“Investigation is the New Arbitration”: Thoughts on Our Changing Workplaces

July 2018

Article by: Gavin Marshall

Previously printed in the LexisNexis Labour Notes Newsletter.

Every seasoned human resources professional is aware that “investigation is the new arbitration”. When addressing issues of all but the most serious and blatant misconduct, employers are now routinely counselled that if they shoot first and ask questions later, they do so at their peril.

In 2017, we witnessed relentless waves of well-publicized scandals, amplified by social media and the #MeToo movement. Some media coverage may have contributed to a popular misconception that investigating misconduct, and sexual impropriety in the workplace in particular, is a new thing.  But glimmers of a new emphasis on due process in the workplace could be seen in Canadian law as long as 15 years ago.  In McKinley v. BC Tel, [2001] 2 S.C.R. 161, the Supreme Court of Canada began a conversation in the law of the workplace about fairness and proportionality.  The Court recommended that employers develop a nuanced understanding of the facts prior to taking serious steps to end employment.  Cases since then have reinforced the need to find the facts, weigh evidence including credibility, and turn over the stones before sending an employee to the gallows.  That momentum has only grown as a new demographic cohort has entered the workforce, with demands for transparency and equality in their work conditions, and the market power to make change by voting with their feet.

That trickle of due process has become a flood. Since the #MeToo movement began to shine a light on the darker corners of life for some women in the workplace, workplace misconduct and sexual harassment policies have become dog-eared and well-worn from heavy use.  There is a significant uptick in the volume of workplace investigations, relating to all kinds of misconduct.  At one point this year, the writer was advising on the day-to-day and hour-to-hour steps in four separate investigations for four separate employers.

Here are a few observations:

  • There is a tendency for human resources professionals (especially less seasoned ones) to feel that because a policy exists which presumes an investigation is triggered by a “complaint”, they are hamstrung to manage a situation unless a complaint lands on their desk, or is slipped under the door of the HR department. This is not accurate. An employer always has the right and the duty to manage its workplace, monitor relationships between employees to an extent, and take the temperature of the workforce with a view to being proactive. Employers need not wait for a complaint to arise in order to solve a problem. In fact, to do so is to take a backseat in your own business.
  • Having said this, employers should be aware that respectful workplace, bullying and harassment and sexual harassment policies are their first line of defence and their best insurance against civil legal processes, and the reputational risks associated with adverse publicity relating to these hot-button issues. However, like any insurance policy, this comes with the cost of continual vigilance and improvement. It is not enough to tick the box, produce the policy and let it gather dust. Employers have to train their people and make sure that the channels to seek redress are transparent, welcoming and fully available to everyone in the workplace. The prize for consistency is that in a crisis (and one will come), the process will be resilient because the people are more likely to trust it to do good. The hazard of just “ticking the box”, and only dusting off the policy when a crisis hits, is that complainants will prefer to air their complaints in the court of public opinion. There, justice is push-button swift, and the first to the registry, usually wins. Just ask Patrick Brown, former leadership hopeful, and erstwhile Premier-in-waiting in Ontario.
  • In the Brave New World of Trial-by-Facebook, employer’s counsel do well to curb knee-jerk enthusiasm for the forceful cease-and-desist letter and similar legal weapons intended to silence complainants, legitimate and shady. It is not that tools have been removed from the toolbox. However, the accusation that an employer, or any large institution, attempted to silence a voice can resonate as poorly for business reputation as the substantive allegations behind them. Run this thought experiment: “How would this communication be received by the public, coming from my client, considering the context, if it was excerpted on someone’s Instagram?” Similarly, recent media debate about the morality of confidentiality agreements, both in Canada and the United States, suggest that cultural norms are changing about those kinds of deals. Entering into those sorts of arrangements in the context of workplace disputes where the outcome is not definitive has previously been fairly mundane. It behooves counsel for employers to at least think about Plan B if the arrangement does not hold, and possibly draft for it.

Workplaces in Canada are currently the site of a collision between generational change, changing norms and the new tools of communication. And, as in all eras, workplaces remain an echo chamber of the pressures of modern life.  Through all this, we should not lose sight of the fact that, generally, our workplaces have gradually become fairer, more transparent and more civil over the last 20 years.  In the current environment of employee scarcity, doing things right, and having living workplace processes, has never been more clearly a competitive market advantage, and in the best interest of employers.