March 5, 2020

Employers are often called upon to conduct — and employees and unions must respond on short notice to — workplace investigations into alleged misconduct. Mistakes in these investigations can be costly, resulting in significant damage awards and/or irreparable harm to employees. This session will outline the steps employers must take to ensure fair, effective disciplinary investigations that fulfill their legal obligations, including specific legislative requirements relating to violence and harassment, and describe the union’s role in workplace misconduct investigations. Topics to be addressed include the following:

  • Must employers always conduct pre-disciplinary investigations? What liability do employers incur if they fail to conduct an investigation when one is required or if they conduct an investigation improperly?
  • What is the role of the union in the investigation? When is an employee accused of misconduct entitled to union representation? When, if ever, are other employees who are interviewed as part of an investigation entitled to union representation?
  • How should a union balance its duty to represent members accused of misconduct with its duty to represent members who may have been adversely affected by the alleged misconduct?
  • Who should conduct the investigation? When should an external investigator be retained? Do the answers to these questions change if the investigation concerns harassment or violence?
  • What are the essential elements of a workplace investigation? How are harassment and violence investigations different from investigations into other types of misconduct?
  • What are the best practices for interviewing witnesses? Can witnesses be guaranteed confidentiality? If not, what should be done to protect them against reprisal?
  • What is the extent of an employee’s duty to cooperate with an employer’s investigation? Can employees be disciplined for refusing to answer the employer’s questions during an investigation?
  • What types of electronic searches, such as cell phone record searches and e-mail searches, can be conducted as part of the investigation?
  • Prior to imposing discipline, does an employer have an obligation to investigate whether disability played a role in an employee’s misconduct?
  • How will an employee’s honesty — or lack thereof — during an investigation affect discipline and/or reinstatement? What other factors should be considered in assessing discipline? Can an employer rely solely on an investigation report as the basis for discipline?