While employers are not held to a perfect standard when conducting a workplace investigation, investigations must be conducted with procedural fairness and good faith. Common errors made by employers conducting workplace investigations that have been identified by Canadian courts include:
- Failing to act impartially;
- Rushing to judgment before obtaining the facts;
- Failing to be transparent or honest with the accused employee during the investigation process;
- Failing to provide particulars of allegations to an accused employee;
- Failing to provide the accused employee with an adequate opportunity to explain or respond;
- Failing to consider an employee’s responses;
- Failing to interview witnesses with potentially relevant information;
- Failing to consider other evidence, such as emails, text messages, surveillance or computer records, which might be relevant to the investigation; and
- Failing to follow the employer’s own policies regarding the conduct of workplace investigations.
A poor investigation can create legal risks for the employer. If an employer terminates an employee for misconduct but fails to properly investigate the misconduct, this may jeopardize the employer’s ability to defend a wrongful dismissal claim. A poor investigation can also expose an employer to liability for punitive or aggravated damages for breaching the employer’s obligation to treat the employee fairly in the manner of dismissal.
For example, in Doyle v Zochem Inc., 2017 ONCA 130, the employee sued their former employer for wrongful dismissal after being terminated following a complaint that they were being sexually harassed by a co-worker. The court found that the employee had been sexually harassed and that the employer had done a “cursory” investigation, hearing only from the respondent and failing to give the employee an opportunity to respond prior to their dismissal. The court awarded the employee CA$60,000 in moral damages, which was upheld on appeal.
In Elgert v Home Hardware Stores Ltd., 2011 ABCA 112, an employee sued their former employer for wrongful dismissal after being terminated for cause following an investigation into a complaint that they had sexually harassed a co-worker. The court found that the investigator selected had no training in dealing with sexual harassment complaints and had never conducted a sexual harassment investigation. The court also found that the investigator lacked neutrality (they were friends with the complainant’s father), the employee was not provided with particulars of the allegations prior to the interview or an adequate opportunity to respond, no efforts were made to investigate witnesses with potentially relevant information, and the investigator failed to follow the employer’s policies on workplace investigations. The employee was initially awarded CA$200,000 in punitive damages by a jury, which was reduced to CA$75,000 on appeal.
Alternatively, in Morgan v University of Waterloo, 2013 HRTO 1644, no damages were awarded against the employer as it was found that the employer had taken the employee’s allegations of sexual harassment seriously. In reaching this conclusion, the Ontario Human Rights Tribunal noted that the employer had conducted an investigation in accordance with its policy, the employer had minimized contact between the complainant and respondent during the investigation, and the investigator had met with numerous witnesses and prepared a substantive investigation report. As a result, despite the tribunal disagreeing with the investigator’s conclusion and finding that the complainant had been sexually harassed, the respondent was solely responsible for damages owed to the complainant.
Take away
Employers should ensure that investigations are conducted by someone with the knowledge and training on how to conduct an appropriate investigation in the circumstances. Dentons can assist you from the planning stage through to conducting the investigation and writing an investigation report. We also provide practical training for management and human resource professionals on how to conduct fair and effective investigations.
If you have any questions about conducting a workplace investigation or workplace investigation training resources, or any other employment and labour questions, please reach out to Alison Walsh and Jenny Wang.
