The Importance of Conducting Fair Workplace Investigations
Previously printed in the LexisNexis Labour Notes Newsletter.
The use of workplace investigations in situations where employees are dismissed for just cause has received considerable attention from the courts in recent years, with the decision of the British Columbia Supreme Court in Vernon v. British Columbia1, in which the Court was highly critical of the manner in which the employer conducted its investigation of alleged misconduct, being among the most high profile of the latest cases. However, notwithstanding the ruling in that case and the cautionary lessons which emerged from it, there continues to be uncertainty among many employers as to how workplace investigations should be conducted.
A pair of recent decisions shed some additional light on these issues and provide valuable takeaways for employers.
In George v. Cowichan Tribes2, the plaintiff was dismissed for just cause following an incident which occurred outside the workplace. Prior to her dismissal, an outside investigator was retained to conduct an investigation into the incident. Following the completion of this investigation, the findings were submitted to the defendant, which immediately dismissed the plaintiff for cause. At trial, the B.C. Supreme Court found that there was no basis to dismiss the plaintiff for cause, and awarded the plaintiff 15 months of notice as well as a substantial award of aggravated damages.
In arriving at this determination, the Court was influenced by the manner in which the investigation was conducted and, in particular, by the fact that the plaintiff was never questioned directly on issues which would eventually help form the basis for her dismissal, was never given the opportunity to respond to the allegations against her or to the findings of the investigator, and was not provided with a copy of the investigator’s findings until after her dismissal.
Conversely, in Molloy v. EPCOR Utilities Inc.3, the plaintiff’s summary dismissal following the receipt of a complaint about her leadership style and conduct was upheld, due in part to the thorough and diligent manner in which the investigation into the complaint was conducted.
The investigation was subjected to considerable scrutiny by the Alberta Court of Queen’s Bench, which had to address whether the investigation was a legitimate one or, as alleged by the plaintiff, a “sham.” The Court did not accept the plaintiff’s position and ultimately concluded that the investigation was “genuine, fundamentally fair, and unbiased” and supported the defendant’s decision to terminate the employment relationship for cause. In arriving at this conclusion, the Court highlighted the fact that the investigation was conducted by a lawyer experienced in litigation and witnesses were interviewed, the process was discreet and conducted in an orderly and reasonable fashion, and the plaintiff was made aware of the allegations against her and given the opportunity to provide the investigator with information which she felt was relevant.
Lessons for Employers
These decisions contain several key takeaways for employers and HR professionals who are conducting, or who may be conducting, workplace investigations:
- Investigations should be impartial and unbiased: While the findings of an investigation may ultimately assist in justifying the decision to dismiss an employee for cause, it must be remembered that building a cause case should not be the sole purpose of a workplace investigation. The purpose of workplace investigations is to ascertain facts and get accurate information and, as such, they should be conducted in an impartial and unbiased manner which invites participation from all involved parties.
- Individuals should be confronted with the allegations: In order for an investigation into misconduct to be conducted properly, the subject of the investigation should be given the opportunity to understand, hear and respond to the allegations which have been levelled against him or her. Where an individual is not given this opportunity, the employer risks a finding that the investigation has not been conducted in a fair or reliable manner.
- Investigations should be conducted by experienced individuals: Workplace investigations should be undertaken by individuals who have experience dealing with such matters. While it is not necessary that the individual be an experienced workplace investigator per se, an investigation will carry greater legitimacy and have more buy-in where it is conducted by someone who has experience conducting investigations, obtaining statements and interviewing witnesses.
Workplace investigations can be an essential tool in justifying a decision to dismiss an employee for just cause. However, in order for that to be the case, they must be conducted properly and in a fair, impartial and unbiased manner. A poorly done investigation can cost significantly more than the invoice of the investigator.
1 2012 BCSC 133.
2 2015 BCSC 513.
3 2015 ABQB 356.