ADVICE for Employees being investigated

If you are the subject of a complaint, it may surprise you to know that your employment could be terminated for cause as a result of the complaint. Accordingly, you have rights, and your employer has corresponding obligations.

It is crucial that you insist that your rights and the employer’s obligations be complied as soon as you are aware a complaint has been made against you.

First, you are entitled to know if the employer has a policy on how it conducts investigations. Your employer needs to follow its policy if it has one. If it doesn’t, it must conduct the investigation in a fair manner i.e. respect your rights.

Second, you are entitled to know the allegations that have been made against you. You should ask for a copy of the complaint (it should be in writing and signed by the complainant) and the name of the complainant (although many employers promise ‘anonymity’ to the complainant). If there is litigation the name of the complainant must be disclosed so this is a promise employers cannot keep. And we believe you are entitled to know the name of the complainant. At the very least you are entitled to a summary of the allegation and who prepared the summary.

Third, before you are interviewed you are also entitled to the particulars of the allegations in the complaint i.e. what policy was allegedly breached, date(s), time(s), witness(es)

Fourth, before you are interviewed you are entitled to all the evidence the employer has gathered relevant to the complaint, so you have an opportunity to defend yourself.

Fifth, ask for the mandate of the investigator. Is the mandate to determine the facts ie what happened? Or to determine credibility i.e. whose story should be believed? Or to determine guilt i.e. is the target guilty of some legal wrong such as harassment?

Sixth, ask for the identity of the investigator. You are entitled to an independent ie unbiased investigation. The investigator must have the qualifications necessary to comply with the mandate. Has the investigator received any training on conducting investigations? By whom? Is the investigator an employee of the employer? If not, has the employer used the investigator before? Is the investigator a lawyer or a retired judge? Where credibility is an issue only a retired judge is suitable.

Last, we believe you are entitled to have your lawyer present during your interview to ensure the interview deals only with the allegations in the complaint as limited by the particulars and isn’t used as an opportunity to interrogate you about other matters.

When the investigation is complete you should be given a copy of the report or at least a summary of its findings.

If you are found liable of the allegations in the complaint your employer may terminate you for cause. Termination for just cause has been called the death penalty in employment law and just cause is very hard for employers to prove. Nonetheless, many employees are unfairly terminated for just cause following an” investigation.”

Thus, if you are terminated for cause you have the option of bringing a wrongful dismissal claim against the employer and, if the investigation was incompetently done by a third party, a claim for negligence against the third party. If you have been denied your rights during the investigation, a court may set aside or ignore the results of the investigation.

In any event, if you are the subject of a complaint, you have rights. Insist on them. We can help.