Procedural fairness is the cornerstone of an appropriate workplace investigation. Although the specific requirements of procedural fairness will differ according to the context of the investigation, at its core, procedural fairness requires: an impartial and qualified investigator; a timely investigation; notice of the investigation; the opportunity to respond to contradictory evidence; union or legal representation (where applicable); and the duty to inform a complainant and respondent of the investigative findings and the nature of corrective action taken, if any. A failure of procedural fairness can diminish the legitimacy of an investigation and can result in judges and arbitrators invalidating investigative findings, and overturning corrective actions that result from such findings.
Employers have a legal obligation to protect their employees from, and to conduct an appropriate investigation into, any allegations of workplace harassment and violence. An investigation that fails to meet the relevant threshold of procedural fairness risks exposing the employer to extensive liability and litigation. Though other types of allegations may require different approaches to procedural fairness, the threshold is particularly high in the case of harassment investigations.
The recent Federal Court case, Marentette v Canada (Attorney General), 2024 FC 646 (CanLII) (“Marentette”), sheds light on the importance of procedural fairness in workplace investigations and the negative repercussions when employers fail to provide both complainant and respondent(s) with the right to know and respond to contradictory evidence.
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