Workplace investigations have become a common feature in employment law. In fact, in Ontario there is a statutory obligation on employers to conduct an investigation in certain situations such as when there is a complaint of harassment. However, how the employer conducts a workplace investigation can vary depending on a wide array of factors such as the location or size of the workplace or the type of complaint. For instance, using a third party investigator may be a lot easier when the workplace is larger or located in a city like Toronto than if the business premises of the employer is located in a small rural town.
However, the investigation always contains two basic parts. The first is an information-gathering phase and the second is the report. In the information-gathering phase, the investigator may use a variety of tools in order to obtain information such as in-person interviews of witnesses or the review of documentary evidence.
In the next stage, typically an experienced third-party workplace investigator would then formulate a report to the employer. Sometimes (though not always) a workplace investigator would even present recommendations to the employer (such as whether to discipline a particular employee) at the conclusion of the report. Many workplace investigators, however, refrain from providing recommendations to the employer as such a step could be construed by those involved as providing legal advice, which would not be appropriate.
There are some issues that may occur during the course of the investigation that may “taint” the investigation’s outcome. Employers who deeply care about their business tend to be predisposed towards a certain outcome or result of the investigation without keeping an open mind. This is understandable because they would often have a “hunch” about a particular employee’s misconduct but, in legal and ethical terms, that is not enough.
If you are an employer, you should be aware that a dishonest investigation would do you more harm than good. The purpose of the investigation is look into whether misconduct was committed not to confirm that misconduct was committed. An employee who is under investigation should be entitled to “meet their case,” and in doing so should be presented with particulars and be given a meaningful opportunity to respond to the allegations levelled against them. Failure to do so may render the investigation not only meaningless but, if conducted in bad faith, result in greater liability to your company.
The converse is true: if you are an employee, resist the urge to quit your job simply because you are advised of being the subject matter of an investigation. Attempt to appreciate the employer’s point of view and where the company is coming from. Employers have little reason to disrupt the workplace, involve staff in a quasi-legal and stressful process and spend tens of thousands of dollars on a workplace investigation. Unless the investigation is patently flawed, it is likely better to see it through and, if necessary, obtain legal advice in the course of it in order to try to protect your interests.
Ultimately, both parties should be aware that the outcome of a workplace investigation is not a judicial ruling as it would be if a matter were tried in a court of law. Whatever the result, it is far from certain what bearing a workplace investigation may have in the event of an actual employment law lawsuit. You should rest assured, however, that if the investigation is a material factor in the dispute, the parties’ conduct during the course of the investigation (and its outcome) would be scrutinized by the court if it comes to that.
