Top 5 things GCs need to know about workplace investigations

5 things to know about workplace investigations

The use of external workplace investigators to investigate harassment and discrimination complaints is on the rise. This is because workplace investigators can deliver a process that is neutral, effective, and hopefully, legally defensible.

The job of finding, retaining, and supervising the investigator typically falls to the general counsel or director of legal services. However, as general counsel, how do you know whom to retain and what are the best ways to manage this professional relationship?

Here are the top 5 things to know about workplace investigations:

1. Check the credentials of workplace investigators
2. Set your mandate, and be precise about it
3. Decide whether the workplace investigation is privileged or not
4. Plan the budget and timeline of the workplace investigation
5. Insist on clear and timely communication about the workplace investigation

As a preliminary discussion on doing a workplace investigation, watch this video:

Looking for the best Canadian lawyers to help you with an investigation in your workplace? Check out our Special Report on the Top Labour and Employment Law Firms in Canada.

1. Check the credentials of prospective investigators

Obtain and check references before retaining an investigator. Feel free to ask to review a report that has been sanitized of all confidential and client identifying information. Ideally meet with the person you are considering before passing on the work, or at the very least, have a lengthy phone conversation. Everybody and their uncle are calling themselves workplace investigators these days and offering up their services as experts in the field.

In fact, a quick Google search will result in a lengthy list of possible candidates. Keep in mind that this is an unregulated area. Anyone can call themselves a workplace investigator, so the buyer must really beware.

In looking for someone who has depth of experience and excellent judgment, here are some questions to ask prospective investigators:

• how many investigations they have done in the last two years
• which workplaces they are familiar with
• what's the subject matter of the investigations they’ve conducted

2. Set your mandate, and be precise about it

Be precise about your mandate. A good investigator will ask you at the time of the retainer what the mandate is. Here, you have a choice. The investigator can consider whether the complainant’s allegations are, as a matter of fact, true, and stop there.

The investigator can also consider whether any findings violate your policy or legislation, such as a human rights code. In most investigations, investigators are not asked to make recommendations, as that is ultimately the job of counsel.

If you do not wish there to be any recommendations, make that clear at the time the investigator is retained. Below are some downsides when an investigator’s mandate has not been clear from the start:

• As investigators have spent many hours interviewing witnesses and considering your policy, they may have a strong opinion on what should happen and how to fix the problem
• The investigator’s view may be different than your client’s, and once made, these recommendations become part of the record. If you don’t implement them, and the matter investigated becomes litigious, these unfulfilled recommendations can be used against you

3. Decide whether the workplace investigation is privileged or not

Give some thought to whether you wish the investigation process, report, and surrounding communication to be privileged. If you do, it is much easier to attempt to set this up at the beginning of the retainer than mid-way through. We say “attempt” because the law with respect to privilege of workplace investigation material is not settled.

There is a possibility that no matter how thoughtful you are in terms of the setup at the beginning, no privilege exists if the matter becomes litigious. You should ensure that if disclosed, all communication between you and the investigator, including the report, will not embarrass you, and will show that the process was unbiased, fair, and thorough.

4. Plan the budget and timeline of the workplace investigation

Most investigations have surprises that affect how long it will take and how much it will cost. For example:

• a key witness may suddenly take ill and delay the process for a few weeks, or
• a complicated issue is raised by the respondent that takes some time to sort out

Get some sense from the investigator at the outset about how long they think the project will take. Be prepared to be flexible and reasonable.

Similarly, ask about the overall cost of the project. But again, as there are likely to be unplanned events, be flexible in this regard as well.

5. Insist on clear and timely communication

Insist on clear and timely communication about the process as it unfolds. Here are some questions to ask a workplace investigator:

• how many witnesses are to be interviewed?
• when is the respondent available?
• how long will it take to finalize a report?
• how much time has been spent on the case to date?

These are all appropriate questions and do not have an impact on the investigator’s impartiality and neutrality.

Compare this with questions that should be avoided mid-process, such as:

• how did the complainant’s evidence appear?
• was the respondent credible?
• did a witness corroborate an allegation?

FAQs about workplace investigations

General counsel may use this part to educate their clients on workplace investigations, what Canadian laws say about them, and matters related to investigators.

Investigators can also use this part to improve their work or in their dealings with employers before, during, and after an investigation.

What is a workplace investigation?

A workplace investigation is a formal and legal process conducted by an employer through an investigator. It aims to:

• gather information and evidence from the employees involved regarding an incident in the workplace, or violation of a certain law
• look into the validity and credibility of the complaints and concerns from employees that they have raised with their employee
• determine if the employer has taken the necessary steps, as prescribed by law, to prevent or address the incident, violation, or complaint

Workplace investigations must be a fair and impartial process, conducted by a neutral third party (the investigator). In the end, the investigator’s report is the basis of all the parties affected, including the government regulatory body, on how to resolve the matter moving forward.

