What you need to know before launching a workplace investigation and some better options

·5 min read
no0722levitt
no0722levitt

I have often remonstrated in these pages against the workplace investigation industry. It is a boondoggle enriching its members for little (and simple) work while charging credulous employers large amounts for providing little (or no) value.

In dismissing an employee, there is no legal obligation to conduct any investigation, contrary to that industry’s preachings and the courts have made it clear that if an employer has just cause to fire an employee, it does not matter one whit whether it conducted any investigation before coming to its decision.

The workplace investigation industry has a practice of conducting multi-day investigations that drag out over weeks or more, thereby destroying morale and rendering untenable the continued employment of the person being investigated, even when they are entirely innocent. As the investigation proceeds over those weeks, dysfunction reigns in that workplace, and the person investigated is deprived of any real protection.

Is there any reason to do a workplace investigation? Generally, yes, but not for the reasons often espoused. The real reasons to conduct the type of investigation I recommend are:

  1. The employee accused is quickly pinned down to a version of events before inventing a better one after lawyering up.

  2. If the person accused is innocent, you will find that out before making the wrong decision, creating liability and potentially embarrassing yourself as an organization.

  3. To find flaws in your system in determining what went wrong (if anything).

  4. To treat the accused fairly and demonstrate that to the court if the matter were to reach trial.

The investigation I recommend is not the elaborate multi-day affair that has become de rigueur. Instead, here is what should be done:

Who should you use?

Do not use an outside investigator, particularly a lawyer, in the vast majority of cases. Instead, use someone internal, likely an HR rep, and train them to investigate. Workplace investigations are not complicated and there is very little relevant law.

Your internal HR rep already knows your personnel, company policies and corporate culture, and can more quickly get to the bottom of what occurred. They need not be taught the context and policies in that workplace as an outsider does. Using such a person is also much less expensive than paying the close-to-$100,000 fees (sometimes dramatically more) I commonly see in workplace investigations.

Do you always use an internal investigator? No. If the person being investigated is, for example, the chief executive or perhaps another C-Suite executive, you want an investigator with ostensible independence. But most outside investigators are seen as simply hired guns who want to provide their clients the outcome they wish in order to obtain future assignments and referrals. Just like an internal employee, they lack ostensible independence.

What I recommend, on those few occasions when you require an outside investigator, is to use a retired judge. A retired judge will have the respect of all the stakeholders: the accused, those interviewed, your board and even the court if the matter proceeds to a trial.

Why not use an outside lawyer rather than a retired judge? The skills of lawyering are not those of investigating. One does not cross-examine, let alone adversarially, in an investigation. An investigator does precisely what a judge does during their entire career: objectively listen to all the evidence, determine relative credibility and apply the facts to the infractions and policies of that workplace.

Many mediation centres have retired judges or, I will gladly provide them if you wish the name of some.

Another critical reason not to use an outside lawyer is that it entitles the employee being interviewed to obtain their own lawyer before participating.

If, on the other hand, you use an internal employee, the accused is required to answer all questions asked without their own lawyer present. Indeed, refusing to answer those questions, or lying in their responses, is usually cause for discharge. I have found that cause for discharge is sometimes found not because of the conduct being investigated, but because the employee refused to respond to questions or, worse, lies in their answers.

What should the process be?

You wish to cause as little workplace disruption as possible. All that you are required to do is speak to the person making the complaint, the relevant witnesses who that person names and then put the allegations to the accused, obtain their responses and then speak to any witnesses whom that interview makes relevant.

This can be accomplished over two days 95 per cent of the time. Such an investigation satisfies any legal requirements, satisfies the court that the person was treated fairly, avoids workplace disruption and avoids the person accused being humiliated.

Should the person accused be suspended pending the outcome? Not unless there is a serious risk that the employee’s presence will prevent others from providing evidence. Suspension is not a neutral act and suspended non-union employees virtually never return to the workplace.

Instead, if cleared of wrongdoing, the suspension often provides them legal ammunition of humiliation and bad faith behaviour. The result is that they sue for constructive dismissal plus damages for their treatment.

Does a good investigation assist the employer in court? Not in the slightest. If the investigator finds that there is no cause for discharge, but the employer wants to terminate the employee anyway, it must still pay wrongful dismissal damages and the investigation cost will turn out to have been an entire waste of money.

Depending upon how the investigation was handled — that is, if my proscription above is not adhered to — the person accused and then fired might be able to sue for punitive damages or damages for mental distress as well.

But if the investigator finds that there is cause for discharge, the employer is still no better off in court. The judge at trial will not care what the investigator found since the investigator’s findings are purely hearsay.

As simple and inexpensive as this process should be, why do so many employers hire outside lawyers to conduct formal extended investigations? The workplace investigation lobby has managed its marketing very well and too many employers have drunk their Kool-Aid and found it a powerful intoxicant.

Got a question about employment law? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.