Canadian HR Reporter

CANADIAN HR REPORTER MARCH 2018 EMPLOYMENT LAW 5 How to conduct an eff ective (and defensible) workplace investigation Planning, preparation, organization, skill, speed and discretion required INCREASINGLY, employers are recognizing the importance of conducting a workplace investiga- tion, not only to ensure statutory compliance, but also to discover workplace problems, prevent re- currence, take corrective action and prepare for litigation, media- tion or arbitration. How an investigation is handled is critical. A successful workplace investigation requires planning, preparation, organization, skill, speed and discretion. While the law does not set out hard-and-fast rules regard- ing specifi c do's and don'ts, at the very least, the investigation must be conducted in a manner that is consistent with the principles of procedural fairness. If not, the results of the inves- tigation may not be considered reliable by an adjudicator, and the organization may be exposed to liability. Why investigate? In some provinces, an employer has a statutory obligation to in- vestigate. For example, in Ontario, an employer must conduct an "ap- propriate" investigation into an al- legation of workplace harassment. In British Columbia, Manitoba and Nova Scotia, an employer has an obligation to investigate an in- cident of workplace violence. Beyond a statutory require- ment to investigate, common cir- cumstances in which an employer should consider conducting an investigation include (but are not limited to) allegations of: • discrimination • harassment or violence • inappropriate or unprofessional behaviour • a hostile or disruptive work environment or where there has been a threat • vandalism and other sabotage • violation of a workplace rule or policy • a safety complaint • workplace theft • suspected substance abuse • a statutory violation • a workplace dispute. Preliminary considerations ere are a number of preliminary considerations before an investi- gation can begin. Each should be considered as soon as possible to ensure the investigation proceeds expeditiously and efficiently. ese include: • Is there a legal requirement JOINT VENTURE BY: PROPER > pg. 24 Lisa Bolton and Gerald Griffi ths LEGAL VIEW 2013 RANKED Your workplace experts. Employment Law Labour Law sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz If you're an employer, we're the only call you need to make. 24 HOUR 416.420.0738 At Sherrard Kuzz LLP we collaborate with our clients to anticipate and avoid human resources problems. We know proactive steps today will prevent Murphy's Law tomorrow. From human rights to health and safety, and everything in between… When it comes to the workplace, 60 per cent of workers have experi- enced harassment, with 30 per cent experiencing sexual harassment and 21 per cent experiencing violence. Seventy-fi ve per cent of workers who had experienced harassment, sexual harassment or violence reported the most recent incident, but 41 per cent said no attempt was made to resolve the issue. Source: 2017, Harassment and Sexual Violence in the Workplace – Public Consultation: What We Heard (Employment and Social Development Canada) Who resolves the incidents? union: 21 per cent supervisor: 20 per cent co-worker: 19 per cent Notable cases Green v. Canada (Aboriginal Affairs and Northern Development), 2017 CarswellNat 7095 (F.C.): Katherine Green worked at the Department of Aboriginal Affairs and Northern Development Canada (AANDC). She alleged a senior policy advisor harassed her with unwelcome comments. After interviews and a review of documents, an independent investigator delivered a report that found there was "exaggerated and inappropriate language," but it didn't meet the government's defi nition of harassment. Green appealed, but the court said the report was "exhaustive in its factual fi ndings and in its consideration of the evidence," so it was reasonable for AANDC to use that in its decision. Alberta Health Services and HSAA (Page), Re, 2016 CarswellAlta 2370 (Alta. Arb.): Tim Page was a forensic counsellor at a group home in Edmonton. A new manager learned of an informal shift-sharing practice where staff left shifts early. She interviewed 22 workers and several admitted to doing so, but Page said he did not when a casual counsellor was on duty. An investigation found he was lying, and Page was dismissed. The board agreed the "fraudulent conduct of (Page) over such an extended period of time," along with his dishonesty, seriously damaged the trust AHS could have in him. Thomas and Shamattawa First Nation, Re, 2017 CarswellNat 5067 (Can. Labour Code Adj.): Nancy Thomas was a community co-ordinator for Shamattawa First Nation in Manitoba. The band manager learned of an altercation between Thomas and a co-worker and spoke with other employees, but there were no witnesses. The band terminated Thomas' employment for "verbal and physical assault," as well as other bad behaviour, but an adjudicator found Shamattawa didn't properly investigate, Thomas wasn't interviewed and Shamattawa lacked good faith in its handling of his dismissal. The band was ordered to pay him 40 weeks' pay plus punitive damages for a total of $57,000. Dealing with harassment Credits: (top icon) GlebGleb (Shutterstock), (chart) Monika Beitlova (Shutterstock) Who do you tell? 64% 58% 22% 12% co-worker supervisor HR advisor workplace committee/health and safety rep

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