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By Kevin MacNeill and Samantha Seabrook What constitutes a 'reasonable' investigation? Meeting the duty to investigate will depend on the circumstances. W hen an employee reports a dubious discrimination claim, do human resources personnel always have to undertake an exhaustive investigation in order to comply with the "duty to investigate" under the Ontario Human Rights Code? Not necessarily, says a recent decision of the Human Rights Tribunal of Ontario in Zienelabdeen v. Best Buy Canada Ltd. The tribunal has historically applied a reasonableness standard when evaluating an employer's investigative actions following a report of discrimination. However, what amounts to a reasonable investigation in this context continues to be defined on a case-by-case basis. Nonetheless, in Zienelabdeen, the tribunal recently confirmed a reasonable investigation is not necessarily an onerous one. Although the test remains the same — reasonableness — this case gives further guidance as to how employers may comply with the duty to investigate when an employee reports he or she has suffered discrimination in the workplace. Zienelabdeen, an Egyptian Muslim, brought an application to the tribunal claiming he experienced discrimination on the basis of his race, creed, ancestry, and place of origin. He alleged Best Buy failed to accommodate his need to attend Friday prayers; his manager discriminated against him by exercising favoritism towards South Asian employees; and he experienced reprisals for raising his concerns about the alleged favouritism with the district human resources manager, which re- sulted in his termination. For its part, Best Buy submitted that Zienelabdeen's performance issues lead to his termination. The evidence showed Zienelabdeen had been placed on a 30-day performance improvement plan just prior to his termination. The tribunal dismissed all of the employee's allegations, finding there was insufficient evidence to support the allegations. As part of his complaint, Zienelabdeen also alleged Best Buy failed to take appropriate steps to respond to and consider his discrimination complaints. The human able, and it had fulfilled its duty to consider Zienelabdeen's discrimination complaint. The vice chairman noted "…the district human resources manager was open to receiving and reviewing the materials submitted by the applicant, forwarded them to legal counsel, and discussed his allegations with legal counsel and her district manager." The tribunal found this was enough to distinguish Best Buy's actions from other cases where the employer simply ignored an employee's allegation of discrimination, and did not take any steps to consider or address the allegations. Zienelabdeen sheds some light on when an employer's investigation of an employee's complaint of discrimination may be said to have been reasonable. It shows that a full and formal investigation may not be required when the person handling the discrimination complaint has knowledge of, and has been involved with, the actions leading to the discrimination complaint. In such a case no further investigation may be necessary, so long as the discrimination complaint was properly considered. resources manager testified she reviewed the material submitted by Zienelabdeen and forwarded it to the company's legal counsel. She then discussed the allegations with legal counsel and her district manager. From her own experience with Zienelabdeen and the individuals involved, and from her involvement in the decision to place Zienelabdeen on a 30day performance improvement plan, the human resources manager concluded Zienelabdeen's allegations of discrimination were unsubstantiated. Legal counsel and the district manager agreed with her assessment, and the company took no further actions to investigate. In deciding this particular issue, the tribunal considered whether Best Buy responded to the allegations of discrimination in a reasonable manner. The tribunal found the company's actions were reason- In such a case no further investigation may be necessary, so long as the discrimination complaint was properly considered. Following the release of Zinenelabdeen, as in other tribunal cases, there is still no fixed list of minimum requirements to satisfy the duty to investigate — apart perhaps from the principle that employers absolutely cannot ignore discrimination complaints or reject them out of hand. However, while the standard for meeting the duty to consider discrimination complaints may continue to remain somewhat of a moving target, employers can take some comfort in the sound common sense expressed by the tribunal in this decision. IH Kevin MacNeill is a partner and Samantha Seabrook an associate with Heenan Blaikie LLP in Toronto. w w w. c a n a d i a n law y er m a g . c o m / i n h o u s E april 2013 • 11

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