Arbitrator says that an employer owes an employee no duty to investigate reasonably suspected wrondoing

On December 21st, Ontario arbitrator Ian Anderson dismissed a termination grievance brought by an employee who was terminated for bringing personal computing devices into a high-security workplace and downloading significant volumes of unauthorized (and risky) software onto an employer’s network.

The outcome is driven by the facts, but Arbitrator Anderson did deal with an asserted employer duty to investigate suspected wrongdoing. He dismissed the union’s argument that the employer could not charge the grievor with the downloading offence given it did not investigate and discover the grievor’s downloading sooner, at the same time it discovered and disciplined the grievor with excessive internet use. Arbitrator Anderson said:

The Union suggests that an employer has a responsibility to investigate potential misconduct of which it has reasonable suspicion. Put differently, the Union suggests that in order to justify discipline delayed on the basis of earlier lack of knowledge of the alleged misconduct, there must previously have been no reasonable basis to suspect that misconduct.

The Union’s argument, as I understand it, is not restricted to circumstances that might give rise to estoppel. Absent some provision in the collective agreement, I do not agree that there is such a general duty of investigation on an employer. Nor, in my view, is this proposition supported by the cases relied upon by the Union.

General Dynamics Land Systems v National Automobile, Aerospace, Transportation and General Workers Union (Caw-Canada, Local no 27), 2012 CanLII 86240 (ON LA).


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