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Workplace Investigations – Best Used in Moderation?

Workplace Investigations – Best Used in Moderation?

Mann Lawyers

Posted March 27, 2015

In creating workplace policies, employers may specify that complaints brought forth by an employee will trigger an investigation. The intention is likely to ensure fairness and due process.

Investigations can play a valuable role, especially in the human rights context , where allegations are serious, or where an employer is considering a dismissal for cause. In these contexts, it is important to show that an employer acted promptly and responsibly and not in a discriminatory or bad faith manner.

On the other hand, investigations aren’t always the most helpful tools from a practical perspective. They can be expensive, time consuming, and damaging to relationships. Additionally, if a matter progresses to an arbitration, hearing, or trial, the decision maker is likely to effectively repeat the process to determine liability. Having an investigation report can help demonstrate that you acted diligently as an employer, but a court won’t necessarily agree with the analysis.

Therefore, it may be most beneficial to have a policy that contemplates alternatives or preliminary steps before a full-fledged investigation is undertaken:

  1. Perform an assessment coincident with the intake of a complaint – Consider having a discussion with the individuals materially involved to canvas the possibility of an informal dispute resolution process – perhaps a facilitated discussion. Think about how a formal investigation will impact relationships within the workplace if it is likely that the individuals involved will be asked to continue to work together.
  2. Consider whether the complaint appears to be brought in good or bad faith – Note that any complaints found to be brought in bad faith may result in discipline. Also look at the seriousness of the allegations and consider what steps may be appropriate if they are proven true.
  3. If you have determined that an investigation is necessary, decide who will conduct it— Determine whether your company is appropriately placed to handle it or if an outside investigator is necessary. In making this determination, consider how complex the allegations are and whether there’s likely to be a perception of a conflict of interest, which may arise, for example, if an allegation is made against a member of senior management.
  4. Be clear with the parties involved respecting process and anticipated timeline —Outline at the beginning of the process what the scope of the allegations are and what your mandate is. Decide whether any employee should properly be placed on administrative leave with pay or otherwise separated from the complainant – again, a disruptive event in workplace. Also let the main parties know whether or not they will receive a copy of the investigation report. As much as possible, try to maintain confidentiality by interviewing only those individuals with material knowledge of the allegations and making clear that they should not speak of the interview.

Rigid adherence to one process may not be the best approach to handle workplace disputes. Adding room for flexibility in policies allows an employer and employee to craft a proportionate and appropriate response to concerns raised.

This blog post was written by Alayna Miller, a member of the Employment team.  She can be reached at 613-369-0374 or at alayna.miller@mannlawyers.com.

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