Canada: Workplace Investigations: Fairness Is Key

Employers have an obligation to investigate allegations of employee misconduct. While employers are often aware of their obligations to take allegations of employee misconduct seriously, it is equally important that workplace investigations are fair to the employee whose conduct is being investigated.

Consequences of an Unfair Investigation

If the employee whose conduct is being investigated is not treated fairly throughout the investigative process, the investigation's findings, regardless of whether or not they are correct, may be deemed inadequate by a court or administrative tribunal later tasked with reviewing what has taken place. If this occurs, the court or administrative tribunal may set aside the sanctions imposed by the employer, order the investigation to be re-done, or partially re-done, at significant cost to the employer, and/or order damages be paid by the employer to compensate the investigated employee for lost wages, stress, loss of reputation or other losses stemming from the lack of procedural or substantive fairness.   

What is a Fair Investigation Process?

The Court of Queen's Bench for Saskatchewan in Oberg v. Board of Education of the South East Cornerstone School Division No. 209 of Saskatchewan, 2020 SKQB 96, recently provided a comprehensive review of common errors in workplace investigations that constitute a failure on the part of employers to act in good faith during an investigation. These errors included:

• Rushing to judgment before obtaining the facts
• Failure to be transparent or honest with the investigated employee during the investigation process
• Failing to provide particulars of allegations to an employee under investigation
• Failing to provide the employee under investigation with an adequate opportunity to explain or respond
• Failing to consider an investigated employee's response
• Failing to put potentially relevant information to witnesses
• Failing to consider other evidence, such as surveillance or computer records, which might be relevant to the investigation.

In this case, the School Board was found to have breached a principal's right to procedural fairness by failing to provide the particulars of the allegations against him. The Board was not provided a "do over" but instead the Court vacated the results of the investigation because of the failure to provide a fair process.

But why do these errors occur? There are at least two common mistakes:

• Fear of Providing the Employee Under Investigation with Too Much Information
  
  An employee whose conduct is under investigation has a right to know the 'case to meet'. However, employers are often concerned about privacy interests. Other times, they can be reluctant to share information with the employee under investigation for fear that it will "tip them off" and somehow hinder the fact-finding process.
  
  While each investigation is unique and there may be times where these concerns are warranted, generally this is not the case. Providing the employee under investigation with the particulars of the allegations and the evidence to support the allegations, including the identity of the employee making the complaint, most often assists in attaining a more complete picture of what, if anything, took place and achieving a timely resolution of the matter. The integrity of an investigation can be significantly compromised if the employee under investigation is not made aware of what was said against them.(Chapman v. Canada (Attorney General), 2019 FC 975).
  
  An employee who knows the extent of the evidence against them is in a better position to admit fault and/or provide a fulsome explanation of what occurred.
   
• Rushing to Judgment
  
  Confirmation bias and tunnel vision are concepts well understood in police investigations, but they can be present in workplace investigations as well. Investigators must not rush to judgment. The employee under investigation must not be treated as guilty until proven innocent.
  
  On receiving the statements of witnesses and/or complainants and reviewing other evidence, employers often feel confident that they know what occurred and who is at fault and are ready to pronounce judgement and conclude the matter. While it may be the case that the evidence against the investigated employee is compelling, the employee under investigation may still possess information that only they have, and this information may significantly reframe or cast doubt on the information already obtained by the employer. The employer has an obligation to obtain the investigated employee's information and explanation. An employee under investigation must be provided a meaningful right to be heard, to defend themselves, and to have any explanation appropriately considered, prior to being sanctioned. What is meaningful largely depends on the possible consequences that individual faces. With more severe consequences, the participatory rights are more onerous, including, for example, providing the employee access to their own records (Grant v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 37, at para 143).

At the outset of any investigation into allegations of workplace misconduct, an employer must be mindful of their duty of fairness to both the complainant and the employee under investigation. Missteps at the beginning are difficult to rectify later on and often come at a significant cost. Formulating an investigative plan and retaining the right person(s) to conduct and oversee the investigation are often keys to success.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.