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Honesty in the investigation

Employees need to understand that this is an opportunity to salvage the relationship

By Stuart Rudner 

Employees who are beinginvestigated for misconduct need to understand that lying will only hurt theircause and make it more likely they will be dismissed. In many cases, theemployee's honesty, or lack thereof, will make the difference between justcause for dismissal and some lesser penalty.

On many occasions, I havewritten about the law of summary dismissal, and our courts have been clear insaying any misconduct is not to be considered in isolation, but to be assessedin the context of all relevant circumstances. This contextual approach requiresthat employers consider factors such as the employee’s length of service, priordisciplinary history, the nature of her position within the organization, and herresponse when confronted with the allegation.

In the course of drafting mytextbook, You're Fired! Just Cause for Dismissal in Canada, as well aspreparing the bi-annual updates, I have reviewed thousands of cases wherecourts and arbitrators have assessed whether an individual deserved to befired. One observation I have made is the employee's response when confrontedhas become a critical factor. All else being equal, it is far more likely anemployee who is honest about the misconduct and offers some indication ofmitigating factors will get a second chance, whereas an employee who lies abouthis misconduct and makes efforts to cover it up only compounds his mistake.

Ultimately, in assessingwhether just cause for dismissal exists, employers, courts and arbitrators areconsidering whether the employment relationship has been damaged beyond repair.Trust is a fundamental factor in this assessment, and an employee who isdishonest in the course of an investigation will provide further evidence sheis untrustworthy and the employer should not be expected to continue to employ her.

Employees need to understandthat when they are confronted with allegations of misconduct, that is theiropportunity to salvage the relationship. Of course, if they are not guilty,they should not say otherwise. However, if they are, or if there is even sometruth to the allegation, they will be far better off if they are honest andprovide an explanation for their conduct, rather than deny it altogether.

By way of example, the employeemight mention relevant mitigating factors, such as ongoing family or maritalproblems, addiction, physical or psychological illness, or anything else thatcaused him to behave the way he did. It should go without saying they shouldnot manufacture such excuses, but should mention them if they exist.

Unfortunately, it is remarkablehow often individuals engage in one uncharacteristic instance of misconduct,and then miss the chance to get the employment relationship back on track byresponding dishonestly when confronted,destroying any remaining trust that the employer may have had in them.

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Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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