Disciplinary Investigations: What questions can employers ask? What questions should employees answer?

Workplace investigations often deal with issues of serious misconduct, such as theft, harassment or dishonesty. Employers, employees and unions should understand the proper scope of these investigations. What questions can be asked of employees and witnesses? Does an employee have a “right to silence”? Must a union representative be present? Does the employer have an obligation to inquire into an employee disability which may have contributed to the misconduct? This session on disciplinary investigations will address these questions and others, including:

• Employer Obligations: What steps should an employer take to ensure a fair investigation? Does an employee have a right to disclosure of information about the disciplinary investigation in advance of an interview? When should an employer interview co-workers and other witnesses? What information can employers share with witnesses? What questions should be asked when conducting interviews with employees and witnesses? What protections regarding confidentiality should the employer provide to witnesses, the complainant and the alleged perpetrator? What steps should an employer take to protect complainants from reprisal?
• Employee Obligations: What is the extent of an employee’s duty to cooperate with his or her employer’s investigation? Can an employee who is suspected of misconduct refuse to answer questions? Do employees have a duty to tell their employer that they witnessed another employee engaging in misconduct? How will an employee’s dishonesty during the investigation process impact an arbitrator’s assessment of the appropriate discipline for that employee?
• Representation: Does an employee’s right to have a representative present at a meeting depend on whether the meeting is investigatory or disciplinary? Is a non-unionized employee entitled to have a lawyer advise him or her at disciplinary meetings? Is it a good idea? Are unionized employees entitled to have lawyers independent from the union advise them? Are unionized employees entitled to union representation at investigatory interviews? Must an employer advise an employee of the right to union representation? Is an employee entitled to choose a particular union representative? What role can a union representative play in an interview? Is the representative merely a witness or can he or she actively take part? Can a union representative advise the employee not to answer certain questions or advise the employee how to answer certain questions? What are the consequences of a failure to allow/ensure the presence of a union adviser?
• Criminal Charges: If an employee has been charged criminally, does the employer still need to conduct an investigation before imposing discipline? What rules govern an employer’s access to police and court documents relating to criminal charges?
• Investigating the Possibility of Disability: Does an employer have an obligation to investigate whether disability played a role in an employee’s misconduct prior to imposing discipline? When does an employee have an obligation to bring his or her disability to light?
• The Investigation Report: Who is entitled to a copy of the investigation report? Which portions of the investigation report should be disclosed and which should be withheld?