In early July 2024, the Toronto-Dominion Bank was ordered to produce an unredacted workplace investigation report, and the related complaints, in a wrongful dismissal claim.
At issue in Jarvis v The Toronto-Dominion Bank, 2024 CanLII 62260 (ON SC) was whether participants interviewed as part of a workplace investigation should be afforded confidentiality when the workplace investigation became relevant in a legal proceeding.
In this decision, the Toronto-Dominion Bank argued they had cause to fire Mr. Jarvis because of the findings of a workplace investigation, and the public interest and privacy required the names of the participants in the workplace investigation to remain confidential. The judge didn't agree and held that:
- Confidential information from an employee connected to their employment is not protected from disclosure in a court proceeding because the public interest in the proper administration of justice outweighs the public interest in upholding claims of confidentiality and privilege.
- Privacy law is not a bar to disclosure in a court proceeding because such disclosure is permitted by the applicable law.
In light of this decision, and a May 2024 decision in a BC medical negligence claim, Homan v Nemanishen, 2024 BCSC 735 (CanLII), that confirms privilege is waived when documents are referenced in pleadings, here are some key takeaways for employers and workplace investigators:
- Don't promise confidentiality if the facts of the
termination are likely to end in front of a judge or
arbitrator
While it doesn't happen often, employers should be prepared to have their workplace investigation reports seen by a judge or arbitrator if they choose to rely on the report when terminating an employee. Since the Court in Jarvis says that workplace investigation reports aren't to be treated differently from the employment contract, or other relevant employment relationship documents, it is important to inform workplace investigation participants that if the subject matter of the investigation leads to legal proceeding there is the possibility that their information will not remain confidential.
Similarly, the court in Homan confirms that relying on solicitor client privilege because a lawyer has been engaged as the workplace investigator will be difficult since choosing to rely on the workplace investigation report in legal proceedings will be considered a waiver of solicitor client privilege. - Privacy law is important however disclosure in court
proceedings is more important
In Jarvis, the employer sought to protect the names of the participants through arguments about the application of the Personal Information Protection and Electronic Documents Act, however the court was unpersuaded since the act allows disclosure to the court of personal information without the knowledge or consent of the employe in order to comply with rules of court relating to the production of records. While employers should always be aware of the information they are collecting about their employees and under what circumstances privacy law allows them to share it, it is important to remember that employers aren't allowed to use privacy law as a shield when there are legal proceedings. - Employers have a choice about how they terminate an
employee
In both Jarvis and Homan, a choice was made to rely on documents that contained confidential and privileged information to justify actions taken. That choice meant the contents of the documents needed to be produced to the court so the could could determine if the actions were justified. An employer can avoid this choice by weighing the desire to terminate for cause with the costs of a wrongful dismissal litigation, including the the costs of the workplace investigation report being made public.
Workplace investigations seldom contain "gotcha" findings of fact so employers should consider other options like progressive discipline when conduct breaches harassment and discrimination policies.
If you are an employer who needs a workplace investigation or is considering terminating an employee because of the findings of a workplace investigation consider contacting a trust legal advisor, like the lawyers at KSW, to help evaluate the legal risks of the options available to you.
BC Human Rights Tribunal Update – Employers can
raise their defence when applying to dismiss
In May 2024, the BC Human Rights Tribunal decided that Telus Employer Solutions (TES) was reasonably certain to prove that any discriminatory conduct that might be proven at a hearing was justified. In McNeil v. Telus Employer Solutions (TES) (No. 2), 2024 BCHRT 166 (CanLII), the Tribunal considered both the Complainant's and the Respondent's respective points of view when deciding if there was no reasonable prospect that the complaint would succeed. Its consideration was guided by analysis from the BC Supreme Court, following the Complainant's successful judicial review of an earlier decision to dismiss the complaint.
THE FACTS
Events at issue in this case date to 2018 when Ms. Dawn McNeil was working at TES as an employee with a series of temporary employment contracts and had asked to take advantage TES's work from home policy called "Work Styles Program" due to environmental sensitivities/allergies. The default at TES was a "work from office standard" and eligibility to work from home involved an assessment of individual circumstances, job performance and function, mobile readiness, and space availability. In denying Ms. McNeil's request to work from home, TES considered the eligibility requirements before declining to allow her to work from home. In considering whether TES could defend that decision e.g. whether it had a bone fide occupational requirement for Ms. McNeil to be in the office, the Tribunal had to consider TES' evidence about:
- The work from office standard, and how it was rationally connected to the performance of the job.
- The adoption of the work from office standard, for instance was it adopted in good faith and in the belief that it was necessary to fulfill a legitimate work-related purpose.
- Whether the work from office standard was reasonably necessary to accomplish the legitimate work-related purpose, in the sense that the employer could not accommodate people sharing Ms. McNeil's protected characteristics.
When the evidence was considered, the Tribunal concluded that TES was reasonably certain to prove at a hearing that it had a bone fide occupational requirement for not allowing work from home on the facts.
EMPLOYER TAKEAWAYS
- Employers have a duty to accommodate employees with a disability (visible or not) so consider what policies you are seeking to apply when accommodating employees with a disability. If those policies aren't rationally connected to work performance, have not been updated recently, and/or no longer accomplish a work-related purpose, then don't use them to justify rejecting an accommodation request.
- If your company is faced with a complaint that you did not properly accommodate an employee, review the policies you applied in that case, and articulate how they are a bone fide occupational requirement, so that at the earliest opportunity (usually an application to dismiss) you can articulate why the decision not to provide the requested accommodation was justified.
- When an employee asks for accommodations in the workplace, consider reaching out to a lawyer early since legal advice early in the process will assist in minimizing the risk of a legal proceeding later on.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.