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Past Behaviour Should be an Indicator of Future Behavior

Posted By Grace Skowronski, Senior Lawyer, Lister-Beaupré , Monday, July 17, 2017

At least when it comes to an employer’s practice of handling employment status during a workplace investigation

Originally published on February 22, 2017

A recent labour case has confirmed that if an employer has a practice of placing employees on paid leave pending a workplace investigation and the employer’s consideration of how it should respond to the investigation, such a practice should be applied across the board.

In some cases, a practice to place employees on leave with pay during workplace investigations may be subject to conditions. In instances where an employer wishes to rely on an “exception” to such a practice, it must first establish that an exception does in fact exist. Specifically, the employer should establish the relevant factors or circumstances that must exist for it to divert from its practice (and instead implement the exception).

Once an exception is established, the employer must be able to point to the circumstances that led it to rely on the exception. It must also show that nothing else motivated its decision to divert from its practice.  It is important that employers remain consistent in their approach.

In City of Ottawa and Canadian Union of Public Employees, Local 503, the City of Ottawa decided to conduct a workplace investigation into an incident involving one of its employees. The employee was placed on leave with pay, pending the investigation as per the City’s practice.

Given the nature of the incident, the employer first asked the employee to attend a psychological assessment (in part) to determine if the employee had a relevant medical disorder that could have contributed to the incident. A psychologist ultimately determined that there was no disorder that contributed to the incident, however, based on some personality traits, it was recommended that the employee successfully complete an anger management program before returning to work. The employee then failed to attend two (2) follow-up meetings with the psychologist, although he did attend the investigation meeting.

As a result of his failure to attend the meetings with the psychologist, he was placed on leave without pay. The City alleged that its practice of placing employees on leave with pay during the course of a workplace investigation is “subject to the employee’s cooperation with the investigation”. In this case, because the employee failed to attend the meetings with the investigator, the City alleged that he was not cooperating with the investigation. This led the City to depart from its practice of providing paid leave.

Chair Russell Goodfellow disagreed that the employee was not co-operating with the investigation. In his decision, Chair Goodfellow stated that, “…the City was attempting to utilize the question of paid vs. unpaid leave to attempt to encourage or incentivize the grievor...to attend a treatment program that had been recommended by Dr. Seatter prior to concluding its investigation or deliberations. When the grievor proved unwilling to do so…the City’s option was not to depart from its practice but to bring its investigation and deliberations to an end by making and communicating its disciplinary decision.”

Employers should be careful when deciding what to do with an employee who is the subject of a workplace investigation. Equal consideration should be given when the employer decides to change the employee’s status during the course of an investigation or during the employer’s deliberations.

Employees who feel that they are being treated unfairly during the course of a workplace investigation by their employer may have a valid complaint against their employer.

Tags:  paid leave  workplace investigation 

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