Obtaining information for employer’s investigation

Getting information from police and other sources for separate investigation of off-duty incident

Tim Mitchell
Question: A casual employee who works on an on-call basis allegedly assaulted someone during a weekend party. The alleged victim is contemplating laying charges and has made a statement to police. Can we as the employer obtain the names of witnesses or any other information about the case from the police for our own investigation into the incident?

Answer: In the situation you have described, it is unlikely that witness names and statements would be more readily available from the police than they would be from the victim. Generally speaking, an employer is not considered to have an interest in or a right to regulate or impose discipline in respect of an employee’s off-duty conduct. In the absence of some connection between the assault and the workplace, which does not appear to exist on the facts, the employer has no more claim to information from the police than any other third party. This is particularly the case given the relatively tenuous nature of the employment relationship in this case.

There may be instances where an employer will be recognized as having an interest in an employee’s misconduct off the job, such as a pediatric nurse being investigated for off-duty child abuse or a school bus driver for possession of child pornography. Even in such cases, however, the actual witness statements given to the police during the course of an investigation may well be protected by privacy legislation, depending on their content. In such cases, the police may be precluded from voluntarily disclosing the statements, however co-operative they may wish to be.

If criminal charges are laid, a copy of the indictment can be obtained. If a preliminary hearing is held, an employer can send a representative to the proceedings and ascertain what evidence the Crown has against the accused. However, an employer who does have a basis to claim a right to discipline an employee for off-duty conduct may be under some time constraints in imposing discipline. In such a case, the most expeditious procedure may be to obtain witness names from the victim and conduct interviews independently of the police investigation.

Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.

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