Conducting an investigation
Employers should proceed cautiously and not expose themselves to liability by cutting corners or prejudging
Mar 22, 2016
By Stuart Rudner
Much has been written about the expanding role of investigations within the context of human resources and employment law. As has been expressed on many occasions (here and here), courts expect that workplace investigations will be conducted thoroughly, fairly and expeditiously.
The investigation must also be objective, and any suggestion an employer made up its mind prematurely or carried out more of a prosecution than an investigation will result in additional liability.
One of the first decisions that will have to be made when an investigation is necessary is whether the investigation will be conducted internally or externally. There are many factors to consider, including the nature of the allegations, the parties involved, the costs and the expertise of those who would be tasked with the investigation internally.
If the investigation is to be carried out by someone within the organization, it is critical that she be trained in the conduct of an investigation, which would include conducting interviews.
In Bakery, Confectionery, Tobacco & Grain Millers International Union, Local 410 v. Canada Bread Company Limited, the company commenced an investigation after allegations were made regarding violence and horseplay within the workplace. The investigation was led by an HR advisor who interviewed the parties and witnesses via telephone rather than in-person.
She took extensive notes of the telephone interviews, but admitted during the arbitration hearing she was aware her notes were inaccurate in some respects.
Not surprisingly, the arbitrator was critical of the conclusion that was reached and of the process of the investigation. While sometimes it may be necessary to conduct some interviews by telephone, this should not be the first choice. The parties in particular, and any key witnesses, should be met in-person as this will allow the investigator to gauge their credibility more accurately.
Any employee accused of misconduct should be provided with a detailed statement setting out the allegations and then provided with a reasonable opportunity to respond to them.
Investigators must interview the primary parties and any witnesses who are identified. Investigators should also review all relevant documents.
Finally, it is insufficient for an investigator to decline to make a finding of fact. Although many cases come down to questions of credibility, it is the duty of the investigator, just like it is the duty of a judge or arbitrator, to resolve those issues one way or the other. In preparing their report, the investigator should reference relevant evidence and then refer to it in justifying the decision that was reached.
In the case referenced above, the employer was unsuccessful largely due to the fact the investigation was clearly flawed. Employers should proceed extremely cautiously when an investigations is required and not expose themselves to liability by cutting corners or prejudging.
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Stuart Rudner is the founder of Rudner Law (RudnerLaw.ca
), a firm specializing in Employment Law and Mediation. He can be reached at firstname.lastname@example.org
, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.