CASUAL LEGAL: Workplace Investigations: The Practical Basics

Workplace Investigations: The Practical Basics

By Anthony Purgas

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

 

Every workplace deals with something that needs to be investigated at some time: whether it is an employee unhappy with their schedule or a harassment or bullying complaint. Regardless of whether the incident is in a unionized or non-union atmosphere, there are some fundamental principles that all employers need to keep in mind:

1. Take the complaint seriously. Never assume at first instance that there is no basis for the complaint or that the complaint is being made maliciously. Even if the same individual has made a number of spurious complaints in the past, if any complaint is ignored or not dealt with seriously, employers can face significant consequences if they did not act on a valid complaint.
2. Get initial details of the concern. Before taking any steps, ask the complainant for the Four ‘W’s (who, what, when, where). This information helps the employer determine who is the best person to appoint as an investigator and how serious the issue is.
3. Appoint an investigator. As mentioned above, the first decision the should be made is determining who the person investigating the complaint/concern should be. In most circumstances, a human resources manager or the employee’s supervisor is best-suited to investigate. However, you should look at any potential conflicts between the investigator and the issue of concern. You need to ensure the person investigating would be seen by any third party to be neutral to any investigation. Sometimes, this may require getting a third party (such as a workplace investigator or a lawyer) to conduct the investigation.
4. Documenting the investigation. Once the investigator determines the order and number of witnesses to canvas, they should make detailed and accurate notes that are organized and kept in a manner that can be reviewed at a later date if the investigation itself is ever brought into question.
5. Decision-making and closing the investigation. Once the investigation concludes, the investigator will evaluate all the information and prepare a report, which may be large or a short letter. After a decision is made, all parties involved should be informed of the outcome. This information should not include any personal information relating to any individual without that individual’s consent. Also, any request for confidentiality from the witnesses should be respected to the scope appropriate.

There are many cases involving employers paying tens of thousands of dollars and more as a result of conducting improper or negligent investigations. In addition, if it is a health and safety or harassment issue, an employer can face even further liability under Occupational Health and Safety for failing to take reasonable steps. The above should provide a general guide but every incident should be considered carefully.

---

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca (riskcontrol[at]auma[dot]ca), or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.