No accompaniment required (Toughest HR Question)

There is no general right for employees to be accompanied by a legal or other representative in meetings with employer
By Brian Kreissl
|Canadian HR Reporter|Last Updated: 10/23/2012

Question: Are there any legal requirements stating an employer must allow an employee to be accompanied by a legal or other representative during a meeting with the employer? We are a non-union employer dealing with an alleged incident of borderline harassment.

Answer: Other than in the case of unionized employees, I am not aware of any general legal obligation stating employers must allow third-party representation of employees at such meetings (the situation is of course different with respect to unionized employees, who are generally entitled to be accompanied by a union representative in such circumstances).

A workplace investigation, disciplinary hearing or performance coaching session — or even a termination meeting — is not a court proceeding, nor is it akin to a situation where someone is being questioned by the police. As such, beyond the labour relations context, there is generally no right to legal representation (or any other type of representation) at internal meetings with an employer.

Civil versus criminal

Even if police are involved in something like an investigation of a complaint relating to an alleged incident of workplace violence or harassment, from the employer’s perspective, the investigation is not a criminal proceeding. While police will conduct an investigation, the employer’s investigation generally would not be the subject of criminal charges (although, aside from confidentiality concerns, evidence gathered in the course of a workplace investigation could conceivably be handed over to the police).

Because employment law is a civil matter, proof beyond a reasonable doubt is not required. Therefore, other than in situations relating to criminal or quasi-criminal charges such as those under occupational health and safety legislation, employers are generally entitled to rely on proof which satisfies the civil standard of “on the balance of probabilities.” This standard of proof is sometimes referred to as “50 per cent plus one.”

Theoretically, this means if evidence shows someone was more likely than not to have been guilty of misconduct amounting to just cause for dismissal, the employer would be entitled to rely on such evidence in terminating the employee. (Whether a court would agree with the employer or not is another matter.)

Court proceedings

The situation is, of course, different where meetings with an employer are part of formal proceedings before a court or tribunal. Examples include examinations for discovery, pretrial settlement discussions or court-appointed mediations. Employees are generally entitled to be accompanied by their lawyers at such meetings.

Employers should also be cautious when asking workers to sign a termination settlement, waiver or any disciplinary document such as a warning letter or performance improvement plan (PIP). In order to avoid being declared invalid by a court, employers should allow employees to obtain independent legal advice before signing such documents. In fact, some organizations even pay for employees to obtain legal advice before signing.

Bad faith damages

While there is no legal requirement to allow legal or other representation at meetings with employers other than in the situations mentioned above, there is the possibility of a court awarding bad faith damages to an employee as part of a wrongful dismissal action based on the manner of the dismissal itself.

Another relevant issue relates to shoddy, biased or non-existent workplace investigations, which courts generally take a very dim view of.

Because of these concerns, many employers actually allow employees to be accompanied by a representative (such as a colleague, spouse, lawyer or paralegal) at certain meetings with the employer. This is generally recognized as a best practice and is sometimes documented in an organization’s employment policies relating to workplace investigations or disciplinary proceedings.

It is also important to have documented and enforced policies and procedures relating to the conduct of workplace investigations. Other suggestions include documenting and developing internal dispute resolution mechanisms and escalation protocols, and establishing an employee ombudsman function.

Brian Kreissl is the managing editor of Consult Carswell. He can be reached at brian.kreissl@thomsonreuters.com. For more information, visit www.consultcarswell.com.

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