Some form of investigation should be undertaken before summary dismissal is imposed
In recent years, I have frequently commented that when reviewing just cause cases, the employee's response when confronted with suspicions of misconduct is often the deciding factor with respect to whether just cause for dismissal will be found, or some lesser form of punishment will be deemed appropriate. The recent Canada Labour Code decision in Paul and Sipekne'katik, Re provides a perfect example of that.
In that case, the employee was on his second stint of employment with Sipekne'katik, a First Nation of about 3,000 members. He became the subject of suspicion regarding lax financial practices, missing tools and equipment.
The employer proceeded as we would advise any client to: It placed the employee on suspension while it conducted an investigation. Now, initially, the suspension was without pay, but this was changed to a paid suspension when he complained.
Although this is often frustrating for employers, they should impose a paid suspension, or paid leave, during an investigation. It is important to remember that even though this is not a criminal prosecution, individuals should be treated as innocent until proven guilty. Imposing an unpaid suspension would be inappropriate. It is also unwise to allow the employee to continue working during the investigation in most cases.
The need for a fair investigation
During the course of the investigation, Anthony Paul was confronted. The manner in which he responded became a critical part of the judge's decision. Before I get to that, I pause to note that case law is quite clear: Some form of investigation must be undertaken before discipline, and particularly summary dismissal is imposed. Not all investigations are alike; some investigations will be vast processes that take months and involve dozens of witnesses and hundreds of documents. Others can involve a simple discussion with the "accused." Either way, the person tasked with investigating the matter must proceed fairly and objectively.
The purpose of an investigation is not to prove the individual's guilt. Rather, it is to determine what happened. As part of that determination, the accused should be given a proper opportunity to respond to the allegations as well as to disclose any mitigating factors.
Sometimes, employers or investigators are concerned that if they tell the accused too much, particularly in advance, they will have a chance to concoct a story and avoid penalty. The reality is that this is rarely, if ever, a concern. However, failure to provide the accused with the details of the allegations will be held against the employer, and can result in the overturning of the dismissal, as well as an award of bad faith damages.
It is not enough to tell someone she is accused of harassment, for example. She must be advised of the specific allegations, including the date, time, location and specifics of the alleged misconduct.
Lying while being investigated can be your downfall
Returning to Paul and Sipekne'katik, Re, the employee lied about some of the reasons for his conduct, and only admitted later on he had done so. In the course of the adjudicator’s analysis of the situation, he took particular note of the fact that the employee’s first instinct when confronted was to respond in a dishonest manner. As the adjudicator wrote:
“I find it to be a very serious matter that the complainant's first instinct, when asked a tough question about where he was and what he was doing on a particular day, was to fabricate a complete lie. He says he panicked. I accept that this is what happened, and that is problematic in itself.
“The employer is entitled to an employee whose instinct is to tell the truth, no matter how difficult or embarrassing that may be. The complainant was already dismissed once for lying in 2014, and he understood that the only reason he was rehired was because he apologized and asked to be given a second chance to show that he was honest and trustworthy. His willingness to lie his way out of a tight situation in 2016 shows that he did not learn from his experience. By lying, he broke the bond of trust that is essential between an employer and an employee who is on his own much of the time, and who has free access to items of value such as tools and building supplies.”
As a result, the dismissal was upheld.
After-acquired cause is also valid
As somewhat of a sidenote, in this case, the employer discovered, post-dismissal, that Paul had lied about having a valid driver’s licence (he refused to say why he lost his). Since this was a fundamental requirement of the job, as Paul was required to travel throughout the day, this was a factor in the assessment of whether just cause for dismissal existed.
Do you really have to investigate?
Employers often complain about the need to conduct an investigation when they are sure the employee engaged in misconduct. As I often tell them, sometimes they will find out that they were wrong, as happened to a client of mine less than a year ago when they were sure a particular employee was leaking information to third parties. Ultimately, they found out that it was someone else entirely.
By conducting an investigation, the employer may also learn of mitigating factors that will render summary dismissal inappropriate. It is far better to find out about those factors before dismissal than later on, particularly if you would have discovered them if you have conducted an appropriate investigation. Otherwise, you may end up defending and losing a wrongful dismissal claim, ultimately paying severance, legal fees, a portion of the employee's legal fees, and potential additional damages. The stakes can be high, so take every opportunity to improve your odds.
The other reason that I encourage employers to conduct investigations is that in many cases, they will actually put themselves in a stronger position. That is because in many cases, the guilty employee may lie or even attempt to cover up their wrongdoing and convince witnesses to lie on their behalf. In other words, the employees often dig themselves into an even deeper hole and provide evidence that they are untrustworthy, further supporting the employer’s position that the employment relationship has been irreparably harmed.
The bottom line
For employers, the message is fairly simple: Some form of investigation should be undertaken before summary dismissal is imposed. It may result in exculpatory evidence being uncovered, or mitigating factors arising that will impact your decision. Conversely, it may make your position even stronger.
For employees, the message is even simpler: Do not lie or behave dishonestly in the course of an investigation as you will only be putting yourself into an even weaker position. Rather, if you did something that you should not have, your best plan will usually be to own up to it, apologize, and offer reasonable assurances that it will not happen again. If there were any mitigating factors, you should definitely make the employer aware of them.