The truth about workplace investigations is that the cost of inadequately or completely failing to investigate workplace issues has risen dramatically in recent years. This failure to comply has serious consequences as evidenced by the following three workplace complaints that should be investigated.
1. Human rights complaints
Failure to investigate a human rights violation could cost an employer $7,500 (or more) in damages regardless of whether there was a violation. Although the Ontario Human Rights Code (the code) does not require that an employer investigate an alleged violation of the code, adjudicators appointed under the code have imposed this duty on employers. To avoid this kind of damage award, investigators should be trained in human rights and in workplace investigation.
2. Wrongful dismissal actions
If an employer believes it has just cause to terminate an employee but its internal investigation is flawed, the courts can and have ordered the employer to pay punitive damages to the terminated employee. This can be very costly. For this reason, we recommend an employer complete a full investigation before the termination, although it is not required. And, in some instances of misconduct an employer may need to hire a third party such as a forensic accountant or an IT specialist to conduct the investigation.
3. Workplace harassment and violence complaints
A violation of the Ontario Occupational Health & Safety Act (OHSA) can result in a fine of up to $500,000. Under the OHSA an employer is required to investigate allegations of workplace harassment and workplace violence. Investigators assigned to these kinds of complaints should receive occupational health & safety training and workplace investigation training.
Complex legal issues can arise out of workplace investigations. Here are two such issues:
1. Who should perform workplace investigations; an in-house investigator, lawyer, or professional workplace investigator?
Some issues to be investigated are straightforward and an employee can conduct the investigation. But, sometimes the issue(s) to be investigated is very complex, sensitive or highly politicized and it is necessary to hire an outside workplace investigator.
According to workplace investigator Monica Jeffrey, one reason to hire an impartial investigator is to eliminate actual or perceived internal bias. This is particularly true when the allegations involve a supervisor, manager, partner and/or a business owner. An investigation conducted by a third party, neutral investigator will often go a long way in satisfying an employee’s expectation that his/her complaint is being considered in a fair and equitable manner.
2. Can an investigator’s notes be used against the employer in subsequent legal proceedings?
This is a very tricky legal issue and the answer is sometimes “yes”. In a recent arbitration case, the employer hired an investigator to conduct an investigation and the arbitrator found that the investigator’s report was not protected by solicitor-client privilege even though the investigator was a lawyer. If legal proceedings are expected and an outside investigator is to be hired, it is important that all communication flows through the employer’s lawyer to ensure solicitor/client privilege.
Today, conducting adequate workplace investigations is crucial in a number of situations. Increasingly the investigation process is being subject to judicial scrutiny and courts are starting to order employers to pay damages for failing to investigate certain workplace complaints, or for conducting faulty investigations.