In a decision earlier in 2012, Vernon v. BC Liquor Distribution Branch the BC Supreme Court highlighted the importance of fair and impartial investigations into employee misconduct. Although this did not involve a unionized employee, the court's comments are applicable. The court's criticism of the investigation process speaks for itself and starts at paragraph 278 of the decision:
[278] The investigation was flawed from beginning to end. It was neither objective nor fair.
[279] Because of her prior dealings with Ms. Vernon, Ms. van der Boom should not have conducted it. Once she concluded the Complainant was credible, Ms. van der Boom lost all objectivity. She became the prosecutor, not the objective investigator. She added Ms. Catamo-Meyer to the March 9 List because she believed she would provide damaging information. She did not bother to interview Ms. Chan who both the Complainant and Ms. Vernon stated witnessed two of the incidents. Her oral reports of her interview with Ms. Vernon are inaccurate and misleading. She told Ms. Ferrara and Mr. Branham that Ms. Vernon was denying all allegations when her notes of the meeting clearly show otherwise. The Recommendation Memo is replete with inaccuracies.
[280] Ms. van der Boom is, however, not alone in rushing to judgment. Within 48 hours of being asked to investigate, Mr. Sethi had recommended Ms. Vernon’s dismissal. He made his recommendation based on his interviews, the March 1 Letter and the information he was given that Ms. Vernon did not acknowledge any wrongdoing. He knew that Ms. Vernon had no opportunity to respond to the information developed in the interviews. He knew that he had asked few questions concerning the specific allegations in the March 1 Letter.
[281] Similarly, Mr. Branham, Mr. Zelenika and Ms. Ferrara were prepared to terminate a 30-year employee with a spotless record based on Mr. Sethi’s report. Mr. Zelenika and Ms. Ferrara both knew that Ms. Vernon was upset at the March 25 interview, yet they blindly accepted without question that she had denied all the allegations.
[282] If this was an administrative law case, the LDB’s decision to terminate Ms. Vernon would be quashed as a breach of natural justice. This is, however, not such a case. Although Ms. Vernon is a public sector employee, public law duties of procedural fairness do not apply. Ms. Vernon’s relationship with the LDB is contractual. Her claim must be decided on the principles that govern all private law employment relationships: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Regardless of the flaws in the investigation, if the LDB had cause they were entitled to dismiss Ms. Vernon without notice
The court found that the employer had no cause to dismiss Ms. Vernon and awarded her 18 month's salary in lieu of notice. The court went further and awarded $35,000 in aggravated damages and $50,000 in punitive damages against the Liquor Distribution Branch.
[278] The investigation was flawed from beginning to end. It was neither objective nor fair.
[279] Because of her prior dealings with Ms. Vernon, Ms. van der Boom should not have conducted it. Once she concluded the Complainant was credible, Ms. van der Boom lost all objectivity. She became the prosecutor, not the objective investigator. She added Ms. Catamo-Meyer to the March 9 List because she believed she would provide damaging information. She did not bother to interview Ms. Chan who both the Complainant and Ms. Vernon stated witnessed two of the incidents. Her oral reports of her interview with Ms. Vernon are inaccurate and misleading. She told Ms. Ferrara and Mr. Branham that Ms. Vernon was denying all allegations when her notes of the meeting clearly show otherwise. The Recommendation Memo is replete with inaccuracies.
[280] Ms. van der Boom is, however, not alone in rushing to judgment. Within 48 hours of being asked to investigate, Mr. Sethi had recommended Ms. Vernon’s dismissal. He made his recommendation based on his interviews, the March 1 Letter and the information he was given that Ms. Vernon did not acknowledge any wrongdoing. He knew that Ms. Vernon had no opportunity to respond to the information developed in the interviews. He knew that he had asked few questions concerning the specific allegations in the March 1 Letter.
[281] Similarly, Mr. Branham, Mr. Zelenika and Ms. Ferrara were prepared to terminate a 30-year employee with a spotless record based on Mr. Sethi’s report. Mr. Zelenika and Ms. Ferrara both knew that Ms. Vernon was upset at the March 25 interview, yet they blindly accepted without question that she had denied all the allegations.
[282] If this was an administrative law case, the LDB’s decision to terminate Ms. Vernon would be quashed as a breach of natural justice. This is, however, not such a case. Although Ms. Vernon is a public sector employee, public law duties of procedural fairness do not apply. Ms. Vernon’s relationship with the LDB is contractual. Her claim must be decided on the principles that govern all private law employment relationships: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Regardless of the flaws in the investigation, if the LDB had cause they were entitled to dismiss Ms. Vernon without notice
The court found that the employer had no cause to dismiss Ms. Vernon and awarded her 18 month's salary in lieu of notice. The court went further and awarded $35,000 in aggravated damages and $50,000 in punitive damages against the Liquor Distribution Branch.
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