With the recent influx of large organizations announcing imminent workplace investigations and the release of high-profile workplace investigation reports flooding mainstream media (for example, Uber Commences Workplace Investigation; PSIC’s Case Report on the Canadian Food Inspection Agency, PSIC’s Case Report on the Public Health Agency of Canada), it is a good time to revisit some workplace investigation basics. With changes to legislation (Bill 132), recent case law and public opinion in general, employers need to get workplace investigations right the first time.
Immediately upon being made aware of a problem, employment counsel can assist in determining if a workplace investigation is required and tailoring the proper strategy. Specifically, there are situations where a workplace investigation may be conducted internally. However, more often than not it is prudent for an employer to retain an external investigator and employment law counsel can assist in finding the right external investigator for the situation. Employment law counsel is, at times, also trained to conduct such investigations for employers.
Key reasons to hire an experienced external workplace investigator include:
1. Impartiality
You are a small company and you do not have a department dedicated to HR. When you receive a workplace complaint from an employee, you have no idea where to turn or what to do with it. Or, you may think Sally your accounting clerk who read an article about workplace investigations can handle such an endeavour.
Maybe you have an HR department. You pay those employees a competitive salary. You expect them to conduct all aspects of HR related functions, including investigations.
Your HR employees are a part of your business. They interact with your other employees on a social and professional level. Typically, they sign off on promotions, deny promotions, approve Performance Improvement Plans, are involved in the discipline process, etc. These HR employees probably also attend work functions with the rest of your staff. Maybe a holiday party, where one of your employees alleges he was sexual harassed. Your HR employee may not have witnessed the harassment, but maybe they spoke with the complainant after the incident happened. Not about the incident, but socially. They witnessed the complainant’s demeanour, tone, conversation etc. That HR employee is now a potential witness in your investigation.
The law requires that workplace investigations be conducted by an impartial investigator who has the necessary knowledge, training and experience.
2. The Allegations are Serious
If an employee’s job is on the line, especially a high-level manager, they may insist upon a neutral, third party investigator. Also, the more serious the allegations, the more scrutiny the investigation may be under.
3. Lack of Time and/or Resources
Most investigations require an employer to act quickly. For this to happen, an employer needs sufficient resources, which can be a challenge. A third party investigator should be retained to ensure an investigation can be completely quickly and fairly.
4. Re-establishing Morale
Complaints of wrongdoing can seriously affect working groups and an entire workplace atmosphere. Workers feel more comfortable reporting incidents and accepting an outcome when they know the employer has taken the matter seriously. When a company goes out of its way to hire a third party investigator to investigate a complaint, it elevates employees’ confidence and trust in their employer.
5. Bullet-Proofing the Investigation
Hiring a third-party investigator helps safeguard the investigation against allegations of procedural unfairness. This may help you down the road, especially if there is a law suit.
6. Hiring a Lawyer as a 3rd Party Investigator may attract Solicitor-Client Privilege
Using a lawyer that provides legal advice attracts solicitor client privilege. A lawyer can help structure an investigation to help protect privilege. The reality is, you will likely use a workplace investigation report as part of a defence, meaning, it will get disclosed and you will have to waive privilege. However, privilege is important for two main reasons:
- You can control the timing of disclosure, by claiming privilege over its contents until it is advantageous to disclose the report.
- When we are hired to conduct a workplace investigation, we always define the scope of the work we have been asked to do. However, in the majority of cases we learn information that we did not anticipate learning. You may not want to waive privilege on this extraneous information we have learned because it is important or sensitive to your company and/or because it may not be relevant to the investigation you asked us to complete. We can protect this information through our solicitor client privilege.
If you would like to discuss the need for a neutral, third-party workplace investigation, or any other employment and labour matter, please do not hesitate to contact Grace Skowronski at 613-234-2500 ext. 225, or any other of our lawyers.
The above-noted content is not intended to be legal advice and should not be taken as such. Professional legal advice should be sought to address specific events and situations.
