May 19, 2017
Investigations are a vital – but difficult – part of workplace management. The value of a proper investigation can’t be overstated: it plays a pivotal role in the imposition of discipline (and any subsequent challenge to such discipline) and provides an important safeguard to employees’ right to procedural fairness. An employer that conducts an improper (or no) investigation leaves itself exposed to potential liability and other negative consequences, including a successful claim for punitive damages, human rights complaint(s), civil legal action or grievance. An effective and fair workplace investigation results in a solid conclusion based on which the employer can take decisive and appropriate action – and preclude negative consequences down the road.
Here are five key steps to conducting a proper workplace investigation.
1. Procedural Fairness
An employer is bound by principles of procedural fairness in imposing discipline, and this generally entails an obligation on the employer to investigate the circumstances before disciplining an employee. Generally, an employer should carry out a workplace investigation whenever there is or may be some form of employee misconduct or inappropriate workplace behaviour – like bullying or harassment (sexual harassment or otherwise) or workplace drug use – including when there’s a complaint under the applicable workplace harassment policy or a law (such as applicable occupational health and safety, human rights and/or employment standards laws). The employer’s broad objectives in such an investigation are the opportunity to get the facts straight before confronting the employee(s), give the employee an opportunity to present their version of events and/or explain their conduct, and ultimately verify whether discipline is warranted and if so, the surrounding circumstances (including mitigating or aggravating factors) to assist it determine the appropriate discipline. Every effective workplace investigation, regardless of its nature, must embrace four overarching principles:
Neutrality. Investigators must not have a personal stake in the outcome of the investigation or pre-judge the issue.
Fairness. Employers have a duty to conduct workplace investigations in a fair and impartial manner. “Fairness” depends on the circumstances of each investigation, but at a minimum, all parties involved must have the opportunity to provide all relevant information and to have the investigator consider it.
Thoroughness. Uncover all information necessary to make the proper decision and to ensure that conclusions are supported.
Timeliness. Act promptly to avoid further acts of wrongdoing and impose discipline in a timely manner or risk a successful challenge in a court or arbitration.
Implementing a systematic investigation framework helps ensure the overarching investigation principles are respected and the investigation is properly conducted.
Objective. Ensure both the organization and the investigator are clear about its objective from the outset. This guides the investigator’s work and reduces the likelihood the investigation will deteriorate into a fishing expedition and avoid wasted time and resources.
Scope. Determine the scope of the investigation early: limited to factual findings, extends to drawing conclusions and includes recommendations for employer action.
Timing. Over time, memories fade and documents are lost: start and complete the investigation as soon as possible, but strike a balance between a speedy investigation and a thorough one.
Investigator. Promptly decide whether an internal or an external investigator will conduct the investigation. A “staff” investigator can investigate simple and straightforward complaints and avoid incurring costs associated with retaining an external investigator. The employer can retain an external investigator where there’s no internal investigator or the scope or the nature of the investigation makes it appropriate, for example where the issues are complex, the allegations are serious, or there’s a concern with respect to an internal investigator’s neutrality.
3. Preliminary issues
The investigator and employer should address any preliminary issues before embarking on the investigation interviews.
Assessment. Assess the complaint by considering its nature, who’s involved, and what workplace policies come into play. The employer should also assess the interim employment status of both parties; if the complainant doesn’t feel safe in the workplace, consider transferring them to another area in the workplace or to granting a leave of absence; if the nature of the alleged misconduct causes concern for the safety of others, consider placing the respondent on a paid leave of absence during the investigation.
Employee Concerns. Often, one or more involved employees is reluctant to participate in an investigation. There are a host of concerns they might raise, but ultimately the employer has an obligation to investigate workplace misconduct – and generally the right to insist its employees co-operate, and to (reasonably) discipline an employee for refusing to cooperate (but give them an opportunity to comply first).
Disclosure. Individuals involved are entitled to differing degrees of disclosure before they are interviewed as part of the investigation:
Privacy. Courts (or arbitrators) evaluating an investigation attempt to balance the employees’ privacy interests against the employer’s legitimate business interests so both the employer and the investigator must be cognizant of any privacy rights and act accordingly. The parties have a right to privacy and confidentiality; the more sensitive the subject-matter, the more care an employer should take to protect these rights. But there are limits because it’s necessary to share certain information during the investigation for the process to be fair and thorough, such as the respondent’s right to know the particulars of the case made against them, particularly in a formal harassment investigation. The investigator and the employer must, however, handle the complaint and the investigation in a confidential manner and make every effort to avoid unnecessary, and perhaps inadvertent, disclosure, only sharing information about the facts of the investigation – particularly names of those involved and the subject matter – with those who need to know.
The interviews are often the most crucial stage of the investigation because the investigator typically obtains most of their information here, and has the opportunity to assess the witnesses’ credibility.
Preparing. Advance preparation is key to an interview that yields useful and credible evidence to aid in the investigation:
Conducting. Conduct the interviews as soon as possible, while memories remain fresh.
5. Finalize the Investigation
Complete the investigation – conduct all necessary interviews and obtain all relevant documents – as soon as possible:
Factual Findings. The investigator’s primary role is to make findings of fact that lead to a conclusion. Often, the employer will draw the conclusion and/or decide the appropriate course of action based on the investigator’s findings of fact, though the investigator might do so if directed by the employer. Factual findings in an internal investigation are based on a “balance of probabilities” standard: based on all of the evidence is it “more likely than not” (greater than a 50% chance) the alleged fact actually happened? Consider factors like parties’ and witnesses’ demeanour and credibility, any corroboration, and the adequacy and consistency of the facts the parties and witnesses allege.
Outcomes. There are three typical outcomes of an investigation: substantiated (the preponderance of the evidence substantiates the conduct or the complainant’s allegation(s)), not substantiated (the preponderance of evidence supports the view that the conduct or complainant’s allegation(s) couldn’t have happened and/or is without a reasonable basis); and inconclusive (the conduct or allegation(s) may have happened but the preponderance of evidence fails to prove they occurred).
Report. It’s sometimes appropriate for the investigator to prepare a report. Regardless of its form and remembering it could become evidence in further legal proceedings, the report should: present all the relevant information identified during the course of the investigation; analyze it; and contain findings of fact and, if the investigator is charged with making a determination, their conclusions. The employer is generally not obligated to providing a copy of the final report to the parties or to anyone else, and ideally circulate it only among the final decision-makers to protect confidentiality and the possibility that it’s privileged and not subject to disclosure in any legal proceeding.
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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