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Workplace Investigations - Part 2 |
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Written by Christine Thomlinson
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Sunday, 06 July 2008 |
Hidden traps and helpful tips - Be wary of these three common problems
 Last issue, you will recall that we discussed the basic steps needed for an employer to conduct a sound workplace investigation. As investigations become more complex in the workplace, employers are finding that problems are arising even when all of these basic steps are followed. While there is no exhaustive list of the hidden traps that can exist within any given workplace investigation, we have set out below three of the more serious and common problems that can come up in an investigation and can, if handled inappropriately, have very serious consequences for an employer.
When the parties retain counsel
It
is not at all unusual today for one or both of the parties to an
investigation to be represented by counsel. Other than where a policy
might otherwise allow it, it might in theory be open to an employer to
refuse to deal with the parties’ counsel throughout such a process.
However, this is often unnecessary, and, in some cases, such a refusal
can negatively impact on an employer’s ability to conduct a thorough
investigation.
Where counsel is requesting participation in
any aspect of the investigation process, it is wise to first find out
the reason for the request before denying it outright. If, for example,
one of the parties is suffering from a medical condition (perhaps even
brought about as a consequence of the circumstances which have led to
the investigation), then the support of counsel may be the only way to
secure the employee’s participation. Similarly, good counsel can
sometimes keep order when they know that their clients might otherwise
present in interviews as distracted or unfocused. Of course, counsel
who are obstructionist should not be tolerated, but often counsel can
bring a level of efficiency to the process and can provide the employer
with some comfort that the parties were well apprised of their legal
rights.
Confidentiality commitments
Sometimes
an investigator is confronted with a situation in an interview in which
a witness or party requests a commitment to keep confidential certain
information they are prepared to disclose. In other cases, the request
is that there be an “off-the-record” discussion. In both cases, the
person being interviewed is asking that whatever they communicate be
kept as between them and the investigator and not be passed along to
anyone outside of the interview. Often, in an effort to “get at the
truth” investigators will get caught up in the moment and give this
assurance.
From a legal perspective, this can have tremendous
consequences. These are often amplified when the investigator does not
have legal training and so be unable to identify the potential
liability associated with the information they may have just agreed to
conceal.
Investigators should never give blanket commitments of
this nature. They would be far wiser to say that, while every effort
will be made to keep the information confidential, there may be
information that the investigator is required by law to pass on. The
worst-case scenario would see relevant information never being revealed
to the employer, risking even more significant legal liability in the
future because an existing problem went unchecked, even after being
drawn to the investigator’s, and by extension the employer’s,
attention.
Written reports unsupported by the evidence
Like
a legal decision handed down by a judge, the findings in an
investigation report need to be based on evidence obtained by an
investigator in the course of his process. Some investigators, not
understanding this necessity, set out findings in their reports that
are not based on evidence — or, in the worst cases, not based on
anything at all. Reports of this nature can leave an employer very
vulnerable and exposed if they seek to rely on the contents of the
report to support some disciplinary action to be taken with respect to
any of the parties.
Retaining a lawyer who is also an
experienced investigator minimizes this possibility, as lawyers are
trained to understand and apply the rules of evidence. If retaining
a lawyer/investigator is not a viable option, employers would be wise
to have counsel (internal or external) review their reports in draft
before they are finalized to ensure the information set out in the
report is sufficient to substantiate the investigator’s findings. Any
issues of this nature are far better resolved before the investigation
is concluded — and the report finalized — than when the employer is
being sued by a former employee.
Workplace investigations are
increasingly unpredictable, and even following the above suggestions
will not ensure a smooth process. However, recognizing that complex
issues do come up and that the implications of mismanagement of these
issues can have significant legal consequences are important lessons
for employers. If an employer does not have the luxury of being able to
retain a lawyer to conduct the investigation, then we recommend that
the employer’s counsel closely monitor investigations so that these
issues can be caught and dealt with as soon as possible and before they
can spin out of control.
Christine
Thomlinson, BA, LLB, is a founding partner of Rubin Thomlinson LLP, a
boutique law firm specializing in employment law and human rights
issues. Christine is a trusted advisor to senior human resources
professionals and is the co-author of Human Resources Guide to Workplace Investigations and For Better or for Worse: A Practical Guide to Canadian Employment Law. Contact Christine via e-mail at
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
or visit www.rubinthomlinson.com.
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