As an employer, you are legally obligated to protect the rights of your employees by providing a safe workplace environment. More often than not, you may find yourself needing to investigate misconduct allegations ranging from bullying to harassment.
Without effective policies and appropriate investigation processes in place, you risk significant liability and damage to the employees’ confidence in their employer. Workplaces are often the subject of intense scrutiny due to their flawed and/or negligent investigation techniques.
Zoe could help you recognize the benefits of an effective investigation process when allegations of misconduct arise at your workplace.
WHAT IS A WORKPLACE INVESTIGATION?
If you, as the employer, receive information which suggests an employee has engaged in serious misconduct, you may be want to conduct an investigation so that you make a legal decision and mitigate your risk for litigation.
If you end up in Court, you will have to prove that you acted reasonably and comprehensively in your response to the alleged complaint.
A just and reasonable workplace investigation will provide the employer with the necessary information that will assist in deciding on the outcome of the alleged misconduct.
If the findings of the investigation indicate that the employee is guilty of the misconduct then the employer may have just cause to dismiss him/her. If, however, there is insufficient evidence indicating that the alleged misconduct took place, the employer may have to consider other creative solutions for resolving workplace conflict.
WHAT CONDUCT WARRANTS A WORKPLACE INVESTIGATION?
The following list provides examples of misconduct that warrants a workplace investigation:
- all forms of discrimination;
- sexual harassment and other forms of inappropriate behavior;
- workplace violence which includes psychological harassment;
- visible hostility within the workplace environment;
- a safety complaint;
- substance abuse;
- violation of workplace policies; or
- workplace health and safety incidents
WHO SHOULD CONDUCT THE INVESTIGATION?
One of the first matters that must be decided on when an investigation needs to be conducted, is whether the investigation should be led by an internal investigator or there is a need for external investigator.
This is largely determined on a case by case basis and is dependent on the type of complaint, the parties involved, and the relevant workplace policies in place.
The following list contains examples of situations that warrant the consideration of hiring a third-party investigator:
- the claim involves sensitive subject-matter such as sexual assault, racist and hateful conduct, criminal behaviour;
- the employee has had more than one serious complaint;
- there is a possibility that the internal investigator may be biased (for example, he/she may be friends with the employee against whom the complaint was made); and
- the misconduct may give rise to other legal proceedings (criminal charge, civil case).
WHO IS CONSIDERED TO BE AN “IMPARTIAL PERSON”?
Whether the employer has opted for an internal investigator or a third-party, the person undertaking the investigation shouldn’t be, in any way, influenced by the employer’s preferences or whether or not he/she believes in the merits of the complaint.
EXAMPLEThe case of Vernon v British Columbia (Ministry of Housing and Social Development)(Liquor Distribution Branch), 2012 BCSC 133 is a good example of when the Supreme Court found the investigator had not acted impartially or in a just manner. Briefly, the facts centred on a wrongful dismissal case in which the plaintiff was dismissed in response to a complaint by an employee who alleged that she had been bullied and was the subject of consecutive offensive comments.
The labour relations advisor, who was appointed to investigate the alleged misconduct, had been a confident of the plaintiff. The plaintiff often consulted with the investigator on varying employment issues.
The Court found that the investigation was distorted from the start and held that the “interrogations were not carried out impartially” and the employer was responsible for substantial liability.
WHAT CAN YOU EXPECT FROM A WORKPLACE INVESTIGATION LAWYER?
Whether or not you nominate an independent external investigator, there are various practical considerations that you need to keep in mind, namely:
- Training And Experience: Zoe has extensive experience in employment law and workplace investigations.
- Objectivity: the investigation will be free from any partiality and solely based on the assessment of credible evidence.
- Timing: the need for an investigator may arise on short notice. Zoe can work out a mutually agreeable arrangement to conduct the investigation.
- Privacy And Confidentiality: as the subject matter of the investigation may be sensitive, Zoe could protect the rights to privacy and confidentiality of both the employer and the employee.
- Effective Communication: although the length of the investigation varies from case to case and largely depends on the difficulty of the case, Zoe strives to conduct timely investigations.
Should you have any further questions regarding the investigation process or if you are seeking an independent investigator or assistance from our employment lawyers, please consider speaking to Zoe about your legal options.