Conducting Health and Safety Investigations

Where there is an accident or an allegation of harm by one employee against another, the employer must take action. However, it may not be immediately clear what type of investigation is necessary. Has there been a violation of the Occupational Health and Safety Act? The Human Rights Code? Health and safety provisions in the collective agreement? Different types of investigations may require different responses in regard to interviews, union involvement and expert assistance. Join us as Lancaster’s experienced workshop leaders discuss the challenges of conducting a fair and thorough investigation. Topics to be addressed include:

• Assessing the type of investigation needed: After an incident has occurred, what steps should employers and unions take to determine what type of investigation is appropriate, such as a harassment, violence, human rights violation or occupational health and safety investigation? What steps should be taken where an investigation involves more than one of these issues? What legislation governs the necessary elements of each type of investigation? What liability may an employer or union face if they fail to conduct an investigation or conduct it improperly?
• Procedural protections: What protections should be put into place to ensure the fair treatment of employees being investigated, victims and co-workers? What steps should employers take to maintain the confidentiality of employees subject to investigation? How should the employer and union protect against reprisals? When will an investigation require an external investigator or subject-matter expert to provide assistance? Should employees be removed from the workplace pending the results of the investigation? What timelines should govern an investigation? When is union representation required?
• Privacy concerns: Can an investigator gain access to an employee’s cell phone records, web history or email account as a part of an investigation? Can an investigator look into an employee’s off-duty use of social media? When can an investigator use video surveillance as part of an investigation?
• Investigation reports: Who is entitled to access the final report, as well as investigation statements or other documents which form part of the investigation record? Are investigation reports protected by any type of privilege? What use can be made of investigation reports in subsequent arbitration or tribunal proceedings?

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