Top 10 Issues for Employers, #3: Guidelines for Workplace Investigations

This is the third instalment in our Top 10 Issues for Employers series. This issue focuses on guidelines for workplace investigations touching upon key considerations including assessing complaints and witness interviews.

OVERVIEW

Both complaints and workplace investigations should be handled in a fair, objective manner focusing on assessing the facts at hand and avoiding hastily drawn conclusions and whispered conversations at the water cooler. Assessing complaints and performing workplace investigations in a thoughtful, considerate and systematic manner is not only good for the employer’s work environment and employee morale, it is also effective to mitigate risk. An employer who fails to properly investigate a complaint of discrimination may ultimately be liable to the victim under applicable human rights legislation. On the other hand, claims can also arise if an employee is improperly accused of or dismissed because of allegations of wrongdoing that cannot be substantiated. An employer can manage risk by implementing, communicating and enforcing clearly worded policies setting out workplace rules, and conducting thorough and fair workplace investigations into alleged breaches of those rules.
 
KEY CONSIDERATIONS IN A WORKPLACE INVESTIGATION

Assess the Complaint

An employee complaint made pursuant to an employer’s reporting procedures should automatically trigger an investigation. However, where a complaint is quickly determined to be frivolous or vexatious, no further inquiry is required.

An employer should consider who appears to be involved in the events giving rise to the complaint, including current, former and non-employees, and who may have evidence relevant to the complaint. An employer should also determine what kind of wrongdoing is suspected and what laws and employer policies are engaged.

Determine the Objectives of the Investigation

The employer’s objectives in conducting the investigation will depend on the employer’s legal obligations in connection with the complaint and the impact on the business should the complaint be substantiated. For example, the employer will want to consider its obligations under human rights legislation, the potential for criminal prosecution of the employee in question, and the potential for dismissal litigation. In the event that a complaint is substantiated, an employer will generally want to impose some kind of discipline and take steps to avoid similar wrongdoing in the future.

Determine Whether to Involve a Third Party

An employer may wish to retain legal counsel in connection with the investigation, which may, in some cases, protect the findings from disclosure based on solicitor-client privilege. The employer will also have to determine whether the investigation will be conducted in-house or whether to engage an external investigator, possibly one with specialized expertise in areas such as computer forensics or forensic accounting. An external investigator may be perceived as more neutral, while an in-house investigator may have a better understanding of the employer’s corporate culture.

Determine the Status of the Parties

If the complainant does not feel safe or is concerned about reprisals, it may be appropriate to transfer him or her to another area of the workplace, make a change in reporting relationships or provide a paid leave of absence. In extreme circumstances, the complainant may be able to apply for benefits through the employer’s disability program or Employment Insurance. Workers’ compensation benefits may be available to the complainant in very limited circumstances where there has been an acute and traumatic event in the workplace.

In most cases, there should be no change to the working conditions of the subject of the complaint during the course of the investigation, so as to avoid a claim that the employer pre-judged the outcome. However, where the substance of the allegations gives rise to concern for the safety of the complainant and other employees, the employer may consider placing the subject on a paid leave of absence pending the conclusion of the workplace investigation.

Conducting Witness Interviews

Order of Interviews

It is common for the investigator to interview the complainant, followed by any witnesses suggested by the complainant, followed by the subject of the complaint and any witnesses suggested by him or her. However, the facts of a particular complaint may suggest a different ordering. An investigator will generally want to speak to those individuals with direct, first-hand knowledge of the facts at hand.

Best Practices in Interviews

Each witness should be informed that the interview process is confidential and that, depending on the nature of the complaint and the potential for legal proceedings, he or she may be called as a witness. To maintain the integrity of the investigation process and to protect employee privacy, each witness should be provided with only those details regarding the nature of the complaint that are necessary to make the interview meaningful.

It is good practice to ask a witness to review notes taken during the interview by either the investigator or an observer and sign them to indicate that they accurately reflect the discussion that took place. Alternatively, a witness statement may be prepared and presented to the witness to sign at a later date. Witnesses should also be advised to contact the investigator if they have any additional information, corrections or clarifications to make to the facts discussed in the interview.

Since memories fade with time, it is important to meet with witnesses and conduct interviews as soon as possible after the alleged incident or event.

Interviewing the Complainant and the Subject

The investigator will generally want to reassure the complainant that the employer is taking the allegations seriously, and explain that further information is needed to conduct a complete investigation.

The subject of the complaint should be given the opportunity to fully respond to the allegations made. In addition, the investigator should reassure him or her that the complaint is being dealt with in as confidential a manner as possible. Where the complaint concerns allegations of discrimination under human rights legislation, the investigator should deliver a caution that reprisals in response to such complaints are prohibited.

Dealing with Missing Evidence

The investigator should have the ability to review records belonging to the employer, such as employee files, email messages sent to and from the employer’s computer system and expense reports. However, an investigator does not have the power to compel an employee or third party to provide records that belong to them. In addition, the investigator may need to be cognizant of privacy legislation protections that may apply to the collection, use and disclosure of certain information relevant to the investigation.

Where a witness refuses to provide relevant documents without providing a reasonable explanation for such refusal, the investigator may choose to draw an adverse inference against that witness.

Finalizing the Investigation

The investigator’s role is to make findings of fact, including with respect to witness credibility. These factual findings will then allow a determination to be made by either the investigator or the employer, informed by legal advice, as to whether the complaint is substantiated or unsubstantiated, or whether the investigation is inconclusive. The standard of proof used in a workplace investigation is usually the “balance of probabilities”, meaning that it is more likely than not that the alleged misconduct took place. However, it may be advisable for employers to require a greater degree of certainty where the conduct at issue is criminal in nature.

The report produced as the result of a workplace investigation may become evidence in further legal proceedings, such as an employee grievance, human rights complaint or civil action. It is therefore important that the investigation report be carefully drafted.

While the outcome of the investigation should be communicated to the parties, the final report should generally be circulated only amongst the final decision-makers.

Taking Action

If the complaint is substantiated, the employer should take action to:

  • Prevent the harassment, fraud or misconduct from recurring. This objective can often be achieved through training and education of the employer’s employees, which may include counseling for the respondent.
  • Correct the negative impact of the incident on the complainant, for example, by accommodating any requests for transfer, relocation or changes to reporting structure.
  • Discipline the subject of the complaint in a manner proportional to the severity of the misconduct, up to and including dismissal.
If the complaint is not substantiated, the employer should notify the parties accordingly and explain how this conclusion was reached. The relationship between the parties, or the parties and members of management, may have broken down during the investigation and may need to be rehabilitated.

For more information, please contact any member of our Employment & Labour group.

Click here for all issues in the Top 10 Issues for Employers series

Blakes periodically provides materials on our services and developments in the law to interested persons. For additional information on our privacy practices, please contact us at privacyofficer@blakes.com. Blakes Bulletin is intended for informational purposes only and does not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired.

For permission to reprint articles, please contact the Blakes Client Relations & Marketing Department at 416-863-4345 or teona.baetu@blakes.com. © 2017 Blake, Cassels & Graydon LLP