Canada: Workplace Investigations

An employer's decision to respond to an employee complaint with a fair, thorough, and well-conducted workplace investigation is critical in ensuring that any decision made with respect to that complaint is well reasoned and justifiable.

The choice of the investigator and conduct of the investigation play critical roles in protecting an employer from liability in subsequent legal or human rights proceedings. A recent Saskatchewan Labour Relations Board decision highlights the importance of ensuring that workplace investigations are well conducted by a respected and thorough investigator.

Considerations when conducting workplace investigations

Employers often conduct an informal "ad hoc" internal investigation in response to an employee complaint. While this may be appropriate when the complaint is minor and relates to an isolated incident, investigations relating to allegations of serious misconduct warrant the involvement of an impartial external investigator.

Should litigation, a grievance or a human rights complaint follow the investigation of the employee's complaint, a decision supported by an impartial investigator's report following a well-conducted investigation will position the employer well.

In B.P. v Administrative and Supervisory Personnel Association,1 the complainant was a former employee of the University of Saskatchewan. She had initially been hired as an unpaid practicum student, but began being paid what the university termed an "honorarium" and was eventually hired as an employee. The complainant became part of a union once she was hired as an employee.

She complained to the university of harassment by her colleagues and management, and that she had been underpaid while a student. The university responded by hiring an external independent investigator. (Andy Robertson, head of Norton Rose Canada LLP's Calgary employment and labour practice, was the investigator retained by the University of Saskatchewan in these proceedings.)

Management supported the investigator in ensuring that his investigation was thorough. He conducted interviews and prepared a detailed report, as well as a summary, in which he concluded that while management had handled the situation poorly, the employee's allegations of workplace harassment were not substantiated.

The university relied on the findings in the investigator's report in concluding that while there had been no harassment, the employee was entitled to additional pay, which was provided to her.

The union also received a copy of the report. The employee wanted to grieve the dismissal of her harassment claim but, relying on the investigation report, the union refused to do so. The employee brought proceedings against the union, claiming it had failed to discharge its duty of fair representation.

The Saskatchewan Labour Relations Board found that the union was entitled to rely on the investigation report in deciding not to grieve. As is noted in the decision, such reliance is reasonable where the union is satisfied with the investigator's "appointment (i.e., his independence and impartiality), his credential (i.e., his experience or reputation for conducting a fair and thorough investigation); and that no egregious error or fundamental breach of natural justice occurred in his investigation." (At para. 73.) These criteria had been met in this case.

This decision stresses the importance of retaining an appropriate investigator. A fair and thorough investigation can be confidently relied upon by an employer and will ultimately assist the employer in convincing the court and sometimes (as in this case) the opposing party that its conduct was reasonable.

Privilege over workplace investigation reports

Many employers take the position that any report produced is confidential and does not need to be disclosed to the other side. However, there can be value in disclosing the report's contents to the complainant and the union, so they can see the basis for the employer's decision.

If an employer is concerned about disclosing comments made by other employees during the course of the investigation, the investigator may be asked to prepare a comprehensive summary of his/her findings, withholding specific comments made by witnesses.

An employer may be compelled to produce the report in subsequent legal proceedings. While employers sometimes hire a lawyer to investigate and then take the position that the report is subject to solicitor-client privilege, this argument was rejected in Ontario Nurses' Association v North Bay General Hospital,2 when the arbitrator ordered the investigation report be produced over the employer's objections. The arbitrator found that although a lawyer had acted as the investigator, in the context of a workplace investigation, when an investigator acting independently simply happens to be a lawyer, solicitor-client privilege does not attach.

Is the investigator qualified?

Recent legislation in Alberta requires that investigators be licensed under the Security Services and Investigators Act. If you are hiring an outside investigator, ask if the candidate is licensed or is exempt. Lawyers are exempt from holding a licence under the Act. (Internal investigators employed by the employer are not required to be licensed.)

Tips for employers when faced with an employee complaint

Assess the nature of the complaint

While a minor isolated incident may require only an informal response, investigations relating to conduct that may result in a dismissal for just cause, potential human rights complaints (including those relating to workplace personal or sexual harassment) or longstanding disputes between employees warrant the involvement of an impartial external investigator.

Retain a reputable workplace investigator

Instead of trying to deal with a complaint of serious misbehaviour on an ad hoc basis, retain a reputable workplace investigator to conduct an impartial investigation and prepare a report that provides the basis for an informed decision. Considerations to keep in mind when hiring a workplace investigator include his/her independence and credentials (experience and reputation).

Norton Rose conducts workplace investigations for employers, and can refer clients to appropriate workplace investigators should the need for an investigation arise.

Support the workplace investigator during the conduct of the investigation

To conduct a fair and impartial investigation, the workplace investigator needs the employer's support to conduct employee interviews, review relevant documents and prepare a comprehensive report.

Rely on the workplace investigator's report in responding to the complaint

The value of a workplace investigation is it provides a basis for the employer to make the appropriate decision. Ensure that any decision made is well supported by the findings of the workplace investigator.

Have the investigator prepare an executive summary

This may allow the option of producing the summary, not the entire report, and minimizing the adverse effects of disclosing specific information disclosed by identified witnesses, who may feel violated when their evidence has been attributed to them.

Norton Rose Canada LLP

Norton Rose Canada LLP performs independent workplace investigations for employers who are not currently clients of Norton Rose. Norton Rose Canada LLP also advises clients who are faced with an employee complaint and can assist in developing comprehensive workplace policies that set out the circumstances in which an investigation is warranted.

Footnotes

1 LRB File No. 065-11 [B.P.].

2 [2011] O.L.A.A. No. 506 (QL).

Norton Rose Group

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