Canadian Employment Law Today - sample

Canadian HR Reporter, 2019 4 CASE IN POINT: INVESTIGATIONS DESPITE LEGISLATION mandating that investigations must be undertaken, there are no hard-and-fast rules on how to conduct a proper workplace investigation. As a result, many employers continue to conduct investigations that may not withstand legal scrutiny. Here you can find some key legal principles and best practices for conducting effective workplace investigations. BACKGROUND A quick guide for conducting workplace investigations An effective, fair investigation after workplace misconduct or incidents can go a long way towards reducing liability for employers BY NATHANIEL MARSHALL W orkplace investigations are becoming increasingly prominent in today's work- places. In part, this is due to fairly recent legislative changes that require employers to conduct workplace investigations in certain circumstances. Employers have also recognized the ben- efits of conducting investigations prior to administering discipline, to identify is- sues with workplace morale, and to high- light areas for improvement within their workplace culture. Additionally, in cer- tain circumstances, properly conducted workplace investigations can be effective tools to mitigate the risks associated with litigation or arbitration. It's all about fairness Employers have a legal obligation to fair- ly and impartially conduct workplace in- vestigations, although determining what is fair will vary with the circumstances. A key component of conducting a fair workplace investigation involves using an investigator who is neutral, unbiased, and who will be even-handed with the parties and witnesses. Investigations must also be conducted in a timely manner. is affords fairness to both the parties by avoiding undue de- lay because the sooner an investigation is completed, the sooner the employer can act. Proceeding expeditiously also helps produce a better-quality investigation, as memories and recollections rarely improve over time. Employers should also be cognizant of whether it may be prudent to remove an employee from the workplace during the investigation process. Tensions and emotions often run high as the process unfolds, and in order to ensure fairness for all parties, it may be appropriate for the complainant or respondent to be placed on a paid leave or offered modi- fied duties while the investigation is un- derway. Understanding the purpose It is essential to understand the purpose for which the investigation is being con- ducted. It could be in response to a legal obligation, because the employer received a complaint regarding an alleged breach of company policy, to determine if there are grounds to levy discipline, or to assist in identifying and resolving larger issues with the workplace culture. Ultimately, there are a myriad of reasons why an em- ployer may need to investigate and under- standing its purpose will often dictate the type of investigation that is appropriate in the circumstances. Identifying the investigator Depending on the purpose of the investi- gation, it may be advisable for the employ- er to conduct the investigation internally. However, while internal investigators may be suitable for routine and straight- forward investigations, they may lack an ability to be impartial or deal with com- plex factual and legal issues. Although they can be more costly, retaining ex- ternal investigators allows employers to select someone with the necessary skills and experience to properly conduct the investigation. Because they are not regu- larly employed in the workplace, external investigators are also less likely to present issues with impartiality. An additional consideration the em- ployer will want to keep in mind is wheth- er it would like, or need, the investigation to be privileged. In some circumstances — though there is no guarantee of ensur- ing privilege — that can be accomplished by retaining an external investigator. Defining the scope Regardless of whether an internal or ex- ternal investigator is conducting the in- vestigation, the employer should establish specific scope around the investigation — such as its mandate, the timeline, wheth- er the investigator has only been retained to perform fact-finding alone, or if the in- vestigator should be tasked with provid- ing recommendations. It is not uncommon for issues to arise throughout an investigation. To the extent possible, the employer should indicate whether the investigator should address any additional complaints or cross-com- plaints beyond those initially identified, or if conducting a separate investigation is preferable. When defining the scope of the investigation, both the employer and investigator must have a clear under- standing of the investigator's role. When using external counsel, this role should be spelled out in the retainer agreement. Maintaining confidentiality At the outset of every interview whether with the parties or witnesses, the best practice is to outline the investigative pro- cess and emphasize that all parties and witnesses are expected to maintain con- fidentiality over their participation in the investigation. Maintaining confidentiality is crucial to conducting an effective work- place investigation, as it helps preclude having the process undermined by gossip and collusion. Further, the limits of such confidentiality should also be communi- cated to all persons involved. It is also pru- dent to reiterate the confidentiality obliga- tion at the conclusion of each interview. Interviewing witnesses and assessing credibility After reviewing any applicable workplace policies and complaint documents, the first interview to be conducted is typi- cally with the complainant. is is the investigator's opportunity to get a com- plete picture of the issues by hearing the who, what, when, where, and why. e complainant should also be encouraged to provide any relevant documents to the investigator at this time. Additionally, the investigator will want to elicit any rel- evant contextual information, including

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