A deep dive into best practices of workplace investigations

Articles

Contained within the complexity of employment and labour law are the obligations of an employer, including the obligation to conduct prompt and thorough investigations when faced with workplace incidents.

While court and tribunal cases regarding workplace investigations used to be few and far between, more and more we are seeing workplace investigations featured prominently in case law. Within the Canadian employment law context there is no singular, legally required approach to workplace investigations regarding employee misconduct. However, recent case law suggests that employers are being held to an increasingly higher standard of impartiality when it comes to such investigations, and the damage caused by a poor investigation may become more detrimental than the complaint itself.

When to Investigate

There are many situations where a workplace investigation would be advisable, if not mandatory. In some circumstances, legislation will contain explicit statutory requirements to investigate workplace incidents, such the BC Workers Compensation Act, which requires investigations into the cause of any accident or incident that resulted in an injury to a worker. There is also an obligation on the employer to investigate following allegations of harassment or discrimination that contravene human rights legislation. Additionally, courts have held that creating an intolerable work environment may be grounds for an action in constructive dismissal, therefore an employer should investigate allegations of bullying, hostility or unfairness, regardless of human rights considerations. Finally, a workplace investigation may be advisable to protect the employer from liability when dealing with employee misconduct and just cause dismissals.

How to Investigate

The approach to workplace investigations, determining who, what and how an issue should be investigated, will vary depending on the regulatory framework involved, the potential of legal exposure in question as well as the issue at stake. A poorly orchestrated investigation, plagued by undue delays or conducted by unqualified investigators, has the potential to undercut an employer’s ability to rely on a termination for cause at trial and could lead to significant awards for aggravated or even punitive damages.

A comprehensive workplace investigation is one that is conducted promptly, impartially and viewed as a fact-finding mission, where all those involved are treated fairly and provided with ample opportunity to respond to questions and allegations. Some of the key legal issues that may arise during workplace investigations include privacy, confidentiality and legal privilege. The employment lawyers at Clark Wilson have the skills and experience required to conduct privileged and confidential workplace investigations to help employers mitigate risk and avoid potentially costly consequences, where a neutral third party inquiry is required.

The material provided in this article is for general information only and should not be relied on as legal advice or opinion. If you have any questions about workplace investigations, please contact our workplace investigation practice group.