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.
The need to investigate can arise when employee misconduct is suspected, particularly prior to a dismissal for cause, as well as when there are concerns of harassment.
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. It is far better to be aware of those risks before dismissal than after. In other cases, the investigation will strengthen the employer’s position by expanding the basis for dismissal. Either way, courts have little patience for employers that 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 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 some jurisdictions, including 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.
How we can help with Workplace Investigations
We are fully up to date on the legal requirements, and we will not only tell you when an investigation is necessary, we will retain an investigator, guide the process, review the report and advise you on the 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.
We want to be your Trusted Advisor, your Chief HR Law Officer, your business partner. Let us be part of your team, so that we can look after your employment law issues, and you can focus on your business.