WORKPLACE INVESTIGATIONS FOR EMPLOYERS

An investigation should be a thorough inspection of the situation in order to collect as much evidence as possible, so that you 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. 

In some provinces, workplace investigations are required if there has been a complaint of harassment, although the law requires an investigation that is ‘appropriate in the circumstances.’ In any workplace though, especially when a serious allegation has been levied, a workplace investigation is likely a good idea. This ultimately helps you make informed decisions, and prevents that knee-jerk reaction that can be problematic if your intuitions are wrong. 

Learn more about how we assist employers with workplace investigations here. 

In some cases, yes. However, while the law may require you to investigate, it can be vague on the size and scope of that investigation. As an employer, you are required to do your due diligence in investigating before taking action. For a single isolated incident where an employee makes an off-handed comment and then quickly apologizes for their actions, a full-scale investigation will likely not be required. 

However, employers should be cautious about writing off an incident as small or isolated before investigating further. A single complaint might cast light on a much longer pattern of problematic behavior from an employee. One incident of theft caught by another employee may reveal that there has been a past history of incidents that had previously gone unnoticed. Not every situation will require an external third-party investigator, but employers should always do their due diligence before dismissing any incident outright. 

If you believe that an employee has engaged in serious misconduct that could lead to dismissal for cause, it is critical that you investigate first. Courts are inclined to penalize employers who do not provide an employee with some form of “due process”, which includes a chance to respond to allegations or concerns. Employers who fire first and ask questions later often end up paying not only wrongful dismissal damages, but damages for proceeding in bad faith.

Workplace investigations may appear straightforward to the untrained eye, but they can actually be incredibly complex. Investigators often deal with highly sensitive facts, and need people to feel comfortable opening up to them fully in order to obtain the information that they require. At the end of the investigation they will produce a full and comprehensive report that leaves no stone unturned, and offers recommendations based on their professional expertise.

In other words, workplace investigators are far from amateurs. They are usually trained professionals, including many employment lawyers, who have received extensive training in how to properly conduct a neutral third-party investigation. While we do not conduct investigations ourselves, we help our employer clients by retaining a qualified third-party investigator as needed and overseeing the progress of the investigation to help clients make the difficult decisions necessary after reviewing all of the evidence presented. Or, where it is appropriate, we guide our clients as they conduct the investigation.

Contrary to popular belief, investigations do not need to be performed by lawyers. Having your lawyer conduct an investigation does not guarantee privilege or confidentiality, and a lawyer cannot be both investigator and counsel. That is why we tend to “quarterback” the investigation rather than conduct it.  Furthermore, there are many well-trained investigators that are efficient and cost-effective.

While workplace investigators are experts, there is of course some added cost in retaining a professional. This often leads many employers to believe that they can handle an investigation themselves, or that it can all be ‘kept quiet’ by being dealt with internally.

This can be a risky and dangerous position depending on the circumstances. While larger employers may have full-scale HR departments that can effectively conduct an arms-length investigation, this is not most workplaces. In many instances, incidents involving two parties consist of one party who has been with the employer for years (or even decades), and an accuser who is newer to the team. Given those circumstances, it is nearly impossible for an employer to conduct an investigation that appears unbiased, or one where the complainant feels as though they will be heard adequately. 

If an employee is disciplined or dismissed because of the results of an investigation that you conducted yourselves, and that employee proceeds to take legal action, their lawyer will be looking through every piece of your investigation to see if it was conducted fairly. An investigation that was not impartial could easily lead to a claim for bad faith, and an allegation that you did not have sufficient information to conduct any discipline. In the world of workplace investigations, this is akin to throwing gasoline on a fire.

Anyone who conducts an investigation should have training on how to do so. Furthermore, they must not have any actual or perceived bias. Lastly, the most practical consideration: while many organizations tend to assume that “HR will do it”, most HR Professionals we know are extremely busy and do not have the capacity to handle an investigation efficiently. Since investigations should be handled quickly, employers should not ‘wait around’ until someone internally has time to, or capacity to, handle the issue. Calling in outside professionals quickly can help employers stay above board.

Even without issuing discipline, sometimes an accused or even an accuser will resign ahead of any investigation being completed. While this will obviously change how the investigation is conducted, it does not mean that an employer can get away without doing an investigation at all.

Moreover, an investigation will often uncover the systemic issues that may have allowed such an incident to occur in the first place. Aside from the conduct of any individuals, investigations will often reveal gaps in workplace policies, lapses in monitoring or security, or other issues that extend beyond the incident itself. Those will be revealed in the results of a thorough investigation, and can help lead to systemic changes that prevent future incidents. 

This can be a frequent complication that employers face in the middle of investigations. If an incident was precipitated by an accused’s health challenges (including mental or physical challenges), or if the accuser’s health was impacted by the incident to the point where they are no longer able to function in the workplace, they may take time off work on a medical leave as recommended by their physician. 

