Disciplinary Investigations: Revisiting the rules in a post-Ghomeshi era

The high-profile investigation of the CBC workplace that followed the dismissal of radio show host Jian Ghomeshi has served to highlight the critical importance of proactive, timely, and fair workplace investigations of suspected or known misconduct. This session will review the key elements of fair and effective disciplinary investigations, and discuss how to avoid common mistakes that can result in irreparable harm and significant liability.

• Complaints: When does an employer or a union have a duty to investigate a complaint? What constitutes a “complaint”? Does it have to be in writing? What if the employer/union is aware of “concerns” or “issues,” but individuals have not called it a complaint, or it has not been put in writing?
• Developing a fair process: What elements have adjudicators recently identified as essential to balanced and impartial investigations? When should an employer interview co-workers and other witnesses? What confidentiality protections should be put in place for the complainant, witnesses, and the respondent? What safeguards should be put in place to protect against reprisals directed at complainants, witnesses, or respondents? Should the investigator be internal or a third party? How should a third party investigator be selected? When should the complainant and/or the respondent be removed from the workplace until the investigation is complete? Should it always be the respondent, not the complainant, who is transferred or removed? What timelines should govern the investigation? Does an employer have an obligation to investigate whether disability played a role in an employee’s misconduct prior to imposing discipline? If an employee has been charged criminally, does the employer still need to conduct an investigation before imposing discipline?
• Understanding the role of the employee: 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? Are employees accused of misconduct entitled to know the allegations against them before they answer questions in an interview process? Is a non-unionized employee entitled to have a lawyer advise him or her at disciplinary meetings?
• Respecting the role of the union: When is union representation required at an interview? Must an employer advise an employee of the right to union representation? What are the consequences of failing to ensure the presence of a union advisor when required? What is the role of the union in the investigation? What about in an interview? Can a union representative advise the employee not to answer certain questions or advise the employee how to answer certain questions? How should a union deal with an investigation involving allegations of harassment by one member against another? When should a union conduct a parallel investigation?
• Disclosing or withholding the investigation report: What are the employer’s obligations to disclose or withhold the investigation report, witness statements, or other documents that form part of the investigation? Does privacy legislation provide any protections against disclosing information gathered during the course of an investigation?