Canada: Top 10 Employment & Labour Issues: #3 Guidelines for Workplace Investigations

Last Updated: December 19 2014

Both complaints and workplace investigations should be handled in a fair, objective manner focusing on assessing the facts at hand and avoiding hastily drawn conclusions and whispered conversations at the water cooler. Assessing complaints and performing workplace investigations in a thoughtful, considerate and systematic manner is not only good for the employer’s work environment and employee morale, it is also effective to mitigate risk. An employer who fails to properly investigate a complaint of discrimination may ultimately be liable to the victim under applicable human rights legislation. On the other hand, claims can also arise if an employee is improperly accused of or dismissed because of allegations of wrongdoing that cannot be substantiated. An employer can manage risk by implementing, communicating and enforcing clearly worded policies setting out workplace rules, and conducting thorough and fair workplace investigations into alleged breaches of those rules.

Key Considerations in a Workplace Investigation

(a) Assess the Complaint

An employee complaint made pursuant to an employer’s reporting procedures should automatically trigger an investigation. However, where a complaint is quickly determined to be frivolous or vexatious, no further inquiry is required.

An employer should consider who appears to be involved in the events giving rise to the complaint, including current, former and non-employees, and who may have evidence relevant to the complaint. An employer should also determine what kind of wrongdoing is suspected and what laws and employer policies are engaged.

(b) Determine the Objectives of the Investigation

The employer’s objectives in conducting the investigation will depend on the employer’s legal obligations in connection with the complaint and the impact on the business should the complaint be substantiated. For example, the employer will want to consider its obligations under human rights legislation, the potential for criminal prosecution of the employee in question, and the potential for dismissal litigation. In the event that a complaint is substantiated, an employer will generally want to impose some kind of discipline and take steps to avoid similar wrongdoing in the future.

(c) Determine Whether to Involve a Third Party

An employer may wish to retain legal counsel in connection with the investigation, which may, in some cases, protect the findings from disclosure based on solicitor-client privilege. The employer will also have to determine whether the investigation will be conducted in-house or whether to engage an external investigator, possibly one with specialized expertise in areas such as computer forensics or forensic accounting. An external investigator may be perceived as more neutral, while an in-house investigator may have a better understanding of the employer's corporate culture.

(d) Determine the Status of the Parties

If the complainant does not feel safe or is concerned about reprisals, it may be appropriate to transfer him or her to another area of the workplace, make a change in reporting relationships or provide a paid leave of absence. In extreme circumstances, the complainant may be able to apply for benefits through the employer’s disability program or Employment Insurance. Workers' compensation benefits may be available to the complainant in very limited circumstances where there has been an acute and traumatic event in the workplace.

In most cases, there should be no change to the working conditions of the subject of the complaint during the course of the investigation, so as to avoid a claim that the employer pre-judged the outcome. However, where the substance of the allegations gives rise to concern for the safety of the complainant and other employees, the employer may consider placing the subject on a paid leave of absence pending the conclusion of the workplace investigation.

(e) Conducting Witness Interviews

(1) Order of Interviews

It is common for the investigator to interview the complainant, followed by any witnesses suggested by the complainant, followed by the subject of the complaint and any witnesses suggested by him or her. However, the facts of a particular complaint may suggest a different ordering. An investigator will generally want to speak to those individuals with direct, first-hand knowledge of the facts at hand.

(2) Best Practices in Interviews

Each witness should be informed that the interview process is confidential and that, depending on the nature of the complaint and the potential for legal proceedings, he or she may be called as a witness. To maintain the integrity of the investigation process and to protect employee privacy, each witness should be provided with only those details regarding the nature of the complaint that are necessary to make the interview meaningful.

It is good practice to ask a witness to review notes taken during the interview by either the investigator or an observer and sign them to indicate that they accurately reflect the discussion that took place. Alternatively, a witness statement may be prepared and presented to the witness to sign at a later date. Witnesses should also be advised to contact the investigator if they have any additional information, corrections or clarifications to make to the facts discussed in the interview.

Since memories fade with time, it is important to meet with witnesses and conduct interviews as soon as possible after the alleged incident or event.

(3) Interviewing the Complainant and the Subject

The investigator will generally want to reassure the complainant that the employer is taking the allegations seriously, and explain that further information is needed to conduct a complete investigation.

The subject of the complaint should be given the opportunity to fully respond to the allegations made. In addition, the investigator should reassure him or her that the complaint is being dealt with in as confidential a manner as possible. Where the complaint concerns allegations of discrimination under human rights legislation, the investigator should deliver a caution that reprisals in response to such complaints are prohibited.

(4) Dealing with Missing Evidence

The investigator should have the ability to review records belonging to the employer, such as employee files, email messages sent to and from the employer’s computer system and expense reports. However, an investigator does not have the power to compel an employee or third party to provide records that belong to them. In addition, the investigator may need to be cognizant of privacy legislation protections that may apply to the collection, use and disclosure of certain information relevant to the investigation.

Where a witness refuses to provide relevant documents without providing a reasonable explanation for such refusal, the investigator may choose to draw an adverse inference against that witness

(f) Finalizing the Investigation

The investigator’s role is to make findings of fact, including with respect to witness credibility. These factual findings will then allow a determination to be made by either the investigator or the employer, informed by legal advice, as to whether the complaint is substantiated or unsubstantiated, or whether the investigation is inconclusive. The standard of proof used in a workplace investigation is usually the “balance of probabilities”, meaning that it is more likely than not that the alleged misconduct took place. However, it may be advisable for employers to require a greater degree of certainty where the conduct at issue is criminal in nature.

The report produced as the result of a workplace investigation may become evidence in further legal proceedings, such as an employee grievance, human rights complaint or civil action. It is therefore important that the investigation report be carefully drafted.

While the outcome of the investigation should be communicated to the parties, the final report should generally be circulated only amongst the final decision-makers.

(g) Taking Action

If the complaint is substantiated, the employer should take action to:

    • Prevent the harassment, fraud or misconduct from recurring. This objective can often be achieved through training and education of the employer’s employees, which may include counseling for the respondent.
    • Correct the negative impact of the incident on the complainant, for example, by accommodating any requests for transfer, relocation or changes to reporting structure.
    • Discipline the subject of the complaint in a manner proportional to the severity of the misconduct, up to and including dismissal.

If the complaint is not substantiated, the employer should notify the parties accordingly and explain how this conclusion was reached. The relationship between the parties, or the parties and members of management, may have broken down during the investigation and may need to be rehabilitated.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
In Association with
In Partnership with
Other Canada Advice Centres
Competition and Antitrust
Mergers and Acquisitions
Labour and Employment
More Advice Centers
Significant Recent Cases
A list of the most recent and notable Blakes cases that gives you an overview of the firm's depth of knowledge and experience.
Useful Resources
Organizations should take preventative steps prior to a breach occurring by having reasonable policies and procedural safeguards in place, and conducting necessary training.
This checklist is intended to help organizations take the appropriate steps in the event of a privacy breach and to provide guidance in assessing whether notification to affected individuals is required.
Organizations subject to the Personal Information Protection Act (PIPA) are required to report a breach of personal information to the Commissioner.
An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act.
Designed as one of the most stringent anti-spam regimes in the world, the legislation imposes important restrictions on the use of electronic messages to encourage participation in commercial activities.
Upcoming Events
Our professional development seminars provide legal and other professionals with access to programs that have been accredited by those governing bodies in various jurisdictions across Canada that have set educational credit requirements.
Tools
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.