Investigating Misconduct: An update on error-free approaches

Employers are often called upon to conduct, and employees and unions to respond on short notice to, workplace investigations dealing with issues such as harassment, theft, or other misconduct. Be prepared in advance. A panel of experts will review the legal boundaries within which misconduct investigations must be conducted and the rights and obligations of all workplace parties involved in such investigations. Questions to be addressed include:

• Elements of an Effective Investigation: What are the key elements of an effective investigation? What questions can and should be asked when conducting interviews with employees and witnesses? Can an employee refuse to answer these questions? Is an employer required to respond to questions about the misconduct of co-workers? What types of evidence (cell phone searches, electronic searches, internet search history, personal searches, etc.) can employers seek from witnesses and employees?
• Disciplinary Meetings: What are an employee’s rights when summoned to an investigative or disciplinary meeting? Are union representatives entitled to be present? What are the union’s obligations in representing an employee? Does the employer have an obligation to reveal findings of the investigation to the employee or the union?
• Witness Protections: Should procedural protections (confidentiality, non-reprisal, etc.) be put in place for the employee subject to investigation, as well as for complainants and witnesses? Are complaints and witness statements privileged so that they cannot be used as evidence against the person making them? Who is entitled to access these statements? How should an employer manage the investigation when other employees make similar allegations against the accused employee?
• Monitoring and Surveillance: Can video surveillance which is intended to ensure worksite security or safety be used as evidence to support discipline? When is it considered reasonable to conduct surveillance inside or outside the workplace? When is surveillance evidence admissible at arbitration and when is it not?
• Procedural Protections and Disclosure: What procedural protections (as to confidentiality, non-reprisal, etc.) should be put in place for the employee subject to investigation? Are complaints and witness statements privileged so that they cannot be used as evidence against the authors? Who is entitled to a copy of 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 under privacy legislation or based on privilege?
• Employee Obligations and Union Representation: Do employees have a duty to cooperate with an employer’s investigation? Are they required to answer questions? Can they be disciplined for refusing to do so? Are they required to respond to queries about another employee’s misconduct? When is union representation required at an interview? What are the consequences of a failure to allow/ensure the presence of a union adviser? To what extent should a union representative be permitted to participate? Take notes? Ask questions?