While employment law in Canada may be becoming an increasingly complex morass with each passing year, it can still all ultimately be distilled down to one very important word (which isn’t the case with most areas of the law): FAIRNESS.
This is not an oversimplification. Fairness is where it’s at in employment law, regardless of whether one is talking about “natural justice” or “procedural fairness” or “duty to accommodate” or “health and safety” or “workplace harassment” or “job performance." Cases will often be decided in favour of the party who acted with “fairness,” though employers should understand that because of perceived employer-employee power imbalances, courts and tribunals may impose a much higher duty of fairness on employers than is imposed on employees.
When an employer needs to launch an investigation in the workplace, perhaps because of allegations for harassment, or because of a worker injury, or because of production problems, or because of financial irregularities, fairness is the word to watch for. Although the form an acceptable workplace investigation takes is far more flexible and contextual than for an investigation undertaken by a government regulator or law enforcement, there are a few big things NEVER to do in such a workplace investigation if you want to avoid being accused of breaching fairness.
1. Pre-Judge the Outcome
You wouldn’t be investigating if you didn’t have suspicions. Suspicion does not prejudge an outcome. But a mind closed to other explanations, people or sources does equate to pre-judging. So do everything in your power to make your investigation sufficiently broad and thoughtful so as to consider different possible outcomes, document those possibilities, and justify how you came to your one conclusion.
The key here is not only having an open mind, but being able to later prove that openness to others through the process, evidence collected, and results.
2. Use a Witness as the Investigator
Not every workplace investigation will justify bringing in an external investigator. But if you are using someone internal, you can’t be both a witness and conduct the investigation at the same time. So a line manager who supervises subject workers is usually not best placed to conduct an investigation into those same workers, and a human resources officer who has already been dealing with issues from workers likewise might no be ideally situated to investigate them. Someone with no inside knowledge or preconceived notions is most likely to later be considered to be most impartial investigators, even if assigning someone fresh to a workplace might seem initially to be an inefficient way to learn about a situation.
The degree of “space” you can provide between your investigator and the subjects of investigation may be a direct function of the size of your organization. With some small businesses, it may be very difficult to pick an investigator who has no prior knowledge of a matter. But you should still pick someone who is not a key witness, especially if credibility of parties is an issue.
3. Use a Decision Maker as an Investigator
Every workplace investigation should bear the hallmarks of independence and objectivity. Both independence and objectivity are relative, in the sense that employees are entitled to a duty of fairness, but the extreme procedural safeguards that are in place for those accused of criminal or regulatory offences need not be replicated for workplace investigations that only have civil consequences. However, the decision maker’s views of the outcome of an investigation could become coloured by being the one gathering the evidence. So it’s best to split the investigation and the decision making functions, where the investigator will present a written report on the results of the fact finding and copies of the evidence to the decision maker who will then decide what action is justified by those findings based on that evidence.
4. Leak the Contents of the Investigation Within the Organization
Ask everyone you speak with as an investigator to keep your questions confidential. While you should put the statements of some witnesses to other witnesses for confirmation or refutation, do not provide those witnesses with written summaries of the evidence of others, as that could then circulate within the organization.
Targets or subjects of investigations have a right to be told about the nature of the investigation in some detail prior to giving a statement. Non-target witnesses are entitled to a much lesser degree of disclosure, but should still be told that an investigation is underway, and be informed of the general parameters of the investigation. No one reviewing laters results of an investigation will look fondly on trick or surprise questions as a way to unfairly pry information out of people. However, an employer can demand reasonable cooperation from employees concerning an on the job conduct investigation.
5. Rely on Only One Kind of Evidence
A great workplace investigation goes beyond just witness statements. People’s memories can be surprisingly poor - even shortly after events - and some witnesses may be very forthright, while others may be evasive about the truth. Thus corroborating evidence that doesn’t take the form of witness statements is key, wherever possible. Documents and electronic communications will be the main corroborating evidence to look for, though other types of evidence like video surveillance, business records of financial transactions, travel records, and timekeeping could all be helpful.
Devoting some of your IT department's time, or retaining an external IT consultant, could be the best move to make in a workplace investigation, as contemporaneous records of workplace electronic communications, websites visited, keywords searched, and documents worked on, may create a far more reliable record of what happened than any witnesses statements. There will be workplace cases, especially involving workers or industries that don't create masses of information, where electronic communication records may be of limited help, but even electronic entry pass timestamps could be helpful. Keep your mind open to all possible information sources, and act quickly to secure those sources before periodic data deletion schedules are triggered.
Gordon S. Campbell is a lawyer who assists public and private employers with conducting and employees with responding to workplace investigations. He is the author of The Investigator's Legal Handbook (Carswell, 2006; 2nd ed 2014) and Le manuel jurisdique de l'enquêteur (Yvon Blais, 2010). He has served up to the Executive level with the Government of Canada, as a Member Representative at the RCMP, and regularly appears before professional conduct tribunals and courts.