If an employer alleges cause for termination and in support of such allegation it relies on the result of an investigation, then must the employer disclose the identities of the persons who complained about the employee? Does the answer change if the complainants were “whistleblowers”, who were permitted to make anonymous complaints and who were promised confidentiality?
In Jarvis v The Toronto-Dominion Bank, 2024 CanLII 62260 (ON SC), Associate Justice Karen E Jolley held that in the circumstances of this case, “the public interest in the correct outcome of the litigation outweighs any interest in protecting the identity of the complainants and other employees who were interviewed or referenced in the complaints and the investigation report.”
Associate Justice Jolley also commented that, “a promise of confidentiality does not protect the communication from disclosure.” Adding, “in some workplace-related scenarios, confidentiality is not something an employer can or should promise.”
What could go wrong in a world where the law not only requires employers to investigate incidents and complaints of workplace harassment, but to also inform the parties in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation? (See Occupational Health and Safety Act at section 32.0.7)
And what of this comment from the court, “An employer that intends to rely on complaints made to it about another employee to support a termination for cause will need to think carefully before assuring complainants that their complaints can and will be kept confidential.” Does that not somewhat contradict the statutory obligation at paragraph (d) of subsection (2) of section 32.0.6 of OHSA, which provides that, the program developed and maintained by an employer to implement its policy with respect to workplace harassment shall “set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law.”
Surely, the knowledge that the complainant’s identity, or at least identifying information, might ultimately need to be disclosed to the subject of the complaint will not have a chilling effect on persons making complaints.
