A workplace investigation does not end the employer's responsibility, write Howard Levitt and Annie Yu. Photo by sabthai/stock.adobe.com

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There is a persistent assumption in employment law that, once a workplace complaint has been investigated, the matter is over.

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An employee complains. The employer hires an outside investigator. The investigator prepares a report. Discipline is imposed, if necessary, and everyone moves on.

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Except that everyone may not move on.

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A recent Ontario Labour Relations Board decision, Braganza v. Randstad Canada, is an expensive reminder that the consequences and costs of a workplace complaint can continue long after the investigation has formally ended.

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The case illustrates a point employers sometimes overlook: terminating an employee who has made a protected workplace complaint can constitute reprisal if the employer cannot establish that the complaint played no role whatsoever in the decision.

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The complaint need not have played a substantial role. The Board held that, even where an employer has legitimate reasons for termination, if the protected activity was a factor in the decision, “no matter how small,” it violates Section 50 of the Occupational Health and Safety Act (OHSA).

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The price for Randstad was significant.

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The applicant in the case was an operations manager at Randstad. In June 2022, she made a workplace harassment complaint involving several colleagues.

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Randstad retained an experienced external investigator who conducted an investigation and prepared a detailed report.

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The investigation became part of the problem.

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The investigator initially identified allegations by the applicant involving two employees. But after discussions with Randstad, they proceeded against only one. The applicant was not told that the second employee had been removed. Instead, she received a one-page summary stating that disciplinary action was taken.

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The applicant later raised concerns that she might face retaliation and requested a transfer. She was told that no equivalent positions were available.

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After returning from medical leave, she experienced significant changes to her employment. Former peers were promoted above her. She lost her previous clients and was left with a less productive portfolio. On March 31, 2023, she was dismissed.

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The stated reason was organizational restructuring. During the litigation, Randstad also relied on performance concerns.

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There is nothing inherently improper about either explanation. Employers are entitled to restructure, and they are entitled to terminate employees whose performance is genuinely inadequate. Filing a workplace complaint does not create permanent job security.

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Section 50 of the OHSA changes the evidentiary equation. Once an employee has made a protected complaint, the employer bears the burden of establishing that the adverse employment action was not retaliatory.

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The Board accepted that Randstad had undergone restructuring. It also acknowledged that the applicant may have struggled with aspects of her job.