Q: My employer is investigating a complaint against me and says I might lose my job for cause if they make a detrimental finding. The complainant is anonymous which is incredibly frustrating. Do I have a right to know their identity?
A: Yes, you have a right to know who has filed an anonymous complaint against you if you are terminated for cause.
Historically, companies have refused to name complainants because of their whistle-blowing protection policies.
These policies were designed to encourage complainants to come forward who may not otherwise do so for fear of reprisal.
However, a recent case in the Ontario courts confirms that employers will be forced to reveal the names of any complainants involved in a workplace investigation when an employee is terminated for cause and the matter proceeds to court.
Recent Ontario Superior Court example
In Jarvis v The Toronto-Dominion Bank, Gordon Jarvis worked at TD Bank and was terminated after his employer received anonymous complaints regarding his alleged misconduct.
Jarvis sued for wrongful dismissal, and TD Bank claimed that he was dismissed for cause, relying on its investigation involving three complaints made by other employees.
A whistleblower involved in this case used a process created by TD Bank that specifically allowed complaints to be filed anonymously.
In June 2021, Jarvis requested to inspect the complaints made against him and the findings outlined in the investigator’s report.
TD Bank delivered each of the requested documents but redacted them to remove identifying information surrounding the complainants, including their names.
Jarvis pushed to receive the unredacted versions.
Court documents stated that “the law is clear that documents incorporated by reference into a pleading, such as the ones in question, are not to be redacted, as the entire document is deemed relevant by operation of law. It is also impermissible to redact portions of a relevant document on the basis that those portions are not relevant.”
Associate Justice Jolley explained that the court can allow information to be redacted if disclosure can cause considerable harm, serves no legitimate purpose in resolving the issue at hand, or would infringe public interests deserving protection.
She also found that the Personal Information Protection and Electronic Documents Act does not bar disclosure in this case, as the act permits disclosure without the knowledge or permission of the individual when complying with the rules of the courts.
While TD Bank attempted to argue that disclosure may be harmful and may also damage trust between the bank and its employees, Associate Justice Jolley found that TD Bank did not prove that to be the case.
There was also no proof that would suggest the complainants would continue to fear reprisal.
The complaints were the centre of the entire case, which made all details relevant and important.
As a result, in July 2024, TD Bank was ordered to produce the unredacted documents for review.
Key takeaway
The promise of anonymity is not always guaranteed and does not always protect communications from disclosure.
In fact, in some workplace scenarios, confidentiality is not something employers should or can promise.
As an alternative, the employer could have relayed the complaints to the employee or terminated them without cause.
If you find that you are terminated over anonymous complaints made against you, your employer should detail the nature of the complaints and who made them.
If you find that the complaints are unfounded, you can sue for wrongful dismissal and seek disclosure of the identities of the complainants if your employer refuses to produce them prior to termination.
