Conducting Fair and Effective Workplace Investigations

Employers, employees, and unions each have an important role to play in the investigative process to ensure that it is thorough, balanced, and effective. What procedural protections should be put into place to protect complainants, respondents, and co-workers? When should an external investigator be retained? How extensive should the evidence-gathering process be? Who is entitled to receive a copy of the investigation report? Join Lancaster's experts for a comprehensive workshop that will provide step-by-step guidance on key issues in the investigative process. Topics to be addressed include:

• Conducting a fair and effective investigation: What are the essential elements of a workplace investigation? Who should conduct the investigation? When should an external investigator or subject-matter expert be retained? How can employers and unions minimize issues of bias and pre-judgment in the investigative process? What confidentiality provisions should be put in place to protect the complainant and the employee subject to investigation? When is it appropriate to remove an employee from the workplace pending an investigation? Should such suspensions or removals be with pay, or without? Can an employee be disciplined for refusing to answer the employer's questions during an investigation? What timelines should govern an investigation? What liability may an employer or union face if they fail to conduct an investigation or conduct it improperly?
• Choosing the right framework: What legal frameworks should employers and unions look to when conducting investigations into allegations of harassment, violence, or psychological harm? Health and safety law? Human rights law? How does the new National Standard of Canada for Psychological Health and Safety in the Workplace apply in the context of such cases? What protections in collective agreements may be relevant in such cases?
• Involving the union: What role should a union take in an investigation? Does this differ depending on the type of investigation – i.e., health and safety violation, accident, incident of harassment or violence? Is the union's role limited to representation, or does it have a joint role/responsibility in ensuring the investigation is properly carried out? Should the union conduct a parallel investigation? Is union involvement and/or representation necessary whenever an employee is involved in an investigation, as opposed to a disciplinary proceeding? Can a union representative advise an employee not to answer certain questions or advise the employee how to answer certain questions? What are the consequences of failing to ensure or allow the presence of a union advisor?
• Gathering evidence: What types of electronic surveillance and searches can an employer conduct as part of the investigation? Can investigators gain access to an employee's cell phone logs, web-surfing history, or email account? Can they investigate an employee's off-duty conduct on their social media accounts? Can employers use video surveillance as part of their investigations? If so, under what circumstances can surveillance be conducted? How should the credibility of documentary or in-person evidence be assessed? What safeguards should be put into place to ensure that evidence and witness statements are reliable? When should an investigation be discontinued for lack of evidence?
• Disclosing and relying on the investigative report: Who is entitled to the investigation report, investigator's notes and other documents relied upon in the investigation? Which portions of the investigation report should be disclosed and which should be withheld based on privilege? Can an employer rely on a third-party investigation report as the basis for imposing discipline?
• Investigating sexual harassment: What unique considerations should workplace parties bear in mind when conducting investigations in relation to sexual harassment or assault allegations? Should employees be encouraged to report allegations to police? If there is a parallel criminal investigation, how should this factor into the workplace investigation?
• Investigating drug or alcohol-related incidents: When is an employer entitled to ask that an employee submit to a drug or alcohol test in the course of investigating an accident or incident? Is an accident or "near miss" a sufficient reason to make a request, or must there also be some reason to believe that drugs or alcohol were a factor?

MATERIALS
Includes materials, with case summaries and analyses, prepared by Lancaster's legal staff.