In earlier posts,
here, we discussed some legal issues that arise in workplace
investigations. In this post, we will discuss some of the privacy
issues that can arise.
The investigator is often asked by nervous employees whether
their identity and the information they give will be kept
confidential. This cannot be guaranteed. Employees being
interviewed should be made to understand that the information they
give may be disclosed, in whole or in part, to other parties in an
investigation as necessary.
It may not be necessary to share the identity of witnesses with
other parties when, for example, general processes or practises in
the workplace are being discussed. However, when exploring
motive, relationships and other factors, especially when
credibility is key, the identity and evidence of specific witnesses
may need to be shared. Parties to the complaint or other witnesses
with different evidence may be required to speak to the motive or
relationships affecting the evidence of other witnesses.
In a workplace investigation, the investigator is usually
gathering information that includes "personal
information" under the Personal Information Protection Act
("PIPA") in British Columbia. PIPA requires that,
subject to certain exceptions, an organization must not collect,
use or disclose personal information about an individual without
their consent. Personal information is broadly defined to mean
"information about an identifiable individual" but
excludes contact information or work product information.
There are several exceptions to the prohibition against
collection, use or disclosure. Consent may not be required if
it is reasonable to expect that the collection, use or disclosure
of personal information with the consent of the individual would
compromise an investigation or proceeding, and the collection, use
or disclosure in question is reasonable for purposes related to the
investigation or proceeding.
"Investigation" is broadly defined in PIPA to include
"an investigation related to:
a breach of an agreement;
a contravention of an engagement of Canada, or a province;
a circumstance or conduct that may result in a remedy or relief
being available under an enactment, under the common law, or
prevention of fraud;
trading in a security as defined in section 1 of the Securities
Act if the investigation is conducted by or on behalf of an
organization recognized by the British Columbia Securities
Commission to be appropriate for carrying out investigations or
trading in securities;
if it is reasonable to believe that the breach, contravention,
circumstances, conduct, fraud or improper trading practice in
question may occur or have occurred."
This exception may apply to many instances of suspected
There are many other privacy issues that may arise. But
the investigation exception is one tool that British Columbia
employers should be aware of when considering the application of
PIPA in a workplace investigation.
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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