Conducting workplace investigations (redux)

By Brian Kreissl

Back in 2011, I wrote a post on conducting workplace investigations. While I covered some of the most basic and fundamental issues surrounding the investigation process, I only scratched the surface of this important and complex topic.

Several different factors have resulted in there being an increased emphasis on the importance of completing a proper and thorough workplace investigation, including the #MeToo movement, new legislative requirements in some jurisdictions and increased damages for non-existent or poorly handled investigations.

Fortunately, there are resources that can help HR practitioners such as lawyers and private investigators who can actually complete the investigation (particularly those of a highly sensitive or complex nature), training and publications.

While there are situations where an expert external investigator should be retained, a properly trained HR practitioner should be able to conduct investigations into most types of allegations of workplace misconduct. Exceptions include allegations involving very senior-level individuals within the organization, complex legal, financial or technology issues, public or high-profile incidents, allegations of serious criminal misconduct and anything that could result in a real, potential or perceived conflict of interest for an internal investigator.

It may also be prudent to hire an external investigator where there is no one on staff with the training, skills and expertise necessary to conduct an investigation, or where no one has the capacity to take on the extra work.

But regardless of whether an internal or external investigator is used, HR practitioners and employers in general should be aware of the following issues and trends relating to workplace investigations.

Workplace investigations in the #MeToo era

Anecdotal evidence I have heard from employment lawyers suggests the volume of sexual harassment complaints has increased dramatically as a result of the #MeToo movement. Employers need to be prepared to investigate these allegations thoroughly and take the complaints of alleged victims of harassment seriously.

They also need to handle such investigations professionally and act swiftly and decisively. Otherwise, employers could find themselves on the receiving end of a human rights complaint, a grievance or a constructive dismissal claim based on allegations of a highly poisoned work environment.

Perhaps more importantly, allegations of harassment can go viral quickly and this type of bad publicity has the potential to negatively impact employee morale and the organization’s overall and employer brands.

While it is important to take allegations seriously and thoroughly investigate them, it is equally important to conduct a fair and unbiased investigation, gather all evidence, interview all witnesses and safeguard the respondent’s due process rights. The investigation cannot have the appearance of a witch hunt.

Legislative requirements relating to workplace investigations

Occupational health and safety legislation in some jurisdictions requires employers to conduct workplace investigations and places specific obligations on them with respect to process.

A good example of this is under the Ontario Occupational Health and Safety Act (OHSA), which was amended as a result of Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016.

As well as expanding the definition of workplace harassment to specifically include sexual harassment, Bill 132 requires employers to investigate all sexual harassment allegations whether or not a formal complaint was received. It also requires that investigations be “appropriate in the circumstances” and that information on corrective action be communicated to respondents (although this should be kept very high-level to preserve confidentiality).

The legislation also empowers the Ministry of Labour to appoint a third-party investigator at the employer’s expense.

Damages for poorly handled investigations

The courts are now awarding significant damages to employees for non-existent or poorly handled investigations. This underscores the need to have properly trained individuals conduct investigations.

One example of this is found in the 2014 Ontario Court of Appeal decision in Boucher v. Wal-Mart Canada Corp., where the court upheld the award of $200,000 in aggravated damages and awarded $100,000 in punitive damages against Wal-Mart for failing to properly conduct an investigation into an alleged campaign of abuse and harassment on the part of a manager or interview important witnesses. The employer had also threatened to discipline the employee for making a false complaint.

A useful and comprehensive resource

One useful and comprehensive resource HR practitioners, employment lawyers and others can turn to in order to help understand their obligations surrounding workplace investigations is the Human Resources Guide to Workplace Investigations, Second Edition, by Janice Rubin and Christine Thomlinson.