Advice for employers conducting investigations

Workplace complaints are becoming increasingly frequent. Employers feel compelled to conduct investigations into these complaints to determine whether the alleged misconduct occurred and whether termination of the target of the complaint for just cause is warranted. If the offending employee is terminated for cause often litigation ensues – which the employer wants to avoid or win

These investigations also consume valuable corporate time and money and therefore must be conducted with the following objectives in mind:

  1. To avoid the expense and risk of wrongful dismissal litigation;
  2. To only do an investigation when needed;
  3. To do a fair and competent investigation so that the subject has no basis on which to claim the investigation and report are invalid and the termination unjustified;

Here is what we suggest is a “best practices” policy for employers:

  1. There should be a policy on how investigations are to be conducted, in writing and available to all employees.
  2. (Optional) Complaints will not be anonymous. The name of the complainant will be disclosed to the subject. This will help discourage false, frivolous or malicious complaints. Plus, if there is litigation, the complainant’s name will have to be disclosed so keeping the name of the complainant confidential is impossible.
  3. There will be a strict prohibition against retaliation against the complainant.
  4. The subject should be suspended (with pay) pending the outcome of the investigation (assuming the target’s employment agreement permit it).
  5. All complaints should be in writing, prepared and signed by the complainant.
  6. Every complaint must contain full particulars of the complaint (what?/ where?/when? – date and time/ names of witnesses/ corroborating evidence)
  7. If full particulars of the complaint are not provided by the complainant it will not be investigated.
  8. Consider if the report is being prepared to allow the employer to obtain legal advice and, if so, it will be privileged which privilege may be waived by the employer if a wrongful dismissal claim is brought.
  9. Before a formal investigation is commenced the employer will do a preliminary fact finding to determine if it merits a full investigation.
  10. If complaint is frivolous it will NOT be investigated.
  11. Only complaints which, if true, would be grounds for termination for cause will be investigated.
  12. If a complaint, after a preliminary fact finding, would not justify a termination for just cause then the complaint will either be mediated or the target will receive discipline, training or accommodation – but not termination for cause
  13. If the complaint is false or made in bad faith the complaint will be dismissed and the complainant will be subject to discipline
  14. The potential mandates of the investigator will be set out (investigate facts, determine credibility, or determine the liability of the target).
  15. The investigator selected will depend on the mandate. The investigator must be an independent and unbiased, preferably a someone the employer has never used before.
  16. The investigation will be done is strict confidence with all participants advised to keep all information relating to the investigation confidential.
  17. Provide the subject with the complaint and full particulars.
  18. Provide the subject a summary of the evidence it has obtained during its investigation prior to interviewing the subject.
  19. (If requested) The subject will be allowed to have a lawyer present during the interview (but the lawyer is not be allowed to interfere with the interview of the target).
  20. The interviews will be recorded and a transcript of all interviews will be prepared.
  21. (optional) The transcript of the subject’s interview will be provided to the target (Zoom and Teams provide transcripts automatically) with the caveat that if there are any changes to answers given there may be a further interview.
  22. The investigation will be completed and a report provided in reasonable period of time (suggest 3 months maximum – otherwise risk a constructive dismissal)
  23. The report will set out the facts and the conclusion of the investigator based on the mandate.
  24. The report should contain a section for mitigating factors (e.g. was there an apology?)
  25. The report should contain a section on recommendations (e.g. what could have been done to avoid this situation occurring again)
  26. (optional) Give the subject a copy of the draft report with an opportunity to point out any errors.
  27. The subject will be given either summary of the report or the complete report.
  28. The employer should consult experienced employment law counsel to determine whether the report supports a finding of just cause, and if, so will terminate the subejct.
  29. If the report does not justify termination for cause the subject will return to work.
  30. If the report concludes the complaint was fabricated or exaggerated the complainant may be subject to discipline.