Investigations have taken on tremendous importance in the world of HR, and failing to investigate, or failing to investigate properly, can result in significant liability. When Stuart first designed the HR Law for HR Professionals course, investigations were a small portion of one module. Now, a mere nine years later, we spend one entire day out of five discussing how to conduct an investigation.
As Stuart wrote in his book, You’re Fired! Just Cause for Dismissal in Canada, it is critical that employers investigate before imposing discipline or dismissing an employee for cause. In some cases, they will learn of facts or mitigating factors that, if they had proceeded, would result in liability on their part. In others, the investigation will strengthen their position. But either way, courts have little patience for employers that “jump the gun” and rush to dismissal without a thorough understanding of the facts. They have even less tolerance for employers that conduct a prosecution, building evidence for dismissal, rather than an impartial investigation.
It is now clear that harassment and sexual harassment will not be tolerated. Our courts and tribunals have made it clear that any allegations or suspicions must be investigated. Furthermore, in Ontario, it is now the law: employers must investigate suspected harassment. Failure to do so properly can result in a Ministry of Labour Order that a third party conduct an investigation, to be paid for by the employer.
We are fully up to date on the legal requirements, and we will not only tell you when an investigation is necessary, we can retain an investigator, guide the process, review the report and advise you on next steps. In some cases, we will conduct the investigation as well, but in many circumstances this is ill-advised, as we cannot be both counsel and investigator.
No matter what the circumstances, we will ensure that your investigation is done properly and you are not exposed to unnecessary liability.