Investigations for Employers

The objectives:

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

Here is what we suggest is a “best practices” policy on investigations or in the absence of a policy what an employer should do:

There should be a policy on how investigations are to be conducted, in writing and available to all employees
(Optional) Complaints will not be anonymous. The name of complaints will be disclosed to the target. This will help discourage or prevent 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.
There will be a strict prohibition against retaliation against the Complainant.
The target (or the target and complainant) may be suspended (preferably with pay) pending the outcome of the investigation (assuming the employment agreements permit it)
All complaints should be in writing, prepared and signed by the Complainant
Every complaint must contain full particulars (what/ where?/when? – date and time/ names of witnesses/ corroborating evidence)
If full particulars are not provided by the Complainant it will not be investigated.
Before a formal investigation is commenced the Employer will do a preliminary fact finding to determine if it merits a full investigation.
If complaint is frivolous it will NOT be investigated.
Only complaints which, if true, would be grounds for termination for cause will be investigated.
If a complaint, if proven, would not justify a termination for just cause then there will be a fact finding and the complaint will either be mediated or the target will receive discipline, training or accommodation – but nor termination for cause
If the complaint is false or made in bad faith the complaint will be dismissed and the Complainant will be subject to discipline
The potential mandates of the Investigator will be set out (investigate facts, determine credibility, or determine “guilt” or innocence).
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.
Provide the target with the Complaint and full particulars
Provide to the target a summary of the evidence it has obtained during its investigation prior to interviewing the target
(If requested) The target 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).
The interviews will be recorded and a transcript of all interviews will be prepared
(optional) The transcript of the target’s interview will be provided to the target (Zoom and Teams provide transcripts automatically) with the caveat that if there are any changes there may be a further interview
The investigation will be completed and a report provided in reasonable period of time (suggest 3 months maximum – otherwise risk a constructive dismissal)
The report will set out the facts and the conclusion of the investigator based on the mandate.
The report should contain a section for mitigating factors (e.g. was there an apology?)
The report should contain a section on recommendations (e.g. what could have been done to avoid this situation occurring again)
(optional) Give the target a copy of the draft report with an opportunity to point out any errors.
The Target will be given either summary of the Report or the complete Report
The Employer will decide whether the Report supports a finding of cause, and if, so will terminate the target
If the Report does not justify termination for cause the suspended employee will return to work
If the Report concludes the Complaint was fabricated or exaggerated the complainant may be subject to discipline