Canadian Employment Law Today

Answer: In conducting an investigation of a workplace harassment complaint, the in- terview process will normally begin with in- terviews with the complainant and respon- dent, during which a list of witnesses will be identifi ed. As the investigation proceeds, additional witnesses are often identifi ed during witness interviews. e identities of the new witnesses need not be revealed to the complainant, as witness identities are not relevant to investigating the substance of the complaint. In the interviewing process, witnesses should only be provided with enough infor- mation to direct their minds to the relevant information they possess or events they observed. In order to protect the confi den- tiality of the parties to the complaint, wit- nesses should be given as little information as possible. Witnesses should not be informed of the nature of the complaint. e investiga- tor should not show witnesses a copy of the complaint form, nor provide any details re- lating to the circumstances of the complaint. e investigator may advise a witness that the employer is investigating a complaint, and that the witness' name has been pro- vided as someone who potentially possesses information relevant to the investigation. Revealing unnecessary details about the complaint or investigation not only poses a concern to the confi dentiality of the parties to the complaint, but also imposes barriers to the employer's ability to conduct an eff ec- tive investigation. For instance, when certain witnesses become aware of unnecessary de- tails during the interview process, they may form a version of the events relating to the complaint in their minds, which may in turn shape the answers they provide. One should note that oftentimes, going into an interview, a witness may already have some knowledge of the nature of the com- plaint through talking to the parties prior to being warned about confi dentiality, or through word spreading around the offi ce. e investigator may start interviews by ask- ing witnesses if they know why they are be- ing interviewed. Where a witness is already familiar with the circumstances surround- ing the complaint, the investigator does not need to worry as much about evading men- tion of the circumstances. Realistically, it is very diffi cult to pro- tect the identities of witnesses from other employees in an open workplace. e em- ployer should clearly emphasize that con- fi dentiality must be maintained by all. e employer may also warn all employees in- volved in the investigation that in the event they breach confi dentiality, they may be subject to discipline. At the beginning of the interviews with the complainant and respondent, the inves- tigator should remind them of their confi - dentiality obligation. e confi dentiality obligation encompasses the fact a complaint has been fi led, the details of the complaint, the fact there is an investigation being con- ducted, and anything discussed during the interview. Similarly, each witness should be given the same caution regarding their ob- ligation to maintain confi dentiality and not to disclose anything discussed during the in- terview. Witnesses should also be reminded not to discuss the interview with the com- plainant or respondent, and that if the com- plainant or respondent approaches them about the matter, they should report back to the employer. with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2016 2 | January 20 , 2016 ASK AN EXPERT on page 7 » After-discovered just cause Question: If an employee is dismissed without cause and her salary is continued during the notice period, can the employer stop payment if misconduct is later discovered that would have justifi ed dismissal without notice? Answer: Where an employee was dismissed without cause, it is possible for an employ- er to rely on after-discovered misconduct amounting to just cause to cease severance payments. However, the bar that the em- ployer must meet in order to do so is high. In Van den Boogaard v. Vancouver Pile Driving Ltd., the British Columbia Court of Appeal found that the employer was not prevented from asserting just cause when it became aware of misconduct after a without cause dismissal. e employer had termin- ated the employee without cause and paid him four weeks' salary in lieu of notice. At the time of termination, the employee re- turned the company cellphone, which con- tained text messages indicating that he had been dealing illegal drugs to co-workers dur- ing work hours. In fi nding that the employee's activities constituted just cause for dismissal, the court held that an employer may invoke just cause even though it became aware of the miscon- duct after the employee had been dismissed, so long as the employer could prove that: it was not aware of the misconduct at the time of the employee's termination; and it did not tolerate or condone the misconduct prior to the termination. In Dennis v. Ontario Lottery and Gaming Corp., the employee had been terminated without cause. She was off ered a severance package with the option of receiving the payment as a lump sum or a continuance of salary. After she accepted the severance package (having elected salary continuance), and the parties entered into a settlement agreement, the employer discovered that funds were missing from a program that the employee had administered. She argued that she took the funds with the full intention of paying it back. e employee was charged criminally with theft but the Crown dropped the charges. e employer then conducted an inter- Revealing information during harassment investigation Question: If an employer is investigating a harassment complaint, how much information about the circumstances or who is being interviewed should be revealed to the complainant and witnesses being interviewed? How can their identities be protected from other employees in an open workplace? When some witnesses become aware of unnecessary details, they may form a version of events in their minds which may in turn shape their answers. For after-discovered cause, an employer must prove it wasn't aware of the misconduct at the time of termination nor did it tolerate or condone it.

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