The basics of workplace investigations

Sarah Crossley, partner at Filion Wakely Thorup Angeletti, on impartiality in investigations

The basics of workplace investigations

In recent years, there have been several high-profile examples of allegations of discrimination, harassment or bullying in Canadian workplaces which have come to the public’s attention as a result of the media reporting.

Both private and public sector employers have faced intense scrutiny as a result of their failure to take meaningful action in learning of the alleged misconduct in the workplace.

It is important for Canadian employers to take these types of allegations seriously. Speaking to HRD, Sarah Crossley, a partner at Filion Wakely Thorup Angeletti LLP, says that a workplace investigation is generally required “when an employee alleges workplace harassment; bullying; and/or discrimination or harassment based on a personal characteristic that would constitute a violation of human rights legislation.”

Just cause and investigations

Crossley also explained that that there may be circumstances in which an employer, wishes to conduct a workplace investigation or review even if not required at law. For example, Crossley added “an employer is well advised to conduct an investigation prior to terminating an employee for “just cause” and/or if the employer learns of circumstances which may pose a legal or reputational risk to the organization.”

Above all, Crossley reminds employers and HR leaders to conduct a full and fair investigation.

“An employee who has engaged in harassment and/or discrimination should be provided with a sufficient amount of information in order to meaningfully respond,” Crossley told HRD.

Documenting interviews

There is not hard and fast rule as to how to document the interviews in workplace investigation. Crossley explained that some investigators prefer to record their interviews while others prefer to take notes or signed statements.

“At the end of the day, an investigator wants to use a methodology that enables them to obtain the information they require to conduct a full and fair investigation,” she said.

“Recording ensures there’s no dispute about what was said, but it can have a chilling effect, particularly in cases involving serious allegations like sexual harassment or assault. Individuals may not feel as comfortable recounting their experiences while being recorded. [But] whatever mechanism you decide to use as an investigator, it should – in most circumstances -be consistent for the duration of the investigation.”

External investigators

If an HR leader is concerned about any real or perceived impartiality, reputational risks or potential legal proceedings, they may wish to consider retaining an external investigator.

“Sometimes there are situations where the allegations are so serious or involves such senior individuals in an organization, that a decision is made to go the external route,” added Crossley. “Given when these situations occur they can be time sensitive, employers may wish to have identified a few external investigators who are knowledgeable and have a good reputation in the industry.”

And it’s advice that a lot of HR leaders take to heart. In a recent interview with Shaun Parker, partner at Osler, Hoskin & Harcourt, he said that practitioners are cautioning against assuming that internal abilities and skills will be enough here.

"Just because you're capable of doing an investigation doesn't mean that you should do it.”

It’s becoming more important for organizations to have workplace investigators who are knowledgeable in not only the subject matter they are investigating but also understand the requirements of procedural fairness, added Crossley.

Read more: Top 5 things GCs need to know about workplace investigations