If a person involved in an incident is on medical leave and is unable to participate in an ongoing workplace investigation, this will likely place the investigation on hold. Both an accused and an accuser have the right to tell their version of events during an investigation, and if one of the parties is not able to participate in this process then the investigation will be effectively on pause until they are able to participate. This can be challenging for employers, especially when they want to see a quick resolution. 

However, medical leaves or even statutory leaves are serious, and individuals are entitled to be off work during that time. This includes not having to deal with an investigation until they are able to return to work. 

If an incident has occurred that already has a workplace buzzing and a rumor mill running at full steam, an employer should take measures to keep everyone calm so that an investigation can proceed without complications.

It can be hard to keep the fact that an investigation is taking place entirely confidential. However, it helps if everyone knows that there is a comprehensive workplace investigations policy in place which requires investigations in various circumstances. In that case, an investigation will not seem to be so “scandalous” or suggest wrongdoing. Employees should know as a rule that any allegations or incidents will be investigated thoroughly, and that decisions will be made following the conclusion and outcome of any investigation. This ensures that an investigation can be expected following the report of an incident, and that employees on both sides have a sense of how any allegations will be handled. 

The added benefit to retaining an external investigator is that they are highly skilled at staying discrete. They will only involve the parties necessary – namely the complainant, the accused, and any relevant witnesses. Their goal is to ensure that the investigation does not become a spectacle, and their arm’s-length detachment ensures that they do not become involved with any other side issues.

No! Often, we hear that a complainant has asked to remain anonymous. It is critical that they be dealt with honestly: it is not possible to guarantee confidentiality, as the accused individual will be entitled to details of the allegations which may implicitly or explicitly reveal who complained, and if the matter goes to litigation, all details are likely to come out. However, many of our clients are able to reassure people by promising to maintain confidentiality to the fullest extent possible and only disclose information when they have to.

That said, parties and witnesses should be warned that they must maintain confidentiality.

Yes – in fact this is imperative to conducting a proper investigation.

If an accused is called into an interview by complete surprise, with no expectation of a problem, and then hit with a barrage of sensitive and difficult questions, their tone and posture will understandably be impacted. They may be nervous, defensive, confused, or any other range of emotions. This will come through both in their answers and their body language, and would then be used by investigators to wrongly judge their credibility.

A person accused of wrongdoing should not be surprised by their interview with a workplace investigator. While confidentiality is imperative outside of the investigation, the accused should be provided with details of the allegations against them so that they can adequately refresh their memory, and speak to the incidents in question without becoming confused, irritable, or flustered. 

No. In short, this is never a good idea. A thorough investigation is imperative to ensure that someone is proven guilty, and until that time they are effectively presumed innocent. 

However, there may be allegations which would lead you to want an accused employee out of the workplace as soon as possible. In cases of sexual harassment for example, you may have serious and valid concerns about leaving an employee in place for some time while an investigation takes place. These concerns may be valid, but the flip side can be dangerous as well. If a thorough third-party investigation proves that the allegations were incorrect or unfounded, and the accused is innocent, then premature discipline will likely be seen as a bad faith punitive measure.

Instead, consider suspending the employee with pay until the investigation is complete. This is not a punitive measure, and will not impact the employee financially either. It may seem like a bitter pill to swallow given the nature of the allegations, but it may ultimately prove less expensive than a legal claim for bad faith. 

Yes! While the gut reaction to serious allegations may be to act quickly, this is most certainly the wrong approach.

For example, making the rash decision to terminate an employee for cause because of their alleged behavior can be incredibly risky. Not only is the cause allegation unlikely to hold up if the employee files a legal claim, but the employee’s lawyer will almost certainly pursue a claim for bad faith, which could lead to punitive damages meant to punish an employer’s bad behavior. This can lead to a significant financial penalty on top of any severance that that employee may be owed. 

If a penalized employee does retain a lawyer, that lawyer will be going through every single detail of the investigation to make sure that it was conducted properly. If there were any steps missed, or skipped outright, they are likely to argue that any discipline of that employee was based on faulty information, and you as the employer should be held responsible. A thorough investigation may have worked in your favour, but a half-baked or sloppy investigation can prove costly. 

In their report, an investigator will advise as to their conclusions based on the evidence, and may suggest next steps regarding discipline, policy changes etc. In some provinces such as Ontario, the law requires that parties to an investigation are entitled to know the conclusions of an investigation, but they are not entitled to the full investigation report, and should not be provided the entire report as a matter of practice.

Depending on the conclusions of the report, discipline may be necessary, but it should follow in line with workplace policy. An employment lawyer can help you not only write that policy but implement it on a consistent basis, including implementing progressive discipline to correct any problematic behavior.

If the conclusions do warrant terminating an employee for cause, consult a lawyer first to make sure that your actions are appropriate. However, remember that you can terminate an employee at any time so long as they are paid out properly – either according to the terms of their contract, or paid reasonable notice at common law if the contract is unwritten or invalid. It can be immensely frustrating to have to pay an employee termination pay when you feel they have wronged your business, but in most circumstances that is still much less expensive than lengthy litigation and a claim for bad faith.