With the complexity of workplace law and issues, employers are
subject to an increasing number of workplace obligations.
When a workplace incident arises it's often required, or at
least advisable, that an employer conduct a prompt and thorough
In this and subsequent posts, we will review some key legal
issues that arise in conducting or directing a workplace
investigation, including privacy, confidentiality, and the issue of
We will also discuss who should conduct the investigation,
including when to use counsel, and when investigating counsel
should be different than an employer's usual employment
Finally, we'll discuss some cases that show when an
investigation has gone wrong to demonstrate the ramifications.
The first question is when to investigate. In some
circumstances, an employer will be compelled by statute to
investigate an accident. For example, the BC Workers
Compensation Act requires an employer to immediately undertake
an investigation into the cause of any accident or other incident
that resulted in an injury to a worker requiring medical treatment,
or had the potential to cause serious injury to a worker.
An obligation to investigate may also arise when instances of
harassment or discrimination are alleged in the workplace that
contravene human rights legislation. Employers who don't
remedy such misconduct may face human rights claims.
Further, the courts have held that creating a
"intolerable" workplace environment may ground an action
for constructive dismissal. Thus, even absent human rights
considerations, an employer should investigate allegations of
bullying, hostility or unfairness in the workplace. Such
investigations can provide the factual basis for a "just
cause" defence should the incident lead to the dismissal of an
employee. Also, if an employer draws unfounded conclusions
damaging to an employee's reputation without affording the
employee an opportunity to answer those allegations in a proper
investigation, it risks a claim for damages for breach of its
obligations for fair dealing in the manner of termination of the
This establishes why some of the reasons when an employer may
wish to investigate. In subsequent posts, we'll discuss
other aspects of workplace investigations.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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