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Workplace investigations: Part 1 - The Basics |
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Written by Christine Thomlinson
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Thursday, 27 March 2008 |
Seven steps to getting you there
 The practice of human rights law in the workplace is changing as courts are increasingly willing to hear and adjudicate violations of employee human rights. In some jurisdictions like Ontario, human rights legislation is even being amended to make access to justice quicker and more efficient. When we add this to the number of cases in recent years in which judges have had occasion to comment on employers’ processes for conducting workplace investigations (or lack thereof), the need for sound workplace investigation practice becomes apparent.
Investigations can take many different forms: informal or formal, internal or external, and so on. There is no “right” time to conduct a workplace investigation, as the specific circumstances of the case will dictate the proper timetable. Many employers today find themselves seeking legal advice even before a workplace investigation begins, because it is not always clear a) whether there even exists a legal obligation to conduct an investigation based on the facts, and, if there is, b) what type of investigative response is required.
What does seem more certain are the hallmarks of a good investigation. Thanks to the judicial consideration of courts and human rights tribunals across the country, we have a clear idea of the basic steps that form a sound workplace investigation. In each case, we now know that employers should, at a minimum, follow these basic steps:
1. Appoint a qualified investigator.
Courts consistently point to the untrained or unskilled investigator as a basis on which to assign liability to an employer who is accused of having conducted a faulty investigation. More than this, an experienced investigator can assist the employer in dealing with difficult, unanticipated issues that may arise in the course of the case.
2. Comply with any policy that applies to the subject matter in question.
If the investigation is to be conducted pursuant to an employer policy, the employer must comply with the terms of the policy or they run the risk of threatening the integrity of the entire process.
3. Ensure the investigator is unbiased, fair, and acts in good faith.
The investigator must be objective and impartial, and any investigator who enters the process with a preconceived impression of guilt or innocence of the accused should not be allowed to proceed. Many employers also give thought to whether or not an investigator, particularly one appointed internally, will also be perceived to be fair by the parties.
4. Complete the investigation as quickly as possible.
There is no “right” length for an investigation, as there can always be unexpected events that cause unavoidable delay, such as the illness of a party or a material witness. It is generally thought that the employer must take all reasonable steps to complete the investigation in as timely a fashion as possible, while at the same time balancing the need to be fair and thorough.
5. Provide the respondent with disclosure of the details of the complaint against him or her. Allow the respondent an opportunity to provide a response to the allegations.
In the same way that our legal system requires disclosure and pre-hearing discovery for those involved in civil and criminal cases, a proper investigation requires that the person who has been accused (the “respondent”) be provided with advance notice of the allegations against him or her before being asked to provide a response. To be clear, this requires more than a presentation of these facts to the person in the interview meeting. The respondent should be provided with details of the allegations (ideally in writing) in advance of an interview meeting, so he or she can properly prepare for the meeting.
6. Keep the parties apprised of the status of the investigation, especially if there are delays.
In addition to being a required element, this is just sound practice, as the parties can easily move beyond the investigative process and take alternate legal action if they feel that the investigation is not serving their needs.
7. Report back to the parties on the outcome of the investigation.
There are different schools of thought as to the level of detail required here, and the answer may differ from case to case. However, it is clear that the parties are entitled to know whether findings were made in support of the allegations advanced.
Following the above steps will not guarantee a perfect or even uncomplicated investigation. Each case is unique, and difficult questions and challenges can present themselves in what appears to be even the most simple investigation. However, a court or human rights tribunal will expect that the above steps be followed to satisfy a minimum threshold of fairness. Where matters become more complex, employers would be well advised to seek the advice of counsel with expertise in workplace investigations.
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 coauthor of Human Resources Guide to Workplace Investigations and For Better or For Worse: A Practical Guide to Canadian Employment Law. Contact Christine via email 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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