November 6, 2018

While our favourite television detectives can solve a crime in under an hour, they tend to ignore procedural safeguards that ensure a fair and confidential process. Conversely, workplace parties can’t afford to fumble around like Inspector Clouseau due to the significant harm that could arise from an inadequate or biased investigation. In this session, leading counsel will review best practices for ensuring a fair, thorough disciplinary investigation, addressing issues such as:

  • Conducting fair and adequate investigations: Are there any lessons that can be drawn from recent cases about an employer’s duty to investigate misconduct and the essential elements of fair and adequate investigations? What are the essential qualities or qualifications of a competent investigator? When should an external investigator be retained? When should an investigator interview co-workers and other witnesses? What safeguards should be put in place to maintain confidentiality and protect against reprisals? In what circumstances should a party be removed from the workplace until the investigation is complete? What timelines should govern the investigation?
  • 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: What is the role of the union in the investigation? When should it conduct a parallel investigation? When is union representation required at an interview? How should a union deal with an investigation involving allegations of violence or harassment by one member against another?
  • Disclosing or withholding investigation reports: What are the employer’s obligations to disclose or withhold the investigation report, witness statements, or other documents that form part of the investigation? Under what circumstances will adjudicators order that investigation reports be disclosed during litigation? Can an employer claim that an investigation report is subject to solicitor-client privilege solely on the basis that the investigation was conducted by a lawyer?
  • Ensuring an appropriate disciplinary response: If an employee has been charged criminally, does the employer still need to conduct an investigation before imposing discipline? Can an employer rely solely on a third party’s investigation report as the basis for discipline? Does it have an obligation to investigate whether disability played a role in an employee’s misconduct prior to imposing discipline? How will an employee’s dishonesty during an investigation impact discipline and/or reinstatement?