Internal vs. external investigator for employee misconduct
Question: Are there circumstances where it would be okay for an employer to use an investigator or mediator from within the company to deal with employee conflict or serious misconduct? What are the potential liabilities?
Answer: The short answer is yes. In fact, an employer may often have certain obligations, particularly under occupational health and safety legislation, to its employees to protect them from the harmful effects of such misconduct on the part of another employee. In these circumstances, an employer is required to take immediate and effective steps to offer that protection, to exercise reasonable care in doing so, and to correct the situation promptly. Employers thus have a legal duty to prevent, reduce or limit misconduct such as harassment. An employer who moves quickly to undertake an investigation of a complaint or incidence of misconduct in order to remedy the situation will be taking active steps to fulfill that obligation, even if the investigation is conducted internally.
However, there are potential liabilities associated with such a decision. The employer has an obligation to conduct an investigation in a thorough, fair and impartial way. Often an external investigator, such as lawyer or private investigator, will be equipped with the knowledge, training and professional responsibility to meet these obligations without question. However, an employer who opts to conduct an internal investigation must be careful to ensure that the investigation meets the standards for procedural fairness, or else it will open itself up to liability. The employee who is the subject of a faulty investigation could potentially pursue a court action, such as an action for wrongful dismissal, or initiate a human rights complaint. In other words, it is possible to conduct an internal investigation into misconduct, but employers should be fully aware of the elements required in order to ensure it meets procedural fairness standards.
The definition of “fair” may change, depending on the situation, but, in the end, the investigation may result in the investigated party being adversely affected. That means, at the most basic level, that she must be informed of the complaint against her and be given the opportunity to respond to it. There are certain specific elements which should also form part of the employer’s approach to the investigation, including:
•Adherence to the policy: If the employer has a policy regarding the alleged misconduct, such as harassment, then the investigation should follow the guidelines therein. The accused and the complainant should have been provided with a copy when they began their employment, but should receive one at the time the complaint is lodged in any event. If no policy exists, it is advisable to put one in place. If the involved parties have prior notice of the type of misconduct that will not be tolerated and the standard procedures that will be followed, then it is more likely the ensuing investigatory process will be considered fair.
•Timeliness: Once the employer has become aware of the misconduct, it is important for it to act promptly and effectively. In general, investigations should be launched immediately after receiving a complaint or becoming aware of the misconduct, where possible. The investigation should also be concluded as soon as possible.
•Thoroughness: The investigator should make efforts to interview all of the relevant witnesses, on a face to face basis, and balance the interests of the complainant and accused. The accused should be given the opportunity to properly respond to each complaint that is advanced against her.
•Impartiality: The employer needs to conduct the investigation in a fair and unbiased manner, and cannot carry any pre-conceived notions into the investigation. This makes the choice of investigator important as well. The reasonable apprehension of bias is also a potential issue. An employer could be liable even if it is possible that a reasonable person would perceive impartiality in the process — for example, if the investigator was related to the complainant. If bias was found, it would undermine the validity of the investigation and, for this reason, this element is significant.
•Confidentiality: An employer should ensure that all aspects of the investigation are kept confidential. Only those who need to know about the investigation should know. It is important to maintain the view that the accused person is innocent until proven guilty. Additionally, privacy laws may be applicable to the distribution of information in this context, and should be considered.
An additional area of potential liability for an employer conducting an internal investigation surrounds the choice of investigator. To avoid any actual or apprehension of bias, an employer should not choose the individual who received the complaint, the supervisor of the accused or the complainant, or a close friend of the complainant or accused. The investigator should not possess any characteristics that would create the appearance of favouritism. Investigators should have skill and experience in interviewing, credibility, sensitivity towards cultural differences, an impartial approach, and knowledge and understanding of the type of misconduct or area in issue (such as occupational health and safety or harassment).
It is possible to conduct an internal investigation in the workplace. However, an improper or unfair investigation could expose the employer to significant liability. If an accused person loses her job or is otherwise adversely affected as a result of an unfair investigation, that employee could be successful in an action for wrongful dismissal, for example. Similarly, any form of bias or discrimination could result in a human rights complaint against the employer. The most effective way to limit this liability is to consider whether the employer is capable of ensuring that the necessary elements of an investigation can be met internally. If not, the prudent course of action may be to go with an external or professional investigator.
