Human Rights Tribunal And The Duty To Investigate

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Andrew Scaduto was employed by the Insurance Search Bureau of Canada (ISB) for fewer than four months. His employment was terminated for poor performance. There had been numerous discussions and offers for additional training to help him improve. At his termination meeting, his employer was informed that Scaduto believed his performance was scrunitzed after he revealed that he was gay. The ISB did not launch a formal investigation, as this information was only revealed post-termination.

 

The following issues were brought before the Human Rights Tribunal:

  1. Does the ISB have a duty to investigate post-termination, even when discrimination is not found?
  2. Had the ISB violated the Human Rights Code through discrimination on the basis of sexual orientation?
  3. Had the ISB violated the Human Rights Code through failure to investigate the claim?

 

Prior tribunal decisions held that an employer could be liable for damages for failure to investigate even if there was no discrimination found.  Other cases stated the duty to investigate could outlast the employment relationship and the employer would have an obligation to investigate post-termination.

 

  1. Scaduto was not successful in his claim, The Tribunal found no evidence of discrimination.
  2. The tribunal found that The ISB did not have a duty to investigate a complaint absent of discrimination.
  3. Therefore, the IRB had not violated the Human Rights Code through failure to investigate, since failure to investigate did not deprive him of a workplace free of discrimination. He had already been terminated.

 

It is important to note that although the OHRT is helpful for employers during investigations, it should not relieve them of their duty to investigate. Internal investigations provide employers with an opportunity to remedy the discrimination and prevent applications from progressing.

 

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