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  • Writer's pictureShelly McLaughlin

Clash Over Investigators: Are Employers Bound to Complainant Choices?

Introduction: Navigating Employee Objections in Workplace Investigations

From an employer's perspective, it's important to recognize that while employee objections to a chosen workplace investigator should be considered, these objections do not obligate the employer to change the investigator, especially if the investigator is qualified and impartial. The case of Erin MacKenzie v Orkestra SCS Inc. (2023 CanLII 13891) serves as a pertinent example in this regard.


Case Study: Erin MacKenzie v Orkestra SCS Inc.

In this scenario, the employer initially appointed a qualified investigator to handle a complaint of workplace harassment. When the employee, Ms. MacKenzie, raised concerns about the investigator's qualifications and potential conflict of interest, the employer took these concerns into account and appointed a second investigator. However, the employee's continued objections to the second investigator were ultimately viewed as premature and unfounded by the Ontario Labour Relations Board.


The Employer’s Discretion in Investigator Selection

This outcome reinforces a key point for employers. While it is crucial to listen to and seriously consider employee feedback regarding the investigation process, this does not automatically necessitate a change in the investigator, particularly if the employer is confident in the investigator's qualifications and impartiality. The OHSA allows employers considerable discretion in how they conduct workplace investigations, including the selection of the investigator.


Upholding Investigative Integrity Amidst Employee Concerns

Employers must ensure that the chosen investigator can conduct a fair and impartial investigation. Suppose the employer is satisfied that the investigator's qualifications are appropriate for the complexity of the complaint and there is no tangible conflict of interest. In that case, the employer is generally within their rights to proceed with the chosen investigator, even in the face of employee objections.


Conclusion: Balancing Responsiveness and Integrity in Investigations

It's a delicate balance to maintain: being responsive to employee concerns while also upholding the integrity and efficiency of the investigative process. Employers must navigate these situations carefully, ensuring that their decisions are grounded in fairness, compliance with legal requirements, and the overall interest of maintaining a safe and harassment-free workplace.

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