Howard Levitt: Here’s when to launch a workplace investigation — and how to do it right

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When should you conduct a workplace investigation? Contrary to what many human resource managers believe — and what investigators self-servingly declare — there is no legal requirement to conduct any investigation before firing someone for cause. That principle was affirmed not long ago by the Manitoba Court of Appeal. Nevertheless, there are good reasons to conduct an investigation most of the time, at least one that is limited in scope.

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For example, an investigation can prevent an employee from changing their story and could lead to admissions that bolster the employer’s case if the employee later lawyers up and/or takes legal action. An employer might also discover facts that change their decision, or uncover problems in their systems or personnel which should be corrected.

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The only time workplace investigations are legally required, is under the occupational health and safety acts of some provinces when complaints of workplace violence or harassment are made.

If you are going to conduct an investigation, here is what to do:

1. The investigator should be selected with care. It should be someone who all parties are going to respect, and who the court will give some weight to their findings. However, those findings do not bind the court and are inherently hearsay since the court must ultimately make its own decision after hearing the first-hand evidence called by the parties.

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There are serious disadvantages to using a lawyer as an investigator. It provides the employee the right to have their own counsel during the investigation which will hinder your fact-finding process. The expense is generally much greater, often six figures. Most significantly, lawyers are trained in cross-examination, rather than in neutral investigation. If you are going to use a lawyer, use a retired judge with experience in fact-finding and the inherent respect of all stakeholders.

But generally, someone internal is best, who knows your company policies, knows the individuals involved, and can get moving immediately. Every company, medium or large, should have someone trained in investigations.

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The only time I would consider an external investigator is if the complaint is against someone in the C-suite, such that the dependence of an internal employee is compromised.

But make no mistake. External investigators want future assignments and referrals and, in my experience, want to provide the company with the report that it wants.

2. The investigator should conduct the investigation within the context of existing policies and any existing harassment or grievance procedures.

3. If possible, do not suspend the employee against whom the allegation is being made because that makes their position untenable as everyone assumes their guilt. For the same reason, try to conduct the investigation in two or three days and not let it drag on over weeks and months. That paralyzes the workplace and creates apprehensions of guilt and conflicts.

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4. Be cognizant of the rights of the accused as much as of the complainant and do not assume guilt.

5. The mandate must be clearly defined so that the investigator does not go off on a frolic of their own, deal with matters that are not germane and cause further employment ruptures.

6. It is necessary that everyone interviewed be informed that they must keep the fact and content of their interview confidential, and informed as well that it is cause for discipline, potentially for discharge, if disclosed. Gossip will kill the effectiveness of an investigation. It also renders the accused’s position untenable.

7. The process is simple. Talk to the complainant; speak to the witnesses, then to the accused; ascertain any witnesses from that person; and then go back to the appropriate witnesses to clarify any new information. A detailed — preferably taped — record should be retained. Everyone involved should be allowed to fully explain their version of events. All relevant documentation should be gathered, including any videos, emails and policies.

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8. The investigator must strictly maintain the confidentially of all information obtained, and that information should be kept confidential for all time.

9.  An investigation report should be prepared and the complainant and the accused informed of the findings. The employer must determine what, if any, discipline or system changes are appropriate.

10. It must be made clear that there should be no retaliation for bringing forward complaints unless it can be clearly shown to be made in bad faith. In addition to discipline, appropriate counselling and other support should be considered for anyone deleteriously impacted by the conduct.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

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