What should HR do with an alleged harasser during the investigation?

One leading employment lawyer says it’s an often-asked question that leaves HR stumped – but one recent case is offering advice.

What should HR do with an alleged harasser during the investigation?
An employee has been accused of harassment and an investigation is underway – but what should HR do with the worker who’s facing the allegations? It’s a question that leading employment lawyer Kelsey Orth is often asked – here, he goes over a recent case which offers valuable guidance:

Since Bill 168 changes to the Occupational Health and Safety Act took effect in 2009 with respect to violence and harassment in the workplace, we have seen an increase in the number of workplace harassment investigations. 

While every organization has its own policies and procedures for conducting such investigations, one common question we get from employers is: “What do I do with the alleged harasser during the investigation?” 

While a common tactic is for the employer to remove the potential respondent from the workplace in order to conduct the investigation without concern for escalation or other complications, this approach has recently been questioned as triggering a constructive dismissal. 

However, the case of Pierro v. The Hospital for Sick Children provides confirmation that this is indeed still a legally-valid approach.

In this case, the alleged harasser was a doctor at the Hospital for Sick Children in Toronto (the “Hospital”); in addition to his role as a pediatric surgeon Dr. Pierro was also Head of the Division of General and Thoracic Surgery and became the Director of the Training Program in 2013.

In his combined roles at the Hospital, Dr. Pierro had supervisory authority over a number of employees including both physicians and administrative staff.  In 2015, a litany of complaints emerged regarding Dr. Pierro’s treatment of staff, and, after an initial inquiry involving interviews with employees and Dr. Pierro, the Hospital determined that an independent investigation was necessary. 

As a first step to the independent investigation, and to ensure that evidence “could be gathered fairly and freely without accusations of interference,” the Hospital suspended Dr. Pierro from his leadership and administrative roles while maintaining his full pay, clinical, research and teaching roles during the course of the investigation.

In addition to filing an appeal of his suspension Dr. Pierro also filed for an injunction in Superior Court seeking to prohibit the Hospital from suspending him while his appeal at the Health Professions Appeal and Review Board was heard.  Injunctions are only granted when each of the following three conditions are met:
  1. Is there a serious question to be tried on the merits of the case?
  2. Would the applicant suffer irreparable harm that cannot be compensated bydamages if the application is refused?
  3. Which party will suffer the greater harm from the granting or refusal of the remedy pending a decision on the merits?
In the circumstances, Justice Akhtar found that the request for injunction failed at the very first step, because it did not disclose a serious question to be tried.  While he also found that Dr. Pierro did not meet either of the other criteria, it was the failure to meet the first criterion that is instructive for employers, since Dr. Pierro’s argument was based on an alleged breach of his employment contract: because his employment contract did not expressly permit the Hospital to suspend him, he claimed that the fact that it did so amounted to constructive dismissal.

In rejecting this argument, Justice Akhtar distinguished between a disciplinary suspension and an administrative one, citing the Supreme Court of Canada who said that “[The] residual power to suspend for administrative reasons because of acts of which the employee has been accused is an integral part of any contract of employment…”. 

However, as was noted by Justice Akhtar, again citing the Supreme Court of Canada, there are conditions attached to an employer’s ability to impose an administrative suspension:
  1. the action taken must be necessary to protect legitimate business interests;
  2. the employer must be guided by good faith and the duty to act fairly in deciding to impose an administrative suspension;
  3. the temporary interruption of the employee's performance of the work must be imposed for a relatively short period that is or can be fixed, or else it would be little different from a resiliation or dismissal pure and simple; and
  4. the suspension must, other than in exceptional circumstances that do not apply here, be with pay.
While this case is clear affirmation that administrative suspensions are legally permissible, it is important to note that the manner of imposing or carrying them out may be subject to scrutiny.  It is therefore imperative to address all relevant criteria when undertaking a workplace investigation: the lawyers at CCP can assist you to make sure you are covered from all angles.  For a list of our lawyers with special experience in workplace investigations, click here.

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