Conducting a timely misconduct investigation

What is a reasonable time to conduct an investigation and issue discipline?

Conducting a timely misconduct investigation

Question: What is the reasonable time limit to conduct an investigation and issue discipline after an employer learns of employee misconduct?

Answer: When an employer first learns about employee misconduct, it is important to take swift and proactive steps to deal with the situation. Otherwise, unaddressed misconduct may prejudice the interests of the employer.

An employer should prepare an action plan to address the situation, which may include a formal or informal investigation, depending on the nature of the misconduct. Prompt action ensures that witnesses have a better recollection of events and that evidence, such as emails and texts, have not been deleted or lost. Some workplaces have set timelines and procedures for conducting an investigation, in policies, employment contracts or collective agreements, and these should be reviewed carefully to ensure they are complied with.

When employers are responding to bullying and harassment, they need to be aware of the relevant occupational health and safety legislation in their jurisdiction. In British Columbia, for example, the Workers’ Compensation Act requires employers to take all reasonable steps to ensure their workers’ health and safety. This responsibility includes an obligation to establish a policy for the prevention of workplace bullying and harassment and for the timely investigation and disposition of bullying and harassment complaints.

Similarly, Ontario’s Occupational Health and Safety Act requires an employer to conduct an “appropriate” investigation in response to allegations of workplace harassment. The Ministry of Labour’s Code of Practice to Address Workplace Harassment Under Ontario’s Occupational Health and Safety Act states that an investigation needs to be completed within 90 days unless there are extenuating circumstances.

If an employer fails to deal with alleged misconduct in a timely manner, it may be faced with an allegation that it is precluded from proceeding with discipline or discharge because it has condoned the employee’s behaviour. In the frequently cited 1889 decision in McIntyre v. Hockin, the Ontario Court of Appeal stated: “…If he retains the servant in his employment for any considerable time after discovering his fault, that is condonation, and he cannot afterwards dismiss for that fault without anything new.”

Undue delay in a misconduct investigation may give rise to a successful argument of condonation, unless the employer has a reasonable explanation for its delay. In Kirk v. Nanaimo Literacy Association, the employer succeeded in proving it had just cause to dismiss an insubordinate employee who sent “inflammatory and hostile” communications. In response to the employee’s argument about undue delay, the B.C. Supreme Court determined that the employer had been justified in taking approximately seven weeks to respond to the misconduct because the employee’s misconduct had created a crisis for the employer, leaving the company with a board of only two members. 

When an employer does not conduct a timely investigation, it may expose itself to liability. In TM v. Manitoba (Justice), for example, the complaint’s co-workers sexually harassed him over a period of years, and eventually this escalated to a sexual assault. The employer initially refused to investigate the allegations unless the complainant provided names of his harassers and witnesses. Even after names were given, the employer still dragged its feet and failed to conduct a thorough investigation. Every time the complainant asked the employer to follow up, the employer made him recount the traumatic experiences and provide more information. As a result, the complainant’s mental health deteriorated. Eventually, after 19 months, the employer renewed its investigation, but it failed to put specific allegations to the alleged harassers. The adjudicator awarded the complainant $75,000 for injury to dignity, feelings and self-respect as a result of the inadequate investigation and failure to address the harassment. The employer’s staff was also required to complete workplace harassment training, including how to respond to and investigate workplace harassment.

T.M. v. Manitoba demonstrates that failing to act promptly can expose victims to further abuse and create additional liability for employers. In addition, failure to promptly address misconduct can lead to morale problems in the workplace and encourage other workers to think that misbehaviour is acceptable.

For more information, see:

• McIntyre v. Hockin, 16 O.A.R. 498 (Ont. C.A.).
• Kirk v. Nanaimo Literacy Association, 2018 BCSC 1217 (B.C. S.C.).
• T.M. v. Manitoba (Justice), 2019 MBHR 13 (Man. Human Rights Adj. Panel).

 

Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or [email protected]

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