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Frequently Asked Questions

WORKPLACE INVESTIGATIONS FOR EMPLOYEES

When something goes wrong in the workplace, everyone’s first instinct is to react immediately. If an employer hears of an employee’s alleged misdeeds, their knee-jerk response might be to take immediate disciplinary action. If an employee is alleged to have done something wrong, they might immediately be tempted to hide. Even with rules and policies and procedures in place, it can be hard to tune out those instincts.

Yet acting on instinct can be dangerous in those situations for employers and employees. When an employer learns of an employee’s alleged wrongdoing, either through misconduct or in a harassment allegation, that employee is still ‘innocent until proven guilty.’ In other words, while employers might be tempted to act immediately, and employees might be tempted to act out, employers are responsible for investigating before making any decisions.

A neutral, third-party investigation might find that all allegations are accurate, or it may disagree with some or even all of them. It is that neutrality that is at the core of a proper investigation – without it, the employers might end up being the ones in trouble.

What is a workplace investigation?

An investigation should be a thorough inspection of the situation in order to collect as much evidence as possible, so that the employer can make an informed decision about how to proceed. In a harassment complaint for example, this will mean interviewing the complainant and any witnesses, and then giving the accused the opportunity to thoroughly understand the allegations against them so that they can respond. 

Investigations come in all shapes and sizes. While it can mean an extended process involving dozens of witnesses and hundreds of documents and culminating in a lengthy written report, it can also mean brief discussions with two people followed by a concluding email. That said, every investigation should include an opportunity for the “accused” to give their side of the story. It must also include a clear conclusion: even if it is a “he said, she said” situation, an investigator has to weigh the evidence and decide what they think happened.

When are workplace investigations done?

There are really two key times where a workplace investigation may arise, although they could potentially happen for other reasons as well.

The first is an instance of harassment. Some provinces such as Ontario legally require an employer to investigate upon learning of an incident of harassment, whether sexual or otherwise. The law does not dictate the form that that investigation must take, so an investigation for an alleged ‘tasteless joke’ that had offended a co-worker might look very different than an investigation for an allegation of sexual assault. In any event, employers are supposed to investigate before proceeding to any discipline.

The other time that investigations come up is if there have been any allegations of bad behaviour. If you have been accused of theft or dishonesty for example, an employer should investigate before proceeding to any discipline. This gives the employer the opportunity to review all the evidence rather than make any sort of rash decision.

What happens in a workplace investigation?

There is no one single standard of workplace investigation, however there are some general principles that investigators should follow. 

First, it is crucial to the integrity of an investigation that an investigator stay neutral. Employers do not always catch on to this – some think that they can simply ask their own questions, and fail to account for the fact that they may have a longstanding relationship with one party, or a bias that clouds their ability to do an impartial investigation.

The general principles of an investigation are that an investigator will interview the complainant (the person/people who made the complaint, if any), the person/group alleged in the wrongdoing, and any witnesses. That investigator may be someone from an HR department who’s at an arm’s length from the people involved, or it may be an external third-party that the employer has hired. No matter who is investigating, the investigator’s responsibility is to review the allegations in full, and give every person involved the opportunity to share their story.

If I am accused of something, do I have to participate in the workplace investigation?

If your employer has instructed you to participate in a workplace investigation, then yes, you need to participate. Disobeying that directive would be just like disobeying another instruction from an employer, and can come with disciplinary consequences. Remember though, if you have been accused of something, that simply participating in an investigation is not an automatic finding of guilt. The investigator is neutral, and is there to get your side of the story as well. 

If you have been named as part of an investigation then fear of participating may be incredibly stressful, and you might think it is better to try and take a leave, or to resign immediately. While a resignation would stop an investigation in a non-harassment scenario, it would not stop a harassment investigation – it will still continue in your absence. If you have been accused of harassment, then resigning before any conclusions are drawn is often a poor decision. A resignation will also not stop any criminal charges, if they result from the findings. If you are off on a medical leave or a job-protected leave, the investigation will likely be at a standstill until your return, but it will be waiting for you when you are back at work.

How should I prepare for an interview with an investigator?

If you have made the complaint in the investigation, the investigator is going to want your full version of events. They are also assessing your credibility, so there is no reason to tell them anything but the truth. They will ask you questions, so make sure that you answer them honestly and completely to the best of your abilities. Their job is to gain an understanding of what happened, and you are one of the best people to help provide that information. They will also be speaking with any witnesses to get their version of events, and see how they align with yours. 

If you have been accused or are otherwise the subject of an investigation, you have a right to know the allegations that have been made against you. The meeting with investigators may not be welcome, but it should not come as an out-of-the-blue surprise. You should know going into that meeting what you have been accused of so that you have a chance to jog your memory, and review a calendar if needed. 

