With a rising number of employees raising allegations of workplace misconduct and pursuing wrongful dismissal claims, it is more important than ever for employers to conduct thorough and impartial workplace investigations that observe principles of procedural fairness. Failure to conduct a fair investigation can open employers up to litigation risk, and courts have not been shy to criticize employers for breaching principles of procedural fairness and their duty to act in good faith when conducting workplace investigations.
While there is no perfect formula for conducting a bulletproof investigation, there are a few key steps that employers can take to help protect the integrity of their investigations:
- Select a neutral and competent investigator.
A key element of procedural fairness is providing both the employee alleging misconduct (the "complainant") and the employee accused of misconduct (the "responding party") with an impartial factfinder to conduct a neutral and unbiased investigation. Although there is no universal test to determine whether an investigator or investigation is truly unbiased, Canadian courts have commented on the importance of neutrality in workplace investigations. In Southern Chiefs Organization Inc. v. Dumas, 2016 FC 837, Justice Diner stated that "the test for neutrality is whether the investigator approached the case with a 'closed mind'" (para 31). In Haarsma v Deputy Minister of National Defense, 2013 PSST 5, another Canadian Tribunal stated that "fairness requires that there be no reasonable apprehension of bias," and summarized the test at para 28 as:
Would a reasonably informed bystander looking at the process reasonably perceive bias on the part of one or more of the persons involved in the assessment of the complainant?
As such, whether an employer chooses to elect an internal investigator or refer the investigation to an external third party, employers should ensure that there are no personal or professional relationships between the investigator and the parties that could impact the investigators ability (or the perception of the investigators ability) to act neutrally and without bias.
It is also important that the selected investigator is competent. The skills required to conduct a workplace investigation, such as interviewing, assessing the credibility of witnesses, and understanding concepts of procedural fairness and due process, require specific knowledge and experience. When selecting a workplace investigator, employers should consider the investigators education, professional qualifications, and experience conducting workplace investigations to ensure that they are competent to conduct the investigation.
The failure to select a neutral, unbiased, and competent investigator can have significant consequences for employers. In Elgert v. Home Hardware Stores Ltd, 2011 ABCA 112, the employer appointed an investigator who had no relevant training and had a relationship with the complainants father. The Alberta Court of Appeal awarded significant punitive damages to the plaintiff, in large part due to the bias and preconceived ideas of the investigator (paras 84 and 104).
Ensuring that the investigator is both unbiased and competent will play a crucial role in ensuring that parties are provided with fair treatment throughout the investigation and that findings are based on an objective assessment of the facts.
- Develop a clear mandate and investigation plan
The investigator should also have a clearly defined mandate from the outset of the investigation. The mandate should define the scope of the investigation, the parties involved, and identify the policies and legislation that will guide the investigation. The mandate should also specify whether the investigator will be making findings of fact alone, or whether they will also be rendering findings of policy and/or law, such as whether the responding party breached any workplace policies, the Human Rights Code, or the Occupational Health and Safety Act. A clearly defined mandate has been identified by professional and regulatory bodies in Canada, such as the Human Resources Professionals Association ("HRPA") and the Association of Workplace Investigators ("AWI"), as a key element of conducting neutral workplace investigations. A clear mandate agreed upon by both the employer and investigator will allow the investigator to act and render findings within the scope of the investigation. While the mandate does not need to be provided to the parties, the scope of the investigation and guiding policies/legislation should be clearly communicated to the parties.
AWI and HRPA also recommend that investigators develop an investigation plan at the outset of the investigation, to be updated and adjusted as the investigation unfolds. Both the Ontario Human Rights Commission and Government of Ontario recommend developing an investigation plan and provide templates that can be used to help ensure investigations are undertaken in compliance with the Human Rights Code and Occupational Health and Safety Act, respectively. Generally, the plan should include consideration of factors such as potential parties and witnesses, what documentary evidence may exist, and what information ought to be communicated to the parties. Having a clear mandate and thoughtful investigation plan can help to serve as a checkpoint that the investigator is taking a neutral and balanced approach, and that ensures that parties and participants are properly informed of their rights and the investigative process.
- Clearly document allegations and evidence
It is particularly important to conducting a procedurally fair investigation that the employee(s) accused of wrongdoing are given the opportunity to respond to the allegations against them and provide their version of events. Canadian courts have been clear that employees being investigated for wrongdoing are owed a duty of care and will hold employers accountable for failing to meet that standard. In Geluch v. Rosedale Golf Association, Justice Himel found that the employer failed to conduct a fair investigation as they had failed to interview the respondent to obtain their version of events (para 157).
It is therefore prudent to clearly present the allegations of wrongdoing to the responding party, preferably in writing and in advance of conducting an interview. The investigator should then interview the responding party and take detailed notes of what information was provided to the responding party, the questions asked and the responding parties responses to ensure that there is a record showing that the responding party was given the opportunity to respond to each of the allegations against them. Additionally, both the responding party and the complaining party should be made aware of and given the opportunity to respond to any evidence that comes to light which could potentially lead to an adverse finding against them. Having a detailed record of the allegations and interview evidence will help to ensure a fair process for all involved.
Conclusion
While this is in no way a comprehensive list of the steps to be taken in an investigation, these essential steps can help employers ensure that their workplace investigations observe basic tenants of procedural fairness, protect the interests and rights of their employees, and help to protect against allegations that investigations were not conducted fairly.
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.