What laws govern workplace investigations in Canada?

Workplace investigations are established, required, and imposed by Canadian laws on:

• labour and employment: Canada Labour Code for federal workplaces, and the provincial or territorial labour laws (e.g., Employment Standards Act in Ontario)
• occupational health and safety: still the under the Canada Labour Code, plus its Canada Occupational Health and Safety Regulations (OHS Regulations), and provincial or territorial laws (e.g., found in the Workers Compensation Act in BC)
• human rights laws: Canadian Human Rights Act (CHRA), and the provincial or territorial Human Rights Code or Act (Charter of Rights and Freedoms in Québec)

Since these three areas of law cannot be separate from each other, especially in the context of employees’ rights, these laws may overlap in some cases.

How does a workplace investigation work?

Generally, the steps during workplace investigations are:

Throughout the investigation, the parties are assured of its confidentiality. This ensures that everyone is free to express themselves and protect them during and after the investigation.

After the process ends, there is still work to be done. Find out what employers should do when the investigation is over.

What are the grounds for conducting workplace investigations?

Since each workplace may be governed by different federal, provincial, or territorial laws, employers are encouraged to know these laws. Here are some of the common grounds of complaints where workplace investigations should be conducted:

• microaggressions and harassment, whether physical, emotional, or sexual
• discrimination based on prohibited grounds under the human rights laws
• concerns on occupational health and safety in the workplace
• violence among employees, or between a subordinate and a manager
• violations of company policies
• other civil and criminal offenses

Whenever there’s confusion on these workplace investigations, it’s also advisable to coordinate closely with the government regulatory body.

#CHRRTV: Employment Lawyers Krista Siedlak and Emily Sheppard from Turnpenney Milne address the most common missteps employers make when investigating workplace issues and how to avoid or remedy them.

Tune in: https://t.co/3OQpPaX0F7#employmentlaw #workplaceinvestigations

— Canadian HR Reporter (@HRReporter) May 29, 2024

Find more resources on workplace investigations and everything else related to Canadian labour laws on our Labour and Employment page.

What are some common mistakes during a workplace investigation?

Employers are liable for the conduct of workplace investigations. Not only for finding a neutral investigator, but also for the investigation’s proper conduct. For these reasons, company lawyers are proactive in facilitating workplace investigations.

To help counsel and employers in being faithful to what the law requires, here are some common mistakes to avoid during workplace investigations:

Conducting flawed workplace investigations

There are instances when the workplace investigation will be tainted with bad faith, irregularities, or reasonable suspicions. These may be caused by flaws or even negligence by the employer and/or the investigator during its conduct. The consequences for employers who have been judged to conduct a flawed investigation are costly.

Here are some cases when workplace investigations can become flawed:

• choosing an impartial or biased investigator, or an investigator who has a conflict of interest with any of the parties to the case
• failing to hear both sides of the conflict (e.g., the complainant and the accused employee or officer)
• compromising the confidentiality of the process (e.g., sharing with another witness what the other had confided to the investigator)
• allowing the use of fabricated, irrelevant, or hearsay evidence, which should have been filtered by the investigator
• having insufficient evidence to support the results of the investigation, which can also be a result of inadequate collection of evidence
• disposing a part of or all records of the investigation, during or immediately after

Of course, this is aside from the employer’s inaction or delay in investigating the complaint when it was raised by the employee. As such, employers — along with their counsel — should strive to evade these common pitfalls.

Employer’s retaliation against the complaining employees

Naturally, there will be conflicts among employees because of the incident being investigated. There’s also a chance that the employer becomes hostile during the investigation. As this is one of the common mistakes made during workplace investigations, employers should know that retaliating against complaining employees is illegal.

Counsel must be very clear on this, and strongly advise clients against these. For instance, under Manitoba’s Workplace Safety and Health Regulation, it’s illegal for employers (and even the union) to carry out reprisals against employees who raise:

• a safety and health concern
• a complaint of harassment

Aside from penalizing the employee, or retaliating against the employee through other forms, failure to pay the employee their wages or benefits is also considered a reprisal. If it’s determined that there has been reprisal against an employee, it may be ordered that:

• the employee be reinstated on their former position before the reprisal, on the previous terms and conditions
• the employee be paid their wages and lost benefits that they would have earned if they were not subjected to the reprisal
• the employer removes from the employee’s record any reprimand or reference related to the reprisal

Any tips to share on leading and organizing workplace investigations? Let us know in the comments.