We regularly are asked by our employer clients, if an employee makes a complaint and then quits, should we still investigate? Looking into complaints can be messy and stressful, so it is tempting to decide you are off the hook. What about if a complaint of harassment, bullying or discrimination is made by someone who has quit against someone who is still employed? Here are four reasons why the answer is yes, you need to investigate:

  1. To uncover festering issues.

An investigation may uncover poor leadership, or a “bully” that has gone under the radar for some time. Consider the scenario where a young, short-term employee had handed in his resignation and a complaint about bullying by his supervisor. An investigation after he left unearthed issues with the supervisor that had been experienced by others for over 3 years, with no one coming forward. This supervisor had caused disengagement, lack of productivity and a string of resignations.

  1. To comply with obligations under Health and Safety legislation.

There is an obligation for employers under the B.C Worker’s Compensation Act, to maintain a harassment-free workplace. The WorkSafe BC website has FAQ’s to explain how WorkSafe BC will handle a complaint of harassment and when they will contact the employer. In short, WorkSafe BC will ask an employer to investigate a concern, and WorkSafe BC will want to ensure that the employer has a harassment policy, and follows it.

  1. To comply with obligations under the Canada Labour Code.

For federally-regulated organizations, under recent changes to the Canada Labour Code that came into effect January 1, 2021, there is a requirement to investigate concerns raised by former employees that are made known to the employer within three months after the day on which the former employee ceased to be an employee. The Minister may extend that time period if the former employee demonstrates that they were not able to bring the concern forward within that time frame because of trauma as a result of the occurrence or because of a medical condition.

  1. To comply with obligations under Human Rights laws.

The Canadian Human Rights Tribunal issued a decision finding an employer liable for harassment experienced by former employee at the hands of a current employee. In Duverger v. 2553-4330 Québec Inc. (Aéropro), 2019 CHRT 18 (CanLII), the Tribunal considered harassing emails by an Aéropro employee, via his personal email address, to a former employee. The emails were highly offensive and full of hatred. One of the questions before the Tribunal was whether this constituted harassment “related to employment” considering it took place after the victim’s employment had ended. The Tribunal ruled there was enough connection to the workplace in the relationship, and that the email address used for the harassing emails, though personal, had been regularly used by the respondent employee for workplace matters. The Aéropro managers who were aware of the harassing emails were found to not have done enough to investigate the issue or prevent it. The company was found responsible for the harassment.

It is important to note that the Canadian Human Rights Act applies only to federally-regulated employers. Each province has its own human rights laws and the result of a case such as this one may vary depending on the text of the provincial legislation. It will be interesting to see if the decision in Duverger will be followed by provincial Tribunals.

What if the complaint is made by a current employee about a former employee?

You may still have an obligation to investigate a complaint about a former employee for many of the same reasons stated above. WorkSafe BC may require an investigation. However, you may be faced with these practical issues:

You can’t reach the former employee (respondent). If they refuse to speak to you about the complaint, there is not much you can do. Employment obligations mandating cooperation in an investigation no longer apply to a former employee. An investigation is not yet a legal proceeding for which the employer could use a subpoena. You may find yourself unable to conduct a full investigation, left only with the complainant’s side of the story, from which you would have to make decisions.

The complainant may end up dropping the complaint. Good news, right? Depending on the circumstances, the complainant may realize over time that once the respondent leaves the organization, things improve. I once investigated a concern by a complainant who kept bringing issues related to a former executive who was no longer with the organization. At the heart of her concerns was the need to be heard, and the need to ensure no one else would go through what she did. She was also very concerned that HR had not done enough at the relevant time. It was only when she felt that she had been heard that she agreed that the complaint was over.

The bottom line is that even if one of the employees involved in a complaint has quit, employers still need to look at the situation carefully as an investigation may be needed.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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