Hamilton workers caught in the act

Investigations of misconduct need to be done properly, say experts
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 02/22/2013

They were supposed to be doing roadwork, using asphalt to fill in the many potholes.

But a monitoring system raised a red flag, and an investigation involving GPS tracking and surveillance showed a group of City of Hamilton workers was allegedly engaged in less strenuous activities such as coffee shop visits, downtime at home and personal errands. As a result, 29 workers were fired and two were suspended for 30 days.

“We had a couple of examples of when they were busting a half-an-hour per day, which is blatantly unacceptable. We’ve got to get value for the taxpayers’ dollar and we’re providing value, so they lost their jobs over it,” said Coun. Lloyd Ferguson, chair of the city’s public works committee, in a CBC article.

This kind of incident is not at all uncommon, according to experts, but it’s important for HR to deal with the problem —and the subsequent investigation — effectively.

“The whole issue of theft from employers is massive,” said Mark Lalonde, a director in the risk solutions division at CKR Global in Vancouver. “It’s astonishing what employees will steal, so it’s incredibly common for employers to call in an investigation company.”

Whether it’s embezzlement or a $40,000 tire from a truck in the oilsands, surveillance can provide answers and evidence. But while any kind of employee can engage in misconduct, it’s rare to see large groups
involved, he said.

“A group of 30 is not the norm… that large a group would suggest to me it’s been going on for a long time and become an institutionalized norm for that work group,” said Lalonde.

HR should be most concerned when groups are involved as they can seriously undermine morale and change organizational culture to the point where the problem can require extensive effort and be costly to correct, according to Taras Hryb, president of Private Investigators’ Association of British Columbia (PIABC) in Vancouver.

“The end result is it becomes almost pervasive within the organization, almost accepted practice,” he said. “Those that are influenced by what’s going on tend to either participate in a minor way or become more active; the problem grows and the end result is it becomes much more expensive to deal with.”

What’s allowed

There are a few ways to combat the problem, such as more effective pre-employment screening and a confidential reporting line, said Lalonde.

“It’s a way for the employer to ensure senior management or leaders are not doing something that’s going to embarrass the firm on the front page of the Globe and Mail or cause some other form of loss to the company,” he said. “The question becomes not just that front-line employees did something, but where was the oversight, where was the supervision, where was the management, where was the training?”

And when it comes to investigations, there is plenty of legislation and common sense guidelines that ensure privacy and respect for basic rights, according to Lalonde, such as filming in places of worship or school grounds, or using a telephoto lens to peer through a window.

“There are very strict guidelines followed by investigators — these aren’t cowboys out there cutting corners,” he said. “There’s significant liability for the investigation firm if they fall outside accepted norms and practices, so it’s a very well-regulated industry.”

Employers don’t necessarily have to have a suspicion, as surveillance can also ensure quality service, such as a fake customer visiting Starbucks locations, said Lalonde.

“It’s a way to make sure that if you have a distributed workforce, they’re doing what you need them to be doing to retain your business.”

GPS is also acceptable and often can be a safety issue — and liability issue — as the tracking systems can issue an alert if employees’ work vehicles are lost or being used improperly, such as excessive speeding, he said.

When it comes to disputes involving GPS devices, employers have prevailed for the most part, according to Daniel Michaluk, a partner and chair of the information management and privacy practice group at law firm Hicks Morley in Toronto.

“Most decisions will say it collects a kind of personal information that is not very sensitive,” he said. “So they’re likely to allow it for what would be called routine fleet management purposes.”

But once an employer has the GPS tracking information, there’s an issue about what to use it for.

“(With) any type of technology, there’s an aversion to using it in place of regular supervision. What that shouldn’t be confused with is use of information in the course of a legitimate investigation,” said Michaluk. “If there’s a legitimate investigation, employers ought to be able to go in and shouldn’t be precluded from going in and getting the information.”

On the other hand, video surveillance can collect more sensitive information and one-half of the arbitrators in Ontario will ask employers to justify its use, he said, requiring a reasonable basis for using it and that the method be used in a reasonable manner — so employers should be prepared.

“Other arbitrators will say, ‘Whether or not there’s a privacy issue here, my job is to hear relevant evidence and I’m going to hear relevant evidence.’ If a union wanted to grieve a privacy breach, that’s a separate matter,” said Michaluk.

So employers that are on the cusp of using video surveillance have to ask: Why are we using it? What leads us to believe it will find evidence of misconduct? How are we going to use it? What directions are we going to provide the private investigator to ensure we don’t get into trouble? he said.

Hiring external help

For major investigations, HR rarely handles the issue itself, said Michaluk. And hiring an investigator makes sense when it comes to high-stakes concerns or IT-related issues.

“The other reason for going external is as soon as you start to deal with electronic evidence, there are more risks in handling evidence,” he said. “Employers should be careful before they proceed internally because once you change electronic evidence by mistake, in handling it, you can’t wind the clock back. That’s what a forensic IT professional knows how to do, is handle that evidence so it’s captured in a form that’s easy to prove as being authentic.”

Dale Jackaman, a vice-president with PIABC in Vancouver, said he has had to walk away from more than one-half of his cases because the evidence has already been destroyed — and most often the IT department is the problem.

“They’ll be asked by corporate executives or HR to do things in a non-forensic manner that either destroys the evidence or makes it invalid in some way, shape or form.”

And often when suspicions arise, people start talking, he said.

“By the time I get there, the case has become exceedingly more difficult and the person under suspicion is now aware that they’re under suspicion. So it’s very difficult to investigate somebody after the fact.”

HR may also find the requirements for an investigation exceed the capabilities or expertise of internal resources, said Hryb. And legislation in provinces such as B.C. may also restrict the investigative role of HR professionals, so HR may unknowingly breach the legislation by pursuing things beyond the scope of their responsibilities.

“Internal corporate investigators who used not to have to be licensed now have to be licensed as private investigators and suitably trained,” said Jackaman. “That’s very, very important.”

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