As an employee, you really do not have any rights in a workplace investigation

Picture this: You are working at your desk, beavering away, an ostensibly diligent, productive employee. You decide to take a trip to the mailbox, or check your email, and find a letter from your employer, or perhaps a stranger identifying themselves as a “workplace investigator.”

This communication says terrible things about you. You are accused of being a bully, a sexual predator, hated by your colleagues, of having created a poisonous workplace or, even worse in this age of wokedom, an “unsafe space” for some unspecified person(s) (whatever that means).

As a result, your employer has suspended you with pay. But never fear, a workplace investigation will to get to the bottom of these allegations. Yes, that’s right, a fair and impartial investigation. Your Spidey sense tingles, and you fear this is all a charade, a scam intended to railroad and bully you into leaving the company. You are likely correct.

Be afraid, be very afraid. You are entering the Kafkaesque dystopia of workplace investigation as it has evolved in Canada.

As an employee, you really do not have any rights in an investigation, whether your employer has hired a third party or is conducting it in-house.

You are not entitled to know who has made the complaint. You are not entitled to have a lawyer present when questioned about your alleged transgressions. Though in some cases, your employer may agree to let you have a lawyer attend, it is not obliged to do so. If the investigator is a lawyer, you have a better claim to your own representation but even that right is unclear.

But no matter, despite the lack of due process and relevant information — including who your accuser is or what exactly you are even being accused of — you are supposed to provide evidence concerning your activities during the interview. And if you refuse to provide evidence or anything you say is false, you can be fired for cause, even if the employer never had cause based upon what you are being investigated for. Indeed, some investigators will plant questions in the very hope you will refuse to answer or to catch you in a misstatement in order to fire you. Other employers/investigators use the investigation to obtain inculpatory evidence against you, without counsel there to protect you. It gives them an extra examination for discovery, planning their questions without your having any time to consider your response. Objectively, the process of these formal workplace investigations is generally an outrageous miscarriage of justice.

Meanwhile, such a flawed process is used by your employer to make life-altering decisions that will not only result in your dismissal, but will potentially haunt you in all future jobs.

If you think this is melodramatic, imagine how your life would change if you were fired because your employer determined you had committed sexual assault. What is your prospect of ever obtaining viable employment after that?

As trial lawyers, our job is to ferret out the truth of a given situation. There are techniques that can accomplish this fairly, which have evolved over hundreds, if not thousands, of years. We know them all. We are concerned with something called “natural justice” which, among other things, means that you are entitled to always know who your accuser is and what it is precisely that you are being accused of. We understand that allegations must be tested through cross examination and supported by hard evidence.

Time and time again, we run across workplace investigations that ignore these fundamental precepts of ascertaining the truth. In fact, it is the norm, not the exception. Most workplace investigators are motivated to get the result their client wants, in hope of getting new assignments and referrals. Workplace investigations are lucrative for the investigator, highly paid but requiring little skill compared to other areas of employment law.

Here are some true stories of flawed investigations.

In one case, a letter was sent to a client’s home accusing him of numerous indiscretions, including carrying his female employees around the office and grabbing their private parts. The letter was opened by his wife, to whom he was happily married. Imagine how pleased she was. Then imagine how pleased he was. Two weeks later, he received another letter saying that, due to lack of evidence, the allegations were being dropped. He never found out who had made the claims. So, the employer accused an employee of sexual assault, wrote a letter containing those allegations, which could have been opened by anyone, with apparently no evidence to support such egregious alleged conduct and then said, “never mind”!

We have another client who, due to his position, is a prime target for hacking and potential extortion. His employer sent him a similar email, unencrypted.

Recently another senior employee was accused of impropriety as a result of a series of events in a hotel room late at night. Fortunately, this client contacted us as soon as he was aware of the complaint. Because it was in a hotel room it was a “he said, she said” situation. However, because we are experienced trial lawyers, we went out and obtained phone records, Uber receipts, hotel receipts, the electronic log of the use of the hotel key, which showed exactly when the door to the room was opened and closed, and other hard evidence, all of which supported our client’s version of events.

As experienced trial lawyers, we do not believe anybody. It is called critical thinking. We go out and gather the evidence.

Many workplace investigators do not seem to share this characteristic. You can tell they are biased simply by the way they form allegations against an employee, completely believing the complainant’s allegations. This is particularly true in the age of “Me Too” and “wokeness.”

In another situation, we obtained evidence strongly indicating that a complainant had lied. We gave that hard evidence to the investigator on the express basis that it not be provided to the complainant. The investigator replied that, in order to be fair, they wanted to give our “hard” evidence to the complainant. We had to point out that giving our evidence to the complainant, who had already lied about a number of things, would simply allow them to tailor their evidence. The investigator does not take “sworn” evidence, which means that a complainant can lie without any fear of perjury charges. Further, if the matter goes to court, we would not have a prior sworn inconsistent statement with which to contradict the complainant. Not fair at all.

The truth is that the entire investigative process is generally a kangaroo court. It doesn’t have any legal effect, besides costing you your job, reputation and possibly, marriage. If the investigation goes south, you are left with no other option than to bring a lawsuit against your former employer. It is far, far better to nip the investigation in the bud.

If you are the victim of a workplace investigation, immediately retain a good trial lawyer before irreparable mistakes are made. Request that your lawyer accompany you to any interview. If the employer won’t agree to that, your lawyer at the very least will be able to prepare you for the ordeal ahead, and assemble any evidence available. If you go to the interview and the employer has outside counsel present, immediately get up and leave the room. You are being set up.

This entire process is a minefield of potential unfairness. In our experience, once an investigation has commenced, most of the time, the employer has already decided to dismiss you and is only using the investigation to build its case, without any of the procedural protections you would have in court. Never view the investigator as a neutral.