue of what constitutes a reasonable delay when conducting a workplace investigation.

In a recent arbitration decision in Ontario (Toronto District School Board v Canadian Union of Public Employees, Local 4400), a Union filed a grievance on behalf of an employee alleging that his harassment complaint was not properly investigated due to unreasonable delay. The events giving rise to the complaint occurred on August 29, 2018, and the employee reported the incident that same day. He also filed several subsequent reports and a formal complaint between September 4-20, 2018. The employer failed to respond to the complaint until 6 months later on July 18, 2019, and it was only after the Union filed the Grievance that the TDSB decided to actually investigate the complaint. The investigation was not commenced for another 6 months, and the investigation report was issued on March 15, 2021. In the investigation report, the allegations were generally substantiated. While the TDSB noted that their office was receiving an “extraordinary caseload” which resulted in significant backlog at the time of the complaint, the Chief Arbitrator found that this did not justify a 31-month delay in issuing the investigation report following its receipt of the initial complaint. In the circumstances, it was held that this amounted to an unreasonable delay and the employee was awarded general damages as a result.

Conversely, in a judicial review application before the Federal Court ( Green v. Canada (Aboriginal Affairs and Northern Development), it was held that a 27-month delay in conducting an investigation was reasonable. In this decision, the employee filed a harassment grievance against one of her colleagues on March 28, 2013. The employer retained an investigator and commenced the investigation in August 2013, almost 5 months later. The investigation report was not issued until June 9, 2015, and the employee’s grievance was dismissed. In the judicial review, the employee argued, among other things, that her procedural fairness rights were not respected in the course of the harassment investigation which took 27 months to complete.

In arriving at its decision, the Court relied on the timing requirements in the employer’s harassment policy and its Directive on the Harassment Complaint Process (the “Directive”) to assess whether the delay was reasonable in the circumstances. In particular, the employer’s Directive stated that investigations should “normally” be completed within a 12-month timeframe, barring “extenuating circumstances.” The court found that the language of the Directive provided the employer with some “latitude” to extend the timeframe required for an investigation. It was also noted that the investigation was delayed due to a number of extenuating circumstances, namely the complexity of the issues, the availability of witnesses (and the fact that a number of parties had intervening health concerns during the investigation), the fact that investigation involved multiple parties in a difficult work environment, and the fact that it took time to select a qualified investigator as a result of these issues.

Key Takeaways

As the opposing outcomes in these two very similar decisions suggests, the determination whether there has been an unreasonable delay in an investigation is much more of an “art” than a “science.” That is, a decision maker will need to consider the underlying context of the investigation as well as the facts and circumstances of each particular case. That said, both decisions confirm that an investigator should refer to any applicable policies, statutes, or regulations as a starting point. As a key takeaway, employers should endeavor to complete an investigation as quickly as possible, unless there are extenuating circumstances that would justify a reasonable delay. Whenever possible, the investigator should update the parties periodically on the status of the investigation. While there are often delays in an investigation that cannot be avoided, a good investigator will take steps to ensure that they strike an appropriate balance in protecting the competing interests of all parties involved.