The investigation is a chance to get your side of the story, so you too should answer the questions fully and completely. If you recall events differently, or have other evidence that you can provide, that should be given to the investigator. Their job is to assess everyone’s credibility, and yours especially will be under review, so staying calm and cooperative through the process can often be helpful. Your participation though is key. Otherwise you can think of an investigation like someone suing you and you failing to defend yourself – it’s more than likely that a court would find in their favour. 

Do I have to participate if I was a witness?

Yes, if your manager or supervisor instructs you to participate in an investigation then you need to follow their directive.

Witnesses can be crucial to providing the ‘full picture’ in an investigation. In complaints of harassment or misconduct, it can often be one person’s word against another, often with no witnesses to corroborate either side of the story. When witnesses are available, they can help offer a new perspective to what actually happened, and are informative when the investigator is drawing up their report.

Just like anyone else interviewed, it is important to be honest and truthful in answering questions during an investigation. The investigator will be assessing your character as well, and will be probing to see if you have any particular allegiance to one side or the other that would be clouding your story. Don’t worry about embellishing anything; just answer the questions with anything that you have witnessed.

Also remember that there is a legal prohibition on reprisal, which is punishing someone for exercising their rights. If either the employer or another employee takes actions against a witness simply for coming forward, they could be faced with legal consequences for their actions. 

If I made a harassment complaint, will my story be kept confidential?

This is a tricky question, since there are really three answers.

Broadly, yes, your story will be kept confidential. Managers and investigators all realize that allegations of harassment can be incredibly sensitive, and often involve details that any party would rather keep quiet. It is unhelpful for a workplace to become part of a rumor mill, and to have employees ostracizing each other, pointing fingers, starting whisper campaigns, or doing anything else to cloud the integrity of an impartial investigation. Managers should take great care to keep sensitive details as private as possible so as not to compromise an investigation or to impact the flow of the business.

However, a person accused of misconduct has the right to answer to those allegations, which will involve them learning the details of those allegations so that they can provide a full defence. They are instructed to keep all details private, however they will be informed of the nature and details of your complaint. Managers will also receive a full report from an investigator that outlines the nature of the story, but this too will be kept away from public view, and parties involved are only entitled to know the results of an investigation vs. receiving a full report.

The third answer that may arise is if there is any litigation. If a lawsuit stems from this incident, then the parties may be required to trade the report between their lawyers. If the report includes communication with a lawyer, or if it was made for the purposes of litigation then it may be a privileged document, however there is a possibility that the details will become part of a court proceeding. 

Will I get to know the results of the investigation?

If you are the complainant or respondent in a harassment investigation, then most provinces require that you be told the results of an investigation, along with whether any disciplinary measures were taken as a result. This can help bring employees peace of mind to know that their complaint was dealt with seriously and that there were consequences for any behaviour. 

However, parties in an investigation are not necessarily entitled to receive the full investigation report. This report will contain additional sensitive information that may be known only to management and to the investigator, and it is not meant to be spread widely. If you have participated in an investigation, you are more likely to receive a 1-2 page letter than you will a ~100 page document.

In other investigations, participants are not entitled to know the outcome, though the “accused” will undoubtedly know the result. 

Can I be punished for lying in an investigation?

Yes, you can, depending on the law and your workplace policy. 

While rare, there are individuals who will report false or made-up allegations either out of some personal spite, or because they believe it is the ultimate form of retribution. These investigations are costly and have serious consequences, and such allegations are nothing to joke about. 

An investigator will be assessing everyone’s credibility. If they find that the allegations were completely false, or made up in order to get back at someone, there may be serious disciplinary consequences through your workplace. The investigation will likely be dismissed, but whoever fabricated the story may be suspended or even terminated based on whatever workplace policies are in place. 

Some workplace policies attempt to reassure complainants by guaranteeing that they will never be penalized for filing a complaint. That is a mistake, as bad faith or dishonest complaints should be disciplined; however, if your workplace has such a policy, then you may be protected even in such circumstances.

What happens if I am disciplined without an investigation?

Unfortunately, while investigations are often required by law, some employers will rush to judgement and act either without an investigation or before the investigation concludes. This is where the employer may not only have been wrong in their conclusions, but they have also acted in bad faith. That is a procedural error that can expose the company to liability. Even if there is some truth to the allegations, there is still no excuse for employers acting in bad faith. 

An employment lawyer can work with you to pursue your legal options, and whether it may be worth pursuing a legal claim for your bad faith termination. These claims may result in financial damages from the loss of your job, as well as potential additional sums of money to punish the employer’s bad behaviour. Employers should know that while an investigation may take time and cost money, failing to conduct one can be significantly more expensive.

Investigations are serious, and participants should take them seriously. Remember though that anyone accused in an investigation is innocent until proven guilty, and an impartial investigation will give everyone involved the opportunity to fully share their story.

At Rudner Law we help support clients from the sidelines when they are involved in an investigation, but can jump right in to help clients deal with the outcome and any resulting discipline.

Contact us today.

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Rudner Law
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Markham, ON
L3R 5B4

Phone: 416-864-8500
Text: 416-864-8500

Email: info@rudnerlaw.ca

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