In an earlier post, we discussed when employers may wish to
conduct workplace investigations. In this post we'll discuss
who should conduct the investigation.
Being lawyers, we usually have a quick answer to this: legal
counsel. We recognize, however, that clients don't have
unlimited funds. So practically speaking, each situation will have
to be assessed on its own facts.
In situations where a simple fact finding determination and
assessment of credibility are all that is needed, the skilled
manager can suffice, with counsel in the background to point them
in the right direction and give legal advice based on any facts
that are gathered.
In other situations, such as where the employer wishes to
demonstrate it retained a skilled expert to address a serious
workplace problem (i.e. a case of sexual harassment or alleged
systemic racism in the workplace) a lawyer with expertise in this
area is desirable.
Sometimes a client would like to maintain privilege over an
investigative process and report. If the incident is so serious
that your organization risks serious liability depending on the
outcome, you may wish for a lawyer to investigate for the purpose
of providing legal advice and assessing liability, as well as
giving recommendations based on that legal advice.
Provided the process, including any terms of reference, make it
clear that the purpose of the investigation is to give legal
advice, the entire investigative report may be privileged from
disclosure in subsequent legal proceedings.
In short, while a lawyer will cause additional expense, in very
serious situations, or in situations where you do not have the
internal capacity to conduct the investigation, legal counsel or,
at the very least, a qualified external investigator should be
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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