Staying on the Right Side: The do’s and don’ts of fair and effective disciplinary meetings and investigations

Disciplinary meetings and investigations require a careful balancing between employees’ rights to privacy and a fair process, and the need to conduct an effective inquiry into allegations. How should the investigator be selected? Does an employee have a “right to silence”? When is union representation required? Join Lancaster’s panel of experts for an audio session that will answer these and other questions, including:

• Developing a fair investigative process: What elements have arbitrators 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 alleged perpetrator? What safeguards should be put in place to protect against reprisals directed at complainants, witnesses, or accused employees? Should the investigator be internal or a third party? How should a third party investigator be selected? Should the complainant or the accused employee be removed from the workplace pending the results of the investigation? 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? What liability do employers incur if they fail to conduct an investigation or conduct it improperly?
• Understanding the role of the employee: What is the extent of an employee’s duty to cooperate with his or her 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? How will an employee’s dishonesty during the investigation process impact an arbitrator’s assessment of the appropriate discipline for that employee?
• 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?
• 